Book I Theories in Criminal Law G.R. No. 96132 June 26, 1992 ORIEL vs.

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

After joint trial before the Regional Trial Court of Quezon City, Branch 104, the accused-petitioner was convicted for violations of BP Blg. 22 on the four (4) cases, as follows: . . . finding the accused-appellant guilty beyond reasonable doubt of the offense of violations of B.P. Blg. 22 and sentencing the accused to imprisonment for one year in each Criminal Case Nos. Q-35693, Q-35695 and Q-35696 and to pay to complainant the respective amounts reflected in subject checks. (Ibid., pp. 25, 27) Reviewing the above and the affirmation of the above-stated decision of the court a quo, this Court is intrigued about the outcome of the checks subject of the cases which were intended by the parties, the petitioner on the one hand and the private complainant on the other, to cover the "warranty deposit" equivalent to the 30% requirement of the financing company. Corazon Teng is one of the officers of Mancor, the supplier of the equipment subject of the Leasing Agreement subject of the high financing scheme undertaken by the petitioner as lessee of the repair service equipment, which was arranged at the instance of Mrs. Teng from the very beginning of the transaction. By the nature of the "warranty deposit" amounting to P29,790.00 corresponding to 30% of the "purchase/lease" value of the equipments subject of the transaction, it is obvious that the "cash out" made by Mrs. Teng was not used by petitioner who was just paying rentals for the equipment. It would have been different if petitioner opted to purchase the pieces of equipment on or about the termination of the lease-purchase agreement in which case he had to pay the additional amount of the warranty deposit which should have formed part of the purchase price. As the transaction did not ripen into a purchase, but remained a lease with rentals being paid for the loaned equipment, which were pulled out by the Lessor (Mancor) when the petitioner failed to continue paying possibly due to economic constraints or business failure, then it is lawful and just that the warranty deposit should not be charged against the petitioner. To charge the petitioner for the refund of a "warranty deposit" which he did not withdraw as it was not his own account, it having remained with LS Finance, is to even make him pay an unjust "debt", to say the least, since petitioner did not receive the amount in question. All the while, said amount was in the safekeeping of the financing company, which is managed, supervised and operated by the corporation officials and employees of LS Finance. Petitioner did not even know that the checks he issued were turned over by Joey Gomez to Mrs. Teng, whose operation was kept from his knowledge on her instruction. This fact alone evoke suspicion that the transaction is irregular and immoral per se, hence, she specifically requested Gomez not to divulge the source of the "warranty deposit". It is intriguing to realize that Mrs. Teng did not want the petitioner to know that it was she who "accommodated" petitioner's request for Joey Gomez, to source out the needed funds for the "warranty deposit". Thus it unfolds the kind of transaction that is shrouded with mystery, gimmickry and doubtful legality. It is in simple language, a scheme whereby Mrs. Teng as the supplier of the equipment in the name of her corporation, Mancor, would be able to "sell or lease" its goods as in this case, and at the same time, privately financing those who desperately need petty accommodations as this one. This modus operandi has in so many instances victimized unsuspecting businessmen, who likewise need protection from the law, by availing of the deceptively called "warranty deposit" not realizing that they also fall prey to leasing equipment under the guise of a lease-purchase agreement when it is a scheme designed to skim off business clients. This maneuvering has serious implications especially with respect to the threat of the penal sanction of the law in issue, as in this case. And, with a willing court system to apply the full harshness of the special law in question, using the "mala prohibitia" doctrine, the noble objective of the law is tainted with materialism and opportunism in the highest, degree. This angle is bolstered by the fact that since the petitioner or lessee referred to above in the lease agreement knew that the amount of P29,790.00 subject of the cases, were mere accommodation-arrangements with somebody thru Joey Gomez, petitioner did not even attempt to secure the refund of said amount from LS Finance, notwithstanding the agreement provision to the contrary. To argue that after the termination of the lease agreement, the warranty deposit should be refundable in full to Mrs. Teng by petitioner when he did not cash out the "warranty deposit" for his official or personal use, is to stretch the nicety of the alleged law (B.P. No, 22) violated. For all intents and purposes, the law was devised to safeguard the interest of the banking system and the legitimate public checking account user. It did not intend to shelter or favor nor encourage users of the system to enrich themselves through manipulations and circumvention of the noble purpose and objective of the law. Least should it be used also as a means of jeopardizing honest-to-goodness transactions with some color of "get-rich" scheme to the prejudice of well-meaning businessmen who are the pillars of society. Under the utilitarian theory, the "protective theory" in criminal law, "affirms that the primary function of punishment is the protective (sic) of society against actual and potential wrongdoers." It is not clear whether petitioner could be considered as having actually committed the wrong sought to be punished in the offense charged, but on the other hand, it can be safely said that the actuations of Mrs. Carolina Teng amount to that of potential wrongdoers whose operations should also be clipped at some point in time in order that the unwary public will not be failing prey to such a vicious transaction (Aquino, The Revised Penal Code, 1987 Edition, Vol. I, P. 11) Corollary to the above view, is the application of the theory that "criminal law is founded upon that moral disapprobation . . . of actions which are immoral, i.e., which are detrimental (or dangerous) to those conditions upon which depend the existence

and progress of human society. This disappropriation is inevitable to the extent that morality is generally founded and built upon a certain concurrence in the moral opinions of all. . . . That which we call punishment is only an external means of emphasizing moral disapprobation the method of punishment is in reality the amount of punishment," ( Ibid., P. 11, citing People v. Roldan Zaballero, CA 54 O.G. 6904, Note also Justice Pablo's view in People v. Piosca and Peremne, 86 Phil. 31). Thus, it behooves upon a court of law that in applying the punishment imposed upon the accused, the objective of retribution of a wronged society, should be directed against the "actual and potential wrongdoers." In the instant case, there is no doubt that petitioner's four (4) checks were used to collateralize an accommodation, and not to cover the receipt of an actual "account or credit for value" as this was absent, and therefore petitioner should not be punished for mere issuance of the checks in question. Following the aforecited theory, in petitioner's stead the "potential wrongdoer", whose operation could be a menace to society, should not be glorified by convicting the petitioner. While in case of doubt, the case should have been resolved in favor of the accused, however, by the open admission of the appellate court below, oven when the ultimate beneficiary of the "warranty deposit" is of doubtful certainty, the accused was convicted, as shown below: Nor do We see any merit in appellant's claim that the obligation of the accused to complainant had been extinguished by the termination of the leasing agreement by the terms of which the warranty deposit advanced by complainant was refundable to the accused as lessee and that as the lessor L.S. Finance neither made any liquidation of said amount nor returned the same to the accused, it may he assumed that the amount was already returned to the complainant. For these allegations, even if true, do not change the fact, admitted by appellant and established by the evidence, that the four checks were originally issued on account or for value. And as We have already observed, in order that there may be a conviction under the from paragraph of Section 2 of B.P. Blg 22 with respect to the element of said offense that the check should have been made and issued on account or for value it is sufficient, all the other elements of the offense being present, that the check must have been drawn and issued in payment of an obligation. Moreover, even granting, arguendo, that the extinguishment, after the issuance of the checks, of the obligation in consideration of which the checks were issued, would have resulted in placing the case at bar beyond the purview of the prohibition in Section 1 of BP Blg. 22, there is no satisfactory proof that there was such an extinguishment in the present case. Appellee aptly points out that appellant had not adduced any direct evidence to prove that the amount advanced by the complainant to cover the warranty deposit must already have been returned to her. (Rollo, p. 30) It is indubitable that the respondent Court of Appeals even disregarded the cardinal rule that the accused is presumed innocent until proven guilty beyond reasonable doubt. On the contrary, the same court even expected the petitioner-appellant to adduce evidence to show that he was not guilty of the crime charged. But how can be produce documents showing that the warranty deposit has already been taken back by Mrs. Teng when she is an officer of Mancor which has interest in the transaction, besides being personally interested in the profit of her side-line. Thus, even if she may have gotten back the value of the accommodation, she would still pursue collecting from the petitioner since she had in her possession the checks that "bounced". That the court a quo merely relied on the law, without looking into the real nature of the warranty deposit is evident from the following pronouncement: And the trail court concluded that there is no question that the accused violated BP Blg. 22, which is a special statutory law, violations of which are mala prohibita. The court relied on the rule that in cases of mala prohibita, the only inquiry is whether or not the law had been violated, proof of criminal intent not being necessary for the conviction of the accused, the acts being prohibited for reasons of public policy and the defenses of good faith and absence of criminal intent being unavailing in prosecutions for said offenses." (Ibid., p. 26) The crux of the matter rests upon the reason for the drawing of the postdated checks by the petitioner, i.e., whether they were drawn or issued "to apply on account or for value", as required under Section 1 of B.P. Blg, 22. When viewed against the following definitions of the catch-terms "warranty" and "deposit", for which the postdated checks were issued or drawn, all the more, the alleged crime could not have been committed by petitioner: a) Warranty A promise that a proposition of fact is true. A promise that certain facts are truly as they are represented to be and that they will remain so: . . . (Black's Law Dictionary, Fifth Edition, (1979) p. 1423) A cross-reference to the following term shows: Fitness for Particular Purpose: Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is, unless excluded or modified, an implied warranty that the goods shall be fit for such purpose, (Ibid., p. 573)

b) Deposit: Money lodged with a person as an earnest or security for the performance of some contract, to be forfeited if the depositor fails in his undertaking. It may be deemed to be part payment and to that extent may constitute the purchaser the actual owner of the estate. To commit to custody, or to lay down; to place; to put. To lodge for safe- keeping or as a pledge to intrust to the care of another. The act of placing money in the custody of a bank or banker, for safety or convenience, to be withdrawn at the will of the depositor or under rules and regulations agreed on. Also, the money so deposited, or the credit which the depositor receives for it. Deposit, according to its commonly accepted and generally understood among bankers and by the public, includes not only deposits payable on demand and for which certificates, whether interest-bearing or not, may be issued, payable on demand, or on certain notice or at a fixed future time. (Ibid., pp. 394-395) Furthermore, the element of "knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason . . . is inversely applied in this case. From the very beginning, petitioner never hid the fact that he did not have the funds with which to put up the warranty deposit and as a matter of fact, he openly intimated this to the vital conduit of the transaction, Joey Gomez, to whom petitioner was introduced by Mrs. Teng. It would have been different if this predicament was not communicated to all the parties he dealt with regarding the lease agreement the financing of which was covered by L.S. Finance Management. WHEREFORE, the appealed decision is REVERSED and the accused-petitioner is hereby ACQUITTED of the crime charged. SO ORDERED. Enactment of penal statutes G.R. No. 167011 December 11, 2008 ERLINDA R. ROMUALDEZ, petitioners,

SPOUSES CARLOS S. ROMUALDEZ and vs. COMMISSION ON ELECTIONS and DENNIS GARAY, respondents. RESOLUTION CHICO-NAZARIO, J.:

For resolution is the Motion for Reconsideration filed by petitioner Spouses Carlos Romualdez and Erlinda Romualdez on 26 May 2008 from the Decision of this Court dated 30 April 2008, affirming the Resolutions, dated 11 June 2004 and 27 January 2005 of the COMELEC En Banc. We find that petitioner has not raised substantially new grounds to justify the reconsideration sought. Instead, petitioner presents averments that are mere rehashes of arguments already considered by the Court. There is, thus, no cogent reason to warrant a reconsideration of this Courts Decision. Similarly, we reject the contentions put forth by esteemed colleagues Mr. Justice Dante O. Tinga in his Dissent, dated 2 September 2008, which are also mere reiterations of his earlier dissent against the majority opinion. Mr. Justice Tingas incessant assertions proceed from the wrong premise. To be clear, this Court did not intimate that penal statutes are beyond scrutiny. In our Decision, dated 30 April 2008, this Court emphasized the critical limitations by which a criminal statute may be challenged. We drew a lucid boundary between an "on-its-face" invalidation and an "as applied" challenge. Unfortunately, this is a distinction which Mr. Justice Tinga has refused to understand. Let it be underscored that "on-its-face" invalidation of penal statutes, as is sought to be done by petitioners in this case, may not be allowed. Thus, we said: The void-for-vagueness doctrine holds that a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application. However, this Court has imposed certain limitations by which a criminal statute, as in the challenged law at bar, may be scrutinized. This Court has declared that facial invalidation or an "on-its-face" invalidation of criminal statutes is not appropriate. We have so enunciated in no uncertain terms in Romualdez v. Sandiganbayan, thus: In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that 'one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.' As has been pointed out, 'vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while

statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant.'" (underscoring supplied) "To this date, the Court has not declared any penal law unconstitutional on the ground of ambiguity." While mentioned in passing in some cases, the void-for-vagueness concept has yet to find direct application in our jurisdiction. In Yu Cong Eng v. Trinidad, the Bookkeeping Act was found unconstitutional because it violated the equal protection clause, not because it was vague. Adiong v. Comelec decreed as void a mere Comelec Resolution, not a statute. Finally, Santiago v. Comelec held that a portion of RA 6735 was unconstitutional because of undue delegation of legislative powers, not because of vagueness. Indeed, an "on-its-face" invalidation of criminal statutes would result in a mass acquittal of parties whose cases may not have even reached the courts. Such invalidation would constitute a departure from the usual requirement of "actual case and controversy" and permit decisions to be made in a sterile abstract context having no factual concreteness. In Younger v. Harris, this evil was aptly pointed out by the U.S. Supreme Court in these words: "[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, x x x ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided." For this reason, generally disfavored is an on-its-face invalidation of statutes, described as a "manifestly strong medicine" to be employed "sparingly and only as a last resort." In determining the constitutionality of a statute, therefore, its provisions that have allegedly been violated must be examined in the light of the conduct with which the defendant has been charged. (Emphasis supplied.)1 Neither does the listing by Mr. Justice Tinga of what he condemns as offenses under Republic Act No. 8189 convince this Court to overturn its ruling. What is crucial in this case is the rule set in our case books and precedents that a facial challenge is not the proper avenue to challenge the statute under consideration. In our Decision of 30 April 2008, we enunciated that "the opinions of the dissent which seek to bring to the fore the purported ambiguities of a long list of provisions in Republic Act No. 8189 can be deemed as a facial challenge."2 On this matter, we held: An appropriate "as applied" challenge in the instant Petition should be limited only to Section 45 (j) in relation to Sections 10 (g) and (j) of Republic Act No. 8189the provisions upon which petitioners are charged. An expanded examination of the law covering provisions which are alien to petitioners case would be antagonistic to the rudiment that for judicial review to be exercised, there must be an existing case or controversy that is appropriate or ripe for determination, and not conjectural or anticipatory.3 In conclusion, I reiterate that the doctrine embodied in Romualdez and Estrada remains good law. The rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes maybe hampered. No prosecution would be possible. A strong criticism against employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go against the grain of the doctrinal requirement of an existing and concrete controversy before judicial power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it. As I have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test will impair the States ability to deal with crime. If warranted, there would be nothing that can hinder an accused from defeating the States power to prosecute on a mere showing that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as applied to him. As structured, Section 45 enumerates acts deemed election offenses under Republic Act No. 8189. The evident intent of the legislature in including in the catena of election offenses the violation of any of the provisions of Republic Act No. 8189, is to subsume as punishable, not only the commission of proscribed acts, but also the omission of acts enjoined to be observed. On this score, the declared policy of Republic Act No. 8189 is illuminating. The law articulates the policy of the State to systematize the present method of registration in order to establish a clean, complete, permanent and updated list of voters. In People v. Gatchalian, the Court had the occasion to rule on the validity of the provision of the Minimum Wage Law, which in like manner speaks of a willful violation of "any of the provisions of this Act." This Court upheld the assailed law, and in no uncertain terms declared that the provision is all-embracing, and the same must include what is enjoined in the Act which embodies the very fundamental purpose for which the law has been adopted. Finally, as the records would show, petitioners managed to set up an intelligent defense against the informations filed below. By clearly enunciating their defenses against the accusations hurled at them, and denying their commission thereof, petitioners allegation of vagueness must necessarily be rejected. Petitioners failed to overcome the heavy presumption of constitutionality in favor of the law. The constitutionality must prevail in the absence of substantial grounds for overthrowing the same.

The phraseology in Section 45(j) has been employed by Congress in a number of laws which have not been declared unconstitutional: 1) The Cooperative Code Section 124(4) of Republic Act No. 6938 reads: "Any violation of any provision of this Code for which no penalty is imposed shall be punished by imprisonment of not less than six (6) months nor more than one (1) year and a fine of not less than One Thousand Pesos (P1,000.00) or both at the discretion of the Court." 2) The Indigenous Peoples Rights Act Section 72 of Republic Act No. 8371 reads in part: "Any person who commits violation of any of the provisions of this Act, such as, but not limited to " 3) The Retail Trade Liberalization Act Section 12, Republic Act No. 8762, reads: "Any person who would be found guilty of violation of any provisions of this Act shall be punished by imprisonment of not less than six (6) years and one (1) day but not more than eight (8) years, and a fine of at least One Million (P1,000,000.00) but not more than Twenty Million (P20,000,000.00). For reasons so stated, we deny the Motion for Reconsideration. SO ORDERED. G.R. No. 178552 October 5, 2010

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South Network (SSN) for NonState Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS, JR., Petitioners, vs. ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY ADVISER, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178554 KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President Joselito V. Ustarez and Secretary General Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN RIGHTS, represented by its Executive Director Daisy Arago, Petitioners, vs. HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in his capacity as Acting Secretary of National Defense, HON. RAUL GONZALES, in his capacity as Secretary of Justice, HON. RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government, GEN. HERMOGENES ESPERON, in his capacity as AFP Chief of Staff, and DIRECTOR GENERAL OSCAR CALDERON, in his capacity as PNP Chief of Staff, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178581 BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR REFORMS, INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN NG DAMAYANG MAHIHIRAP

(KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY (HEAD), AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR., SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR. CAROLINA PAGADUAN-ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE LESUS, RITA BAUA, REY CLARO CASAMBRE, Petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO. DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 178890 KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented herein by Dr. Edelina de la Paz, and representing the following organizations: HUSTISYA, represented by Evangeline Hernandez and also on her own behalf; DESAPARECIDOS, represented by Mary Guy Portajada and also on her own behalf, SAMAHAN NG MGA EX-DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA (SELDA), represented by Donato Continente and also on his own behalf, ECUMENICAL MOVEMENT FOR JUSTICE AND PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF CHURCH PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado, OCARM, Petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179157 THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M. Bautista, COUNSELS FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and FORMER SENATORS SERGIO OSMEA III and WIGBERTO E. TAADA, Petitioners, vs. EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL (ATC),Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179461 BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-ST), PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN

(BALATIK), SAMAHAN AT UGNAYAN NG MGA MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSOS RURAL POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NIO LAJARA, TEODORO REYES, FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO, SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners, vs. GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMEN T SECRETARY RONALDO PUNO, DEPARTMENT OF FINCANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents. DECISION CARPIO MORALES, J.: Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372), "An Act to Secure the State and Protect our People from Terrorism," otherwise known as the Human Security Act of 2007, 1 signed into law on March 6, 2007. Following the effectivity of RA 9372 on July 15, 2007, 2 petitioner Southern Hemisphere Engagement Network, Inc., a nongovernment organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and Human Rights (CTUHR), represented by their respective officers3 who are also bringing the action in their capacity as citizens, filed a petition for certiorari and prohibition docketed as G.R. No. 178554. The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance Binding Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham, represented by their respective officers, 4 and joined by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos SiguionReyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a petition for certiorari and prohibition docketed as G.R. No. 178581. On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan ng mga ExDetainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and Promotion of Church Peoples Response (PCPR), which were represented by their respective officers 5 who are also bringing action on their own behalf, filed a petition for certiorari and prohibition docketed as G.R. No. 178890. On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty (CODAL), 6 Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmea III, and Wigberto E. Taada filed a petition for certiorari and prohibition docketed as G.R. No. 179157. Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and organizations mostly based in the Southern Tagalog Region,7 and individuals8 followed suit by filing on September 19, 2007 a petition for certiorari and prohibition docketed as G.R. No. 179461 that replicates the allegations raised in the BAYAN petition in G.R. No. 178581. Impleaded as respondents in the various petitions are the Anti-Terrorism Council 9 composed of, at the time of the filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National Security Adviser Norberto Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as members. All the petitions, except that of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar Calderon. The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the National Intelligence Coordinating Agency, National Bureau of Investigation,

Bureau of Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-Money Laundering Center, Philippine Center on Transnational Crime, and the PNP intelligence and investigative elements. The petitions fail. Petitioners resort to certiorari is improper Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is clear: Section 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-judicial functions hasacted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. (Emphasis and underscoring supplied) Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted without or in excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of jurisdiction. The impropriety of certiorari as a remedy aside, the petitions fail just the same. In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the case.10 In the present case, the dismal absence of the first two requisites, which are the most essential, renders the discussion of the last two superfluous. Petitioners lack locus standi Locus standi or legal standing requires a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.11 Anak Mindanao Party-List Group v. The Executive Secretary12 summarized the rule on locus standi, thus: Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question on standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. [A] party who assails the constitutionality of a statute must have a direct and personal interest. It must show not only that the law or any governmental act is invalid, but also that it sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that it suffers thereby in some indefinite way. It must show that it has been or is about to be denied some right or privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or penalties by reason of the statute or act complained of. For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action. (emphasis and underscoring supplied.) Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by the government, especially the military; whereas individual petitioners invariably invoke the "transcendental importance" doctrine and their status as citizens and taxpayers. While Chavez v. PCGG13 holds that transcendental public importance dispenses with the requirement that petitioner has experienced or is in actual danger of suffering direct and personal injury, cases involving the constitutionality of penal legislation belong to an altogether different genus of constitutional litigation. Compelling State and societal interests in the proscription of harmful conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus standi.

Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces any charge under RA 9372. KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege that they have been subjected to "close security surveillance by state security forces," their members followed by "suspicious persons" and "vehicles with dark windshields," and their offices monitored by "men with military build." They likewise claim that they have been branded as "enemies of the [S]tate."14 Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out that petitioners have yet to show any connection between the purported "surveillance" and the implementation of RA 9372. BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take judicial notice of respondents alleged action of tagging them as militant organizations fronting for the Communist Party of the Philippines (CPP) and its armed wing, the National Peoples Army (NPA). The tagging, according to petitioners, is tantamount to the effects of proscription without following the procedure under the law.15 The petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations. The Court cannot take judicial notice of the alleged "tagging" of petitioners. Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable. Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no constructive knowledge.16 (emphasis and underscoring supplied.) No ground was properly established by petitioners for the taking of judicial notice. Petitioners apprehension is insufficient to substantiate their plea. That no specific charge or proscription under RA 9372 has been filed against them, three years after its effectivity, belies any claim of imminence of their perceived threat emanating from the so-called tagging. The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well on their supposed "link" to the CPP and NPA. They fail to particularize how the implementation of specific provisions of RA 9372 would result in direct injury to their organization and members. While in our jurisdiction there is still no judicially declared terrorist organization, the United States of America 17 (US) and the European Union18 (EU) have both classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court takes note of the joint statement of Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration would adopt the US and EU classification of the CPP and NPA as terrorist organizations. 19Such statement notwithstanding, there is yet to be filed before the courts an application to declare the CPP and NPA organizations as domestic terrorist or outlawed organizations under RA 9372. Again, RA 9372 has been in effect for three years now. From July 2007 up to the present, petitioner-organizations have conducted their activities fully and freely without any threat of, much less an actual, prosecution or proscription under RA 9372. Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives Saturnino Ocampo, Teodoro Casio, Rafael Mariano and Luzviminda Ilagan,20 urged the government to resume peace negotiations with the NDF by removing the impediments thereto, one of which is the adoption of designation of the CPP and NPA by the US and EU as foreign terrorist organizations. Considering the policy statement of the Aquino Administration 21 of resuming peace talks with the NDF, the government is not imminently disposed to ask for the judicial proscription of the CPP-NPA consortium and its allied organizations. More important, there are other parties not before the Court with direct and specific interests in the questions being raised.22 Of recent development is the filing of the first case for proscription under Section 1723 of RA 9372 by the Department of Justice before the Basilan Regional Trial Court against the Abu Sayyaf Group. 24 Petitioner-organizations do not in the least allege any link to the Abu Sayyaf Group.

Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by alluding to past rebellion charges against them. In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in 2006 against then Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro Casio and Saturnino Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and accused of being front organizations for the Communist movement were petitioner-organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE.26 The dismissed rebellion charges, however, do not save the day for petitioners. For one, those charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by this Court. For another, rebellion is defined and punished under the Revised Penal Code. Prosecution for rebellion is not made more imminent by the enactment of RA 9372, nor does the enactment thereof make it easier to charge a person with rebellion, its elements not having been altered. Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under RA 9372. It cannot be overemphasized that three years after the enactment of RA 9372, none of petitioners has been charged. Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance to those arrested or detained under the law. The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP or any of its members with standing.27 The IBP failed to sufficiently demonstrate how its mandate under the assailed statute revolts against its constitutional rights and duties. Moreover, both the IBP and CODAL have not pointed to even a single arrest or detention effected under RA 9372. Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political surveillance," also lacks locus standi. Prescinding from the veracity, let alone legal basis, of the claim of "political surveillance," the Court finds that she has not shown even the slightest threat of being charged under RA 9372. Similarly lacking in locus standi are former Senator Wigberto Taada and Senator Sergio Osmea III, who cite their being respectively a human rights advocate and an oppositor to the passage of RA 9372. Outside these gratuitous statements, no concrete injury to them has been pinpointed. Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No. 178552 also conveniently state that the issues they raise are of transcendental importance, "which must be settled early" and are of "far-reaching implications," without mention of any specific provision of RA 9372 under which they have been charged, or may be charged. Mere invocation of human rights advocacy has nowhere been held sufficient to clothe litigants with locus standi. Petitioners must show an actual, or immediate danger of sustaining, direct injury as a result of the laws enforcement. To rule otherwise would be to corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared by the general public. Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is proper only when there is an exercise of the spending or taxing power of Congress, 28 whereas citizen standing must rest on direct and personal interest in the proceeding.29 RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its implementation, while none of the individual petitioner-citizens has alleged any direct and personal interest in the implementation of the law. It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not establish locus standi. Evidence of a direct and personal interest is key. Petitioners fail to present an actual case or controversy By constitutional fiat, judicial power operates only when there is an actual case or controversy. Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. 30 (emphasis and underscoring supplied.) As early as Angara v. Electoral Commission,31 the Court ruled that the power of judicial review is limited to actual cases or controversies to be exercised after full opportunity of argument by the parties. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.

An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.32 Information Technology Foundation of the Philippines v. COMELEC33 cannot be more emphatic: [C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. The controversy must be justiciabledefinite and concrete, touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other hand; that is, it must concern a real and not merely a theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. (Emphasis and underscoring supplied) Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly Urbanized City was held to be premature as it was tacked on uncertain, contingent events.34 Similarly, a petition that fails to allege that an application for a license to operate a radio or television station has been denied or granted by the authorities does not present a justiciable controversy, and merely wheedles the Court to rule on a hypothetical problem.35 The Court dismissed the petition in Philippine Press Institute v. Commission on Elections 36 for failure to cite any specific affirmative action of the Commission on Elections to implement the assailed resolution. It refused, in Abbas v. Commission on Elections,37 to rule on the religious freedom claim of the therein petitioners based merely on a perceived potential conflict between the provisions of the Muslim Code and those of the national law, there being no actual controversy between real litigants. The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad infinitum. The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any constitutional interest suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by the requirement that there must be sufficient facts to enable the Court to intelligently adjudicate the issues.38 Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project, 39 allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since plaintiffs faced a "credible threat of prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief."40 The plaintiffs therein filed an action before a federal court to assail the constitutionality of the material support statute, 18 U.S.C. 2339B (a) (1), 41proscribing the provision of material support to organizations declared by the Secretary of State as foreign terrorist organizations. They claimed that they intended to provide support for the humanitarian and political activities of two such organizations. Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition clearly shows that the challenged prohibition forbids the conduct or activity that a petitioner seeks to do, as there would then be a justiciable controversy.42 Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged provisions of RA 9372 forbid constitutionally protected conduct or activity that they seek to do. No demonstrable threat has been established, much less a real and existing one. Petitioners obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist fronts" in no way approximate a credible threat of prosecution. From these allegations, the Court is being lured to render an advisory opinion, which is not its function.43 Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original jurisdiction. Then again, declaratory actions characterized by "double contingency," where both the activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for lack of ripeness.44 The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any power granted by law may be abused.45 Allegations of abuse must be anchored on real events before courts may step in to settle actual controversies involving rights which are legally demandable and enforceable. A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of constitutional litigation are rightly excepted Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of terrorism 46 under RA 9372 in that terms like "widespread and extraordinary fear and panic among the populace" and "coerce the government to give in to an unlawful demand" are nebulous, leaving law enforcement agencies with no standard to measure the prohibited acts.

Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find no application in the present case since these doctrines apply only to free speech cases; and that RA 9372 regulates conduct, not speech. For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of thought on whether the void-for-vagueness and overbreadth doctrines are equally applicable grounds to assail a penal statute. Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the two doctrines to free speech cases. They particularly cite Romualdez v. Hon. Sandiganbayan47 and Estrada v. Sandiganbayan.48 The Court clarifies. At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 549 of the Anti-Graft and Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court stated that "the overbreadth and the vagueness doctrines have special application only to free-speech cases," and are "not appropriate for testing the validity of penal statutes."50 It added that, at any rate, the challenged provision, under which the therein petitioner was charged, is not vague.51 While in the subsequent case of Romualdez v. Commission on Elections,52 the Court stated that a facial invalidation of criminal statutes is not appropriate, it nonetheless proceeded to conduct a vagueness analysis, and concluded that the therein subject election offense53 under the Voters Registration Act of 1996, with which the therein petitioners were charged, is couched in precise language.54 The two Romualdez cases rely heavily on the Separate Opinion 55 of Justice Vicente V. Mendoza in the Estrada case, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free from ambiguity respecting the definition of the crime of plunder. The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a "facial" invalidation as opposed to an "as-applied" challenge. He basically postulated that allegations that a penal statute is vague and overbroad do not justify a facial review of its validity. The pertinent portion of the Concurring Opinion of Justice Mendoza, which was quoted at length in the main Estrada decision, reads: A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant." Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety. Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. It constitutes a departure from the case and

controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. But, as the U.S. Supreme Court pointed out in Younger v. Harris [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort," and is generally disfavored. In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged.56 (Underscoring supplied.) The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as grounds for a facial or as-applied challenge against a penal statute (under a claim of violation of due process of law) or a speech regulation (under a claim of abridgement of the freedom of speech and cognate rights). To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane. A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.57 The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.58 As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand what a statute prohibits and will accordingly refrain from that behavior, even though some of it is protected.59 A "facial" challenge is likewise different from an "as-applied" challenge. Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.60 Justice Mendoza accurately phrased the subtitle61 in his concurring opinion that the vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully mount a facialchallenge against a criminal statute on either vagueness or overbreadth grounds. The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect" on protected speech, the exercise of which should not at all times be abridged. 62 As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear an "in terrorem effect" in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights.63 The Court reiterated that there are "critical limitations by which a criminal statute may be challenged" and "underscored that an on-its-face invalidation of penal statutes x x x may not be allowed."64 [T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A strong criticism against employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go against the grain of the doctrinal requirement of an existing and concrete controversy before judicial power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it. As I have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test will impair the States ability to deal with crime. If warranted, there would be nothing that can hinder an accused from defeating the States power to prosecute on a mere showing that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as applied to him. 65 (Emphasis and underscoring supplied)

It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases . By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants. The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad laws "very existence may cause others not before the court to refrain from constitutionally protected speech or expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.66 (Emphasis in the original omitted; underscoring supplied.) In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases,67 observed that the US Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First Amendment, 68 and that claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate onlyspoken words.69 In Virginia v. Hicks,70 it was held that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or speech-related conduct. Attacks on overly broad statutes are justified by the "transcendent value to all society of constitutionally protected expression."71 Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness analysis of the definition of "terrorism" in RA 9372 is legally impermissible absent an actual or imminent charge against them While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness test on the AntiPlunder Law as applied to the therein petitioner, finding, however, that there was no basis to review the law "on its face and in its entirety."72 It stressed that "statutes found vague as a matter of due process typically are invalidated only 'as applied' to a particular defendant."73 American jurisprudence74 instructs that "vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity." For more than 125 years, the US Supreme Court has evaluated defendants claims that criminal statutes are unconstitutionally vague, developing a doctrine hailed as "among the most important guarantees of liberty under law."75 In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in examining the constitutionality of criminal statutes. In at least three cases, 76 the Court brought the doctrine into play in analyzing an ordinance penalizing the non-payment of municipal tax on fishponds, the crime of illegal recruitment punishable under Article 132(b) of the Labor Code, and the vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these three cases, similar to those in the two Romualdez and Estrada cases, were actually charged with the therein assailed penal statute, unlike in the present case. There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following elements may be culled: (1) the offender commits an act punishable under any of the cited provisions of the Revised Penal Code, or under any of the enumerated special penal laws; (2) the commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; and (3) the offender is actuated by the desire to coerce the government to give in to an unlawful demand. In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that the element of "unlawful demand" in the definition of terrorism77 must necessarily be transmitted through some form of expression protected by the free speech clause. The argument does not persuade. What the law seeks to penalize is conduct, not speech. Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually committed to trigger the operation of the key qualifying phrases in the other elements of the crime, including the coercion of the government to

accede to an "unlawful demand." Given the presence of the first element, any attempt at singling out or highlighting the communicative component of the prohibition cannot recategorize the unprotected conduct into a protected speech. Petitioners notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of an element of the crime. Almost every commission of a crime entails some mincing of words on the part of the offender like in declaring to launch overt criminal acts against a victim, in haggling on the amount of ransom or conditions, or in negotiating a deceitful transaction. An analogy in one U.S. case 78 illustrated that the fact that the prohibition on discrimination in hiring on the basis of race will require an employer to take down a sign reading "White Applicants Only" hardly means that the law should be analyzed as one regulating speech rather than conduct. Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech. This holds true a fortiori in the present case where the expression figures only as an inevitable incident of making the element of coercion perceptible. [I]t is true that the agreements and course of conduct here were as in most instances brought about through speaking or writing. But it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was, in part, initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society.79 (italics and underscoring supplied) Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a prohibited conduct.80Since speech is not involved here, the Court cannot heed the call for a facial analysis.1avvphi1 IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject penal statute as applied to the therein petitioners inasmuch as they were actually charged with the pertinent crimes challenged on vagueness grounds. The Court in said cases, however, found no basis to review the assailed penal statute on its face and in its entirety. In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced a "credible threat of prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." As earlier reflected, petitioners have established neither an actual charge nor a credible threat of prosecution under RA 9372. Even a limited vagueness analysis of the assailed definition of "terrorism" is thus legally impermissible. The Court reminds litigants that judicial power neither contemplates speculative counseling on a statutes future effect on hypothetical scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in Congress. WHEREFORE, the petitions are DISMISSED. SO ORDERED. G.R. No. 148560 November 19, 2001 ESTRADA, petitioner,

JOSEPH EJERCITO vs. SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents. DECISION BELLOSILLO, J.:

JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the rights of the individual from the vast powers of the State and the inroads of societal pressure. But even as he draws a sacrosanct line demarcating the limits on individuality beyond which the State cannot tread - asserting that "individual spontaneity" must be allowed to flourish with very little regard to social interference - he veritably acknowledges that the exercise of rights and liberties is imbued with a civic obligation, which society is justified in enforcing at all cost, against those who would endeavor to withhold fulfillment. Thus he says The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.

Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With the end of maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate a system of laws that would compel obeisance to its collective wisdom and inflict punishment for non-observance. The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social order, carrying with it a new formulation of fundamental rights and duties more attuned to the imperatives of contemporary socio-political ideologies. In the process, the web of rights and State impositions became tangled and obscured, enmeshed in threads of multiple shades and colors, the skein irregular and broken. Antagonism, often outright collision, between the law as the expression of the will of the State, and the zealous attempts by its members to preserve their individuality and dignity, inevitably followed. It is when individual rights are pitted against State authority that judicial conscience is put to its severest test. Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 ( An Act Defining and Penalizing the Crime of Plunder),1 as amended by RA 7659,2 wishes to impress upon us that the assailed law is so defectively fashioned that it crosses that thin but distinct line which divides the valid from the constitutionally infirm. He therefore makes a stringent call for this Court to subject the Plunder Law to the crucible of constitutionality mainly because, according to him, (a) it suffers from the vice of vagueness; (b) it dispenses with the "reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes the element of mens rea in crimes already punishable under The Revised Penal Code,all of which are purportedly clear violations of the fundamental rights of the accused to due process and to be informed of the nature and cause of the accusation against him. Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder: Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: (1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public office concerned; (3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities, or government owned or controlled corporations and their subsidiaries; (4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (6) By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1 (d) hereof, in the aggregate amount or total value of at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances as provided by the Revised Penal Code shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State (underscoring supplied). Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring supplied). On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive,

for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 ( Anti-Graft and Corrupt Practices Act ), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713 ( The Code of Conduct and Ethical Standards for Public Officials and Employees ); (d) Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA 6085). On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for preliminary investigation with respect to specification "d" of the charges in the Information in Crim. Case No. 26558; and, for reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c" to give the accused an opportunity to file counter-affidavits and other documents necessary to prove lack of probable cause. Noticeably, the grounds raised were only lack of preliminary investigation, reconsideration/reinvestigation of offenses, and opportunity to prove lack of probable cause. The purported ambiguity of the charges and the vagueness of the law under which they are charged were never raised in that Omnibus Motion thus indicating the explicitness and comprehensibility of the Plunder Law. On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding that "a probable cause for the offense of PLUNDER exists to justify the issuance of warrants for the arrest of the accused." On 25 June 2001 petitioner's motion for reconsideration was denied by the Sandiganbayan. On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that the facts alleged therein did not constitute an indictable offense since the law on which it was based was unconstitutional for vagueness, and that the Amended Information for Plunder charged more than one (1) offense. On 21 June 2001 the Government filed its Opposition to the Motion to Quash , and five (5) days later or on 26 June 2001 petitioner submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash. As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for resolution in the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder Law requires less evidence for proving the predicate crimes of plunder and therefore violates the rights of the accused to due process; and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is within the power of Congress to so classify it. Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic principle that a legislative measure is presumed to be in harmony with the Constitution. 3 Courts invariably train their sights on this fundamental rule whenever a legislative act is under a constitutional attack, for it is the postulate of constitutional adjudication. This strong predilection for constitutionality takes its bearings on the idea that it is forbidden for one branch of the government to encroach upon the duties and powers of another. Thus it has been said that the presumption is based on the deference the judicial branch accords to its coordinate branch - the legislature. If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law with full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the majority. Hence in determining whether the acts of the legislature are in tune with the fundamental law, courts should proceed with judicial restraint and act with caution and forbearance. Every intendment of the law must be adjudged by the courts in favor of its constitutionality, invalidity being a measure of last resort. In construing therefore the provisions of a statute, courts must first ascertain whether an interpretation is fairly possible to sidestep the question of constitutionality. In La Union Credit Cooperative, Inc. v. Yaranon 4 we held that as long as there is some basis for the decision of the court, the constitutionality of the challenged law will not be touched and the case will be decided on other available grounds. Yet the force of the presumption is not sufficient to catapult a fundamentally deficient law into the safe environs of constitutionality. Of course, where the law clearly and palpably transgresses the hallowed domain of the organic law, it must be struck down on sight lest the positive commands of the fundamental law be unduly eroded. Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the constitution, for absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt is to sustain. "5 And petitioner has miserably failed in the instant case to discharge his burden and overcome the presumption of constitutionality of the Plunder Law. As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of the acts, conduct and conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty and particularity. Thus 1. That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons; 2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary

benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and, 3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at leastP50,000,000.00. As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently guide the judge in its application; the counsel, in defending one charged with its violation; and more importantly, the accused, in identifying the realm of the proscribed conduct. Indeed, it can be understood with little difficulty that what the assailed statute punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of at least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law. In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable certainty the various elements of the offense which petitioner is alleged to have committed: "The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses formerPRESIDENT OF THE REPUBLIC OF THE PHILIPPINES , Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and JohnDOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows: That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES , by himselfAND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES , through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS ( P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in considerationOF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; (b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, forHIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS ( P200,000,000.00) tobacco excise tax share allocated for the province of Ilocos Sur under R.A. No. 7171, by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE DOES; (italic supplied). (c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT , the Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS , and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS ( P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS ( P744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS ( P1,847,578,057.50); AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN

THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS ( P189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLEPCI BANK UNDER THE ACCOUNT NAME 'JOSE VELARDE;' (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES , in the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17)AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK." We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will confuse petitioner in his defense. Although subject to proof, these factual assertions clearly show that the elements of the crime are easily understood and provide adequate contrast between the innocent and the prohibited acts. Upon such unequivocal assertions, petitioner is completely informed of the accusations against him as to enable him to prepare for an intelligent defense. Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms "combination" and "series" in the key phrase "a combination or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to petitioner, render the Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the right to be informed of the nature and cause of the accusation against him, hence, violative of his fundamental right to due process. The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them; 6 much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder Law. Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification,7 unless it is evident that the legislature intended a technical or special legal meaning to those words.8 The intention of the lawmakers - who are, ordinarily, untrained philologists and lexicographers - to use statutory phraseology in such a manner is always presumed. Thus, Webster's New Collegiate Dictionary contains the following commonly accepted definition of the words "combination" and "series:" Combination - the result or product of combining; the act or process of combining. To combine is to bring into such close relationship as to obscure individual characters. Series - a number of things or events of the same class coming one after another in spatial and temporal succession. That Congress intended the words "combination" and "series" to be understood in their popular meanings is pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law: DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991 REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say combination, we actually mean to say, if there are two or more means, we mean to say that number one and two or number one and something else are included, how about a series of the same act? For example, through misappropriation, conversion, misuse, will these be included also? REP. GARCIA: Yeah, because we say a series. REP. ISIDRO: Series. REP. GARCIA: Yeah, we include series. REP. ISIDRO: But we say we begin with a combination. REP. GARCIA: Yes. REP. ISIDRO: When we say combination, it seems that REP. GARCIA: Two.

REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration. REP. GARCIA: No, no, not twice. REP. ISIDRO: Not twice? REP. GARCIA: Yes. Combination is not twice - but combination, two acts. REP. ISIDRO: So in other words, thats it. When we say combination, we mean, two different acts. It cannot be a repetition of the same act. REP. GARCIA: That be referred to series, yeah. REP. ISIDRO: No, no. Supposing one act is repeated, so there are two. REP. GARCIA: A series. REP. ISIDRO: Thats not series. Its a combination. Because when we say combination or series, we seem to say that two or more, di ba? REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good suggestion because if it is only one act, it may fall under ordinary crime but we have here a combination or series of overt or criminal acts. So x x x x REP. GARCIA: Series. One after the other eh di.... SEN. TANADA: So that would fall under the term "series?" REP. GARCIA: Series, oo. REP. ISIDRO: Now, if it is a combination, ano, two misappropriations.... REP. GARCIA: Its not... Two misappropriations will not be combination. Series. REP. ISIDRO: So, it is not a combination? REP. GARCIA: Yes. REP. ISIDRO: When you say combination, two different? REP. GARCIA: Yes. SEN. TANADA: Two different. REP. ISIDRO: Two different acts. REP. GARCIA: For example, ha... REP. ISIDRO: Now a series, meaning, repetition... DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989 SENATOR MACEDA: In line with our interpellations that sometimes "one" or maybe even "two" acts may already result in such a big amount, on line 25, would the Sponsor consider deleting the words "a series of overt or," to read, therefore: "or conspiracy COMMITTED by criminal acts such as." Remove the idea of necessitating "a series." Anyway, the criminal acts are in the plural. SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this. THE PRESIDENT: Probably two or more would be....

SENATOR MACEDA: Yes, because "a series" implies several or many; two or more. SENATOR TANADA: Accepted, Mr. President x x x x THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say "acts of plunder" there should be, at least, two or more. SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President. Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3). On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning for "combination" and "series," it would have taken greater pains in specifically providing for it in the law. As for "pattern," we agree with the observations of the Sandiganbayan 9 that this term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly understood, the term 'overall unlawful scheme' indicates a 'general plan of action or method' which the principal accused and public officer and others conniving with him follow to achieve the aforesaid common goal. In the alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal. Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is manifestly misplaced. The doctrine has been formulated in various ways, but is most commonly stated to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.10 But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be "saved" by proper construction, while no challenge may be mounted as against the second whenever directed against such activities.11 With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.12 It must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes. Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify a facial review of its validity The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law."13 The overbreadth doctrine, on the other hand, decrees that "a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."14

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity."15 The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." 16 In Broadrick v. Oklahoma,17 the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."18 As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others."19 In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." 20 As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant."21 Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety. Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected.22 It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts.23 But, as the U.S. Supreme Court pointed out in Younger v. Harris24 [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort,"25 and is generally disfavored.26 In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged.27 In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so tenaciously claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where none exists, cannot be created by dissecting parts and words in the statute to furnish support to critics who cavil at the want of scientific precision in the law. Every provision of the law should be construed in relation and with reference to every other part. To be sure, it will take more than nitpicking to overturn the well-entrenched presumption of constitutionality and validity of the Plunder Law. Afortiori, petitioner cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who voted for its passage, petitioner must be aware that the law was extensively deliberated upon by the Senate and its appropriate committees by reason of which he even registered his affirmative vote with full knowledge of its legal implications and sound constitutional anchorage. The parallel case of Gallego v. Sandiganbayan28 must be mentioned if only to illustrate and emphasize the point that courts are loathed to declare a statute void for uncertainty unless the law itself is so imperfect and deficient in its details, and is susceptible of no reasonable construction that will support and give it effect. In that case, petitioners Gallego andAgoncillo challenged the constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act for being vague. Petitioners posited, among others, that the term "unwarranted" is highly imprecise and elastic with no common law meaning or settled definition by prior judicial or administrative precedents; that, for its vagueness, Sec. 3, par. (e), violates due process in that it does not give fair warning or sufficient notice of what it seeks to penalize. Petitioners further

argued that the Information charged them with three (3) distinct offenses, to wit: (a) giving of "unwarranted" benefits through manifest partiality; (b) giving of "unwarranted" benefits through evident bad faith; and, (c) giving of "unwarranted" benefits through gross inexcusable negligence while in the discharge of their official function and that their right to be informed of the nature and cause of the accusation against them was violated because they were left to guess which of the three (3) offenses, if not all, they were being charged and prosecuted. In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act does not suffer from the constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith," and "gross and inexcusable negligence" merely describe the different modes by which the offense penalized in Sec. 3, par. (e), of the statute may be committed, and the use of all these phrases in the same Information does not mean that the indictment charges three (3) distinct offenses. The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified; unauthorized (Webster, Third International Dictionary, p. 2514); or without justification or adequate reason (Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19). The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make unlawful the act of the public officer in: x x x or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as amended). It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a public officer, in the discharge of his official, administrative or judicial functions, in giving any private party benefits, advantage or preference which is unjustified, unauthorized or without justification or adequate reason, through manifest partiality, evident bad faith or gross inexcusable negligence. In other words, this Court found that there was nothing vague or ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in its primary and general acceptation. Consequently, in that case, petitioners' objection thereto was held inadequate to declare the section unconstitutional. On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law circumvents the immutable obligation of the prosecution to prove beyond reasonable doubt the predicate acts constituting the crime of plunder when it requires only proof of a pattern of overt or criminal acts showing unlawful scheme or conspiracy SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for plunder, as in all other crimes, the accused always has in his favor the presumption of innocence which is guaranteed by the Bill of Rights, and unless the State succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the accused is entitled to an acquittal.29 The use of the "reasonable doubt" standard is indispensable to command the respect and confidence of the community in the application of criminal law. It is critical that the moral force of criminal law be not diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs has confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. This "reasonable doubt" standard has acquired such exalted stature in the realm of constitutional law as it gives life to the Due Process Clausewhich protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged.30 The following exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the deliberations in the floor of the House of Representatives are elucidating DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990 MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the information must be proven beyond reasonable doubt. If we will prove only one act and find him guilty of the other acts enumerated in the information, does that not work against the right of the accused especially so if the amount committed, say, by falsification is less than P100 million, but the totality of the crime committed is P100 million since there is malversation, bribery, falsification of public document, coercion, theft? MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the crime charged. For example, Mr. Speaker, there is an

enumeration of the things taken by the robber in the information three pairs of pants, pieces of jewelry. These need not be proved beyond reasonable doubt, but these will not prevent the conviction of a crime for which he was charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved two. Now, what is required to be proved beyond reasonable doubt is the element of the offense. MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of the amount is very important, I feel that such a series of overt criminal acts has to be taken singly. For instance, in the act of bribery, he was able to accumulate only P50,000 and in the crime of extortion, he was only able to accumulate P1 million. Now, when we add the totality of the other acts as required under this bill through the interpretation on the rule of evidence, it is just one single act, so how can we now convict him? MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime, there is a need to prove that element beyond reasonable doubt. For example, one essential element of the crime is that the amount involved is P100 million. Now, in a series of defalcations and other acts of corruption in the enumeration the total amount would be P110 or P120 million, but there are certain acts that could not be proved, so, we will sum up the amounts involved in those transactions which were proved. Now, if the amount involved in these transactions, proved beyond reasonable doubt, is P100 million, then there is a crime of plunder (underscoring supplied). It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum of proof in the crime of plunder. The burden still remains with the prosecution to prove beyond any iota of doubt every fact or element necessary to constitute the crime. The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal misconception of the import of that provision. What the prosecution needs to prove beyond reasonable doubt is only a number of acts sufficient to form a combination or series which would constitute a pattern and involving an amount of at least P50,000,000.00. There is no need to prove each and every other act alleged in the Information to have been committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an Information for plunder with having committed fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50) raids, it being sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that they amounted to at leastP50,000,000.00.31 A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to prove beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate acts. This conclusion is consistent with reason and common sense. There would be no other explanation for a combination or series of overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or acquire ill gotten wealth." The prosecution is therefore not required to make a deliberate and conscious effort to prove pattern as it necessarily follows with the establishment of a series or combination of the predicate acts. Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a very important element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a substantive element of the crime," such that without it the accused cannot be convicted of plunder JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without applying Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the commission of the acts complained of? ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised Penal Code, but not plunder. JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable doubt without applying Section 4, can you not have a conviction under the Plunder Law? ATTY. AGABIN: Not a conviction for plunder, your Honor. JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged for violation of the Plunder Law? ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law x x x x JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond reasonable doubt on the acts charged constituting plunder?

ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it contains a substantive element of the crime of plunder. So, there is no way by which we can avoid Section 4. JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes charged are concerned that you do not have to go that far by applying Section 4? ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the crime of plunder and that cannot be avoided by the prosecution.32 We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and opening clause of Sec. 4 is clear and unequivocal: SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder. Being a purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of the accused but only operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law. Indubitably, even without invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the prosecution is to present sufficient evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of the accused beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and vitiated for the reasons advanced by petitioner, it may simply be severed from the rest of the provisions without necessarily resulting in the demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080 provides for a separability clause Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person or circumstance is held invalid, the remaining provisions of this Act and the application of such provisions to other persons or circumstances shall not be affected thereby. Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of the nullity of some of its provisions, assuming that to be the case although it is not really so, all the provisions thereof should accordingly be treated independently of each other, especially if by doing so, the objectives of the statute can best be achieved. As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which requires proof of criminal intent. Thus, he says, in his Concurring Opinion x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner. In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he claims the statute is void, petitioner cites the following remarks of Senator Taada made during the deliberation on S.B. No. 733: SENATOR TAADA . . . And the evidence that will be required to convict him would not be evidence for each and every individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit this crime of plunder.33 However, Senator Taada was discussing 4 as shown by the succeeding portion of the transcript quoted by petitioner: SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of Evidence, which, in the Gentleman's view, would provide for a speedier and faster process of attending to this kind of cases? SENATOR TAADA: Yes, Mr. President . . .34 Senator Taada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of the crime must be proved and the requisite mens rea must be shown. Indeed, 2 provides that Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court.

The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the offender is determined by his criminal intent. It is true that 2 refers to "any person who participates with the said public officer in the commission of an offense contributing to the crime of plunder." There is no reason to believe, however, that it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean."35 Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable by reclusion perpetua to death. Other heinous crimes are punished with death as a straight penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court held in People v. Echegaray:36 The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either because life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely disrupt the normal course of his or her growth as a human being . . . . Seen in this light, the capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses involving minors or resulting in the death of the victim in the case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where the victim is detained for more than three days or serious physical injuries were inflicted on the victim or threats to kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation, destructive arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their very nature. There are crimes, however, in which the abomination lies in the significance and implications of the subject criminal acts in the scheme of the larger socio-political and economic context in which the state finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted the government and impoverished the population, the Philippine Government must muster the political will to dismantle the culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures of society and the psyche of the populace. [With the government] terribly lacking the money to provide even the most basic services to its people, any form of misappropriation or misapplication of government funds translates to an actual threat to the very existence of government, and in turn, the very survival of the people it governs over. Viewed in this context, no less heinous are the effects and repercussions of crimes like qualified bribery, destructive arson resulting in death, and drug offenses involving government officials, employees or officers, that their perpetrators must not be allowed to cause further destruction and damage to society. The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se37 and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of the acts. To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional grounds. Suffice it to say however that it is now too late in the day for him to resurrect this long dead issue, the same having been eternally consigned by People v. Echegaray38 to the archives of jurisprudential history. The declaration of this Court therein that RA 7659 is constitutionally valid stands as a declaration of the State, and becomes, by necessary effect, assimilated in the Constitution now as an integral part of it. Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of time as unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers of the government. Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and economically catastrophic looting of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly tissues of grand-scale corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to ultimately eradicate this scourge and thus secure society against the avarice and other venalities in public office. These are times that try men's souls. In the checkered history of this nation, few issues of national importance can equal the amount of interest and passion generated by petitioner's ignominious fall from the highest office, and his eventual prosecution and trial under a virginal statute. This continuing saga has driven a wedge of dissension among our people that may linger for a long time. Only by responding to the clarion call for patriotism, to rise above factionalism and prejudices, shall we emerge triumphant in the midst of ferment. PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is DISMISSED for lack of merit. SO ORDERED.

G.R. No. L-45127 May 5, 1989 PEOPLE OF THE PHILIPPINES, represented by the Provincial Fiscal of Leyte, petitioner, vs. HON. JUDGE AUXENCIO C. DACUYCUY, CELESTINO S. MATONDO, SEGUNDINO A, CAVAL and CIRILO M. ZANORIA, respondents. The Office of the Solicitor General for petitioner. Adelino B. Sitoy for private respondents.

REGALADO, J.: Involved in this special civil action is the unique situation, to use an euphemistic phrase, of an alternative penal sanction of imprisonment imposed by law but without a specification as to the term or duration thereof. As a consequence of such legislative faux pas or oversight, the petition at bar seeks to set aside the decision of the then Court of First Instance of Leyte, Branch IV, dated September 8,1976, 1 penned by herein respondent judge and granting the petition for certiorari and prohibition with preliminary injunction filed by herein private respondents and docketed therein as Civil Case No. 5428, as well as his resolution of October 19, 1976 2 denying the motions for reconsideration filed by the parties therein. Subject of said decision were the issues on jurisdiction over violations of Republic Act No. 4670, otherwise known as the Magna Carta for Public School Teachers, and the constitutionality of Section 32 thereof. In a complaint filed by the Chief of Police of Hindang, Leyte on April 4, 1975, herein private respondents Celestino S. Matondo, Segundino A. Caval and Cirilo M. Zanoria, public school officials of Leyte, were charged before the Municipal Court of Hindang, Leyte in Criminal Case No. 555 thereof for violation of Republic Act No. 4670. The case was set for arraignment and trial on May 29, 1975. At the arraignment, the herein private respondents, as the accused therein, pleaded not guilty to the charge. Immediately thereafter, they orally moved to quash the complaint for lack of jurisdiction over the offense allegedly due to the correctional nature of the penalty of imprisonment prescribed for the offense. The motion to quash was subsequently reduced to writing on June 13, 1975. 3 On August 21, 1975, the municipal court denied the motion to quash for lack of merit. 4 On September 2, 1975, private respondents filed a motion for the reconsideration of the aforesaid denial order on the same ground of lack of jurisdiction, but with the further allegation that the facts charged do not constitute an offense considering that Section 32 of Republic Act No. 4670 is null and void for being unconstitutional. In an undated order received by the counsel for private respondents on October 20,1975, the motion for reconsideration was denied. 5 On October 26, 1975, private respondents filed a petitions 6 for certiorari and prohibition with preliminary injunction before the former Court of First Instance of Leyte, Branch VIII, where it was docketed as Civil Case No. B-622, to restrain the Municipal Judge, Provincial Fiscal and Chief of Police of Hindang, Leyte from proceeding with the trial of said Criminal Case No. 555 upon the ground that the former Municipal Court of Hindang had no jurisdiction over the offense charged. Subsequently, an amended petition 7 alleged the additional ground that the facts charged do not constitute an offense since the penal provision, which is Section 32 of said law, is unconstitutional for the following reasons: (1) It imposes a cruel and unusual punishment, the term of imprisonment being unfixed and may run to reclusion perpetua; and (2) It also constitutes an undue delegation of legislative power, the duration of the penalty of imprisonment being solely left to the discretion of the court as if the latter were the legislative department of the Government. On March 30, 1976, having been advised that the petition of herein private respondents was related to Criminal Case No. 1978 for violation of Presidential Decree No. 442 previously transferred from Branch VIII to Branch IV of the erstwhile Court of First Instance of Leyte, Judge Fortunate B. Cuna of the former branch transferred the said petition to the latter branch for further proceedings and where it was subsequently docketed therein as Civil Case No. 5428. 8 On March 15, 1976, the petitioner herein filed an opposition to the admission of the said amended petitions 9 but respondent judge denied the same in his resolution of April 20, 1976. 10 On August 2, 1976, herein petitioner filed a supplementary memorandum in answer to the amended petition. 11 On September 8, 1976, respondent judge rendered the aforecited challenged decision holding in substance that Republic Act No. 4670 is valid and constitutional but cases for its violation fall outside of the jurisdiction of municipal and city courts, and remanding the case to the former Municipal Court of Hindang, Leyte only for preliminary investigation. As earlier stated, on September 25, 1976, petitioner filed a motion for reconsideration. 12 Likewise, private respondents filed a motion for reconsideration of the lower court's decision but the same was limited only to the portion thereof which sustains the validity of Section 32 of Republic Act No. 4670. 13 Respondent judge denied both motions for reconsideration in a resolution dated October 19, 1976. 14

The instant petition to review the decision of respondent judge poses the following questions of law: (1) Whether the municipal and city courts have jurisdiction over violations of Republic Act No. 4670; and (2) Whether Section 32 of said Republic Act No. 4670 is constitutional. We shall resolve said queries in inverse order, since prior determination of the constitutionality of the assailed provision of the law involved is necessary for the adjudication of the jurisdictional issue raised in this petition. 1. The disputed section of Republic Act No. 4670 provides: Sec. 32. Penal Provision. A person who shall wilfully interfere with, restrain or coerce any teacher in the exercise of his rights guaranteed by this Act or who shall in any other manner commit any act to defeat any of the provisions of this Act shall, upon conviction, be punished by a fine of not less than one hundred pesos nor more than one thousand pesos, or by imprisonment, in the discretion of the court. (Emphasis supplied). Two alternative and distinct penalties are consequently imposed, to wit: (a) a fine ranging from P100.00 to P1,000.00; or (b) imprisonment. It is apparent that the law has no prescribed period or term for the imposable penalty of imprisonment. While a minimum and maximum amount for the penalty of fine is specified, there is no equivalent provision for the penalty of imprisonment, although both appear to be qualified by the phrase "in the discretion of the court. Private respondents contend that a judicial determination of what Congress intended to be the duration of the penalty of imprisonment would be violative of the constitutional prohibition against undue delegation of legislative power, and that the absence of a provision on the specific term of imprisonment constitutes that penalty into a cruel and unusual form of punishment. Hence, it is vigorously asserted, said Section 32 is unconstitutional. The basic principle underlying the entire field of legal concepts pertaining to the validity of legislation is that in the enactment of legislation a constitutional measure is thereby created. In every case where a question is raised as to the constitutionality of an act, the court employs this doctrine in scrutinizing the terms of the law. In a great volume of cases, the courts have enunciated the fundamental rule that there is a presumption in favor of the constitutionality of a legislative enactment. 15 It is contended that Republic Act No. 4670 is unconstitutional on the ground that the imposable but indefinite penalty of imprisonment provided therein constitutes a cruel and unusual punishment, in defiance of the express mandate of the Constitution. This contention is inaccurate and should be rejected. We note with approval the holding of respondent judge that The rule is established beyond question that a punishment authorized by statute is not cruel or unusual or disproportionate to the nature of the offense unless it is a barbarous one unknown to the law or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Based on the principle, our Supreme Court has consistently overruled contentions of the defense that the punishment of fine or imprisonment authorized by the statute involved is cruel and unusual. (Legarda vs. Valdez, 1 Phil. 146; U.S. vs. Pico, 18 Phil. 386; People vs. Garay, 2 ACR 149; People vs. Estoista 93 Phil. 647; People vs. Tiu Ua. 96 Phil. 738; People vs. Dionisio, 22 SCRA 1299). The language of our Supreme Court in the first of the cases it decided after the last world war is appropriate here: The Constitution directs that 'Excessive fines shall not be imposed, nor cruel and unusual punishment inflicted.' The prohibition of cruel and unusual punishments is generally aimed at the form or character of the punishment rather than its severity in respect of duration or amount, and apply to punishments which never existed in America, or which public sentiment has regarded as cruel or obsolete (15 Am. Jur., p. 172), for instance there (sic) inflicted at the whipping post, or in the pillory, burning at the stake, breaking on the wheel, disemboweling, and the like (15 Am. Jur. Supra, Note 35 L.R.A. p. 561). Fine and imprisonment would not thus be within the prohibition.' (People vs. de la Cruz, 92 Phil. 906). 16 The question that should be asked, further, is whether the constitutional prohibition looks only to the form or nature of the penalty and not to the proportion between the penalty and the crime. The answer thereto may be gathered from the pronouncement in People vs. Estoista, 17 where an "excessive" penalty was upheld as constitutional and was imposed but with a recommendation for executive clemency, thus: ... If imprisonment from 5 to 10 years is out of proportion to the present case in view of certain circumstances, the law is not to be declared unconstitutional for this reason. The constitutionality of an act of the legislature is not to be judged in the light of exceptional cases. Small transgressors for which the heavy net was not spread are, like small fishes, bound to be caught, and it is to meet such a situation as this that courts are advised to make a recommendation to the Chief Executive for clemency or reduction of the penalty... That the penalty is grossly disproportionate to the crime is an insufficient basis to declare the law unconstitutional on the ground that it is cruel and unusual. The fact that the punishment authorized by the statute is severe does not make it cruel or

unusual. 18 In addition, what degree of disproportion the Court will consider as obnoxious to the Constitution has still to await appropriate determination in due time since, to the credit of our legislative bodies, no decision has as yet struck down a penalty for being "cruel and unusual" or "excessive." We turn now to the argument of private respondents that the entire penal provision in question should be invalidated as an 49 "undue delegation of legislative power, the duration of penalty of imprisonment being solely left to the discretion of the court as if the lattter were the legislative department of the government." Petitioner counters that the discretion granted therein by the legislature to the courts to determine the period of imprisonment is a matter of statutory construction and not an undue delegation of legislative power. It is contended that the prohibition against undue delegation of legislative power is concerned only with the delegation of power to make laws and not to interpret the same. It is also submitted that Republic Act No. 4670 vests in the courts the discretion, not to fix the period of imprisonment, but to choose which of the alternative penalties shall be imposed. Respondent judge sustained these theses of petitioner on his theory that "the principle of separation of powers is not violated by vesting in courts discretion as to the length of sentence or amount of fine between designated limits in sentencing persons convicted of crime. In such instance, the exercise of judicial discretion by the courts is not an attempt to use legislative power or to prescribe and create a law but is an instance of the administration of justice and the application of existing laws to the facts of particular cases." 19 What respondent judge obviously overlooked is his own reference to penalties "between designated limits." In his commentary on the Constitution of the United States, Corwin wrote: .. At least three distinct ideas have contributed to the development of the principle that legislative power cannot be delegated. One is the doctrine of separation of powers: Why go to the trouble of separating the three powers of government if they can straightway remerge on their own motion? The second is the concept of due process of laws which precludes the transfer of regulatory functions to private persons. Lastly, there is the maxim of agency "Delegata potestas non potest delegari." 20 An apparent exception to the general rule forbidding the delegation of legislative authority to the courts exists in cases where discretion is conferred upon said courts. It is clear, however, that when the courts are said to exercise a discretion, it must be a mere legal discretion which is exercised in discerning the course prescribed by law and which, when discerned, it is the duty of the court to follow. 21 So it was held by the Supreme Court of the United States that the principle of separation of powers is not violated by vesting in courts discretion as to the length of sentence or the amount of fine between designated limits in sentencing persons convicted of a crime. 22 In the case under consideration, the respondent judge erronneously assumed that since the penalty of imprisonment has been provided for by the legislature, the court is endowed with the discretion to ascertain the term or period of imprisonment. We cannot agree with this postulate. It is not for the courts to fix the term of imprisonment where no points of reference have been provided by the legislature. What valid delegation presupposes and sanctions is an exercise of discretion to fix the length of service of a term of imprisonment which must be encompassed within specific or designated limits provided by law, the absence of which designated limits well constitute such exercise as an undue delegation, if not-an outright intrusion into or assumption, of legislative power. Section 32 of Republic Act No. 4670 provides for an indeterminable period of imprisonment, with neither a minimum nor a maximum duration having been set by the legislative authority. The courts are thus given a wide latitude of discretion to fix the term of imprisonment, without even the benefit of any sufficient standard, such that the duration thereof may range, in the words of respondent judge, from one minute to the life span of the accused. Irremissibly, this cannot be allowed. It vests in the courts a power and a duty essentially legislative in nature and which, as applied to this case, does violence to the rules on separation of powers as well as the non-delegability of legislative powers. This time, the preumption of constitutionality has to yield. On the foregoing considerations, and by virtue of the separability clause in Section 34 of Republic Act No. 4670, the penalty of imprisonment provided in Section 32 thereof should be, as it is hereby, declared unconstitutional. It follows, therefore, that a ruling on the proper interpretation of the actual term of imprisonment, as may have been intended by Congress, would be pointless and academic. It is, however, worth mentioning that the suggested application of the socalled rule or principle of parallelism, whereby a fine of P1,000.00 would be equated with one year of imprisonment, does not merit judicial acceptance. A fine, whether imposed as a single or as an alternative penalty, should not and cannot be reduced or converted into a prison term; it is to be considered as a separate and independent penalty consonant with Article 26 of the Revised Penal Code. 23 It is likewise declared a discrete principal penalty in the graduated scales of penalties in Article 71 of said Code. There is no rule for transmutation of the amount of a fine into a term of imprisonment. Neither does the Code contain any provision that a fine when imposed in conjunction with imprisonment is subordinate to the latter penalty. In sum, a fine is as much a principal penalty as imprisonment. Neither is subordinate to the other. 24

2. It has been the consistent rule that the criminal jurisdiction of the court is determined by the statute in force at the time of the commencement of the action. 25 With the deletion by invalidation of the provision on imprisonment in Section 32 of Republic Act No. 4670, as earlier discussed, the imposable penalty for violations of said law should be limited to a fine of not less than P100.00 and not more than P1,000.00, the same to serve as the basis in determining which court may properly exercise jurisdiction thereover. When the complaint against private respondents was filed in 1975, the pertinent law then in force was Republic Act No. 296, as amended by Republic Act No. 3828, under which crimes punishable by a fine of not more than P 3,000.00 fall under the original jurisdiction of the former municipal courts. Consequently, Criminal Case No. 555 against herein private respondents falls within the original jurisdiction of the Municipal Trial Court of Hindang, Leyte. WHEREFORE, the decision and resolution of respondent judge are hereby REVERSED and SET ASIDE. Criminal Case No. 555 filed against private respondents herein is hereby ordered to be remanded to the Municipal Trial Court of Hindang, Leyte for trial on the merits. SO ORDERED. Diplomatic Immunity G.R. No. 142396 February 11, 2003 MINUCHER, petitioner,

KHOSROW vs. HON. COURT OF APPEALS and ARTHUR SCALZO, respondents. DECISION VITUG, J.:

Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425, otherwise also known as the "Dangerous Drugs Act of 1972," was filed against petitioner Khosrow Minucher and one Abbas Torabian with the Regional Trial Court, Branch 151, of Pasig City. The criminal charge followed a "buy-bust operation" conducted by the Philippine police narcotic agents in the house of Minucher, an Iranian national, where a quantity of heroin, a prohibited drug, was said to have been seized. The narcotic agents were accompanied by private respondent Arthur Scalzo who would, in due time, become one of the principal witnesses for the prosecution. On 08 January 1988, Presiding Judge Eutropio Migrino rendered a decision acquitting the two accused. On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC), Branch 19, of Manila for damages on account of what he claimed to have been trumped-up charges of drug trafficking made by Arthur Scalzo. The Manila RTC detailed what it had found to be the facts and circumstances surrounding the case. "The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines to study in the University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he was appointed Labor Attach for the Iranian Embassies in Tokyo, Japan and Manila, Philippines. When the Shah of Iran was deposed by Ayatollah Khomeini, plaintiff became a refugee of the United Nations and continued to stay in the Philippines. He headed the Iranian National Resistance Movement in the Philippines. "He came to know the defendant on May 13, 1986, when the latter was brought to his house and introduced to him by a certain Jose Iigo, an informer of the Intelligence Unit of the military. Jose Iigo, on the other hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer for several Iranians whom plaintiff assisted as head of the anti-Khomeini movement in the Philippines. "During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iigo, the defendant expressed his interest in buying caviar. As a matter of fact, he bought two kilos of caviar from plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets, pistachio nuts and other Iranian products was his business after the Khomeini government cut his pension of over $3,000.00 per month. During their introduction in that meeting, the defendant gave the plaintiff his calling card, which showed that he is working at the US Embassy in the Philippines, as a special agent of the Drug Enforcement Administration, Department of Justice, of the United States, and gave his address as US Embassy, Manila. At the back of the card appears a telephone number in defendants own handwriting, the number of which he can also be contacted. "It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife and the wife of a countryman named Abbas Torabian. The defendant told him that he [could] help plaintiff for a fee of $2,000.00 per visa. Their

conversation, however, was more concentrated on politics, carpets and caviar. Thereafter, the defendant promised to see plaintiff again. "On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize but for the reason that the defendant was not yet there, he requested the restaurant people to x x x place the same in the refrigerator. Defendant, however, came and plaintiff gave him the caviar for which he was paid. Then their conversation was again focused on politics and business. "On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo, Pasig. The defendant wanted to buy a pair of carpets which plaintiff valued at $27,900.00. After some haggling, they agreed at $24,000.00. For the reason that defendant did not yet have the money, they agreed that defendant would come back the next day. The following day, at 1:00 p.m., he came back with his $24,000.00, which he gave to the plaintiff, and the latter, in turn, gave him the pair of carpets.1awphi1.nt "At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house and directly proceeded to the latter's bedroom, where the latter and his countryman, Abbas Torabian, were playing chess. Plaintiff opened his safe in the bedroom and obtained $2,000.00 from it, gave it to the defendant for the latter's fee in obtaining a visa for plaintiff's wife. The defendant told him that he would be leaving the Philippines very soon and requested him to come out of the house for a while so that he can introduce him to his cousin waiting in a cab. Without much ado, and without putting on his shirt as he was only in his pajama pants, he followed the defendant where he saw a parked cab opposite the street. To his complete surprise, an American jumped out of the cab with a drawn high-powered gun. He was in the company of about 30 to 40 Filipino soldiers with 6 Americans, all armed. He was handcuffed and after about 20 minutes in the street, he was brought inside the house by the defendant. He was made to sit down while in handcuffs while the defendant was inside his bedroom. The defendant came out of the bedroom and out from defendant's attach case, he took something and placed it on the table in front of the plaintiff. They also took plaintiff's wife who was at that time at the boutique near his house and likewise arrested Torabian, who was playing chess with him in the bedroom and both were handcuffed together. Plaintiff was not told why he was being handcuffed and why the privacy of his house, especially his bedroom was invaded by defendant. He was not allowed to use the telephone. In fact, his telephone was unplugged. He asked for any warrant, but the defendant told him to `shut up. He was nevertheless told that he would be able to call for his lawyer who can defend him. "The plaintiff took note of the fact that when the defendant invited him to come out to meet his cousin, his safe was opened where he kept the $24,000.00 the defendant paid for the carpets and another $8,000.00 which he also placed in the safe together with a bracelet worth $15,000.00 and a pair of earrings worth $10,000.00. He also discovered missing upon his release his 8 pieces hand-made Persian carpets, valued at $65,000.00, a painting he bought for P30,000.00 together with his TV and betamax sets. He claimed that when he was handcuffed, the defendant took his keys from his wallet. There was, therefore, nothing left in his house. "That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various newspapers, particularly in Australia, America, Central Asia and in the Philippines. He was identified in the papers as an international drug trafficker. x x x In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines, but also in America and in Germany. His friends in said places informed him that they saw him on TV with said news. "After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed together, where they were detained for three days without food and water."1 During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and moved for extension of time to file an answer pending a supposed advice from the United States Department of State and Department of Justice on the defenses to be raised. The trial court granted the motion. On 27 October 1988, Scalzo filed another special appearance to quash the summons on the ground that he, not being a resident of the Philippines and the action being one in personam, was beyond the processes of the court. The motion was denied by the court, in its order of 13 December 1988, holding that the filing by Scalzo of a motion for extension of time to file an answer to the complaint was a voluntary appearance equivalent to service of summons which could likewise be construed a waiver of the requirement of formal notice. Scalzo filed a motion for reconsideration of the court order, contending that a motion for an extension of time to file an answer was not a voluntary appearance equivalent to service of summons since it did not seek an affirmative relief. Scalzo argued that in cases involving the United States government, as well as its agencies and officials, a motion for extension was peculiarly unavoidable due to the need (1) for both the Department of State and the Department of Justice to agree on the defenses to be raised and (2) to refer the case to a Philippine lawyer who would be expected to first review the case. The court a quo denied the motion for reconsideration in its order of 15 October 1989. Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023, assailing the denial. In a decision, dated 06 October 1989, the appellate court denied the petition and affirmed the ruling of the trial court. Scalzo then elevated the incident in a petition for review on certiorari, docketed G.R. No. 91173, to this Court. The petition, however, was denied for its failure to comply with SC Circular No. 1-88; in any event, the Court added, Scalzo had failed to show that the appellate court was in error in its questioned judgment.

Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in default for his failure to file a responsive pleading (answer) and (b) setting the case for the reception of evidence. On 12 March 1990, Scalzo filed a motion to set aside the order of default and to admit his answer to the complaint. Granting the motion, the trial court set the case for pre-trial. In his answer, Scalzo denied the material allegations of the complaint and raised the affirmative defenses (a) of Minuchers failure to state a cause of action in his complaint and (b) that Scalzo had acted in the discharge of his official duties as being merely an agent of the Drug Enforcement Administration of the United States Department of Justice. Scalzo interposed a counterclaim of P100,000.00 to answer for attorneys' fees and expenses of litigation. Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a motion to dismiss the complaint on the ground that, being a special agent of the United States Drug Enforcement Administration, he was entitled to diplomatic immunity. He attached to his motion Diplomatic Note No. 414 of the United States Embassy, dated 29 May 1990, addressed to the Department of Foreign Affairs of the Philippines and a Certification, dated 11 June 1990, of Vice Consul Donna Woodward, certifying that the note is a true and faithful copy of its original. In an order of 25 June 1990, the trial court denied the motion to dismiss. On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R. No. 94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the complaint in Civil Case No. 88-45691 be ordered dismissed. The case was referred to the Court of Appeals, there docketed CA-G.R. SP No. 22505, per this Courts resolution of 07 August 1990. On 31 October 1990, the Court of Appeals promulgated its decision sustaining the diplomatic immunity of Scalzo and ordering the dismissal of the complaint against him. Minucher filed a petition for review with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the Honorable Court of Appeals, et. al." (cited in 214 SCRA 242), appealing the judgment of the Court of Appeals. In a decision, dated 24 September 1992, penned by Justice (now Chief Justice) Hilario Davide, Jr., this Court reversed the decision of the appellate court and remanded the case to the lower court for trial. The remand was ordered on the theses (a) that the Court of Appeals erred in granting the motion to dismiss of Scalzo for lack of jurisdiction over his person without even considering the issue of the authenticity of Diplomatic Note No. 414 and (b) that the complaint contained sufficient allegations to the effect that Scalzo committed the imputed acts in his personal capacity and outside the scope of his official duties and, absent any evidence to the contrary, the issue on Scalzos diplomatic immunity could not be taken up. The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court reached a decision; it adjudged: "WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the plaintiff, who successfully established his claim by sufficient evidence, against the defendant in the manner following: "`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral damages in the sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's fees in the sum of P200,000.00 plus costs. `The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this judgment to answer for the unpaid docket fees considering that the plaintiff in this case instituted this action as a pauper litigant."2 While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he was a diplomatic agent entitled to immunity as such, it ruled that he, nevertheless, should be held accountable for the acts complained of committed outside his official duties. On appeal, the Court of Appeals reversed the decision of the trial court and sustained the defense of Scalzo that he was sufficiently clothed with diplomatic immunity during his term of duty and thereby immune from the criminal and civil jurisdiction of the "Receiving State" pursuant to the terms of the Vienna Convention. Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) whether or not the doctrine of conclusiveness of judgment, following the decision rendered by this Court in G.R. No. 97765, should have precluded the Court of Appeals from resolving the appeal to it in an entirely different manner, and (2) whether or not Arthur Scalzo is indeed entitled to diplomatic immunity. The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the finality of the prior judgment, 2) a valid jurisdiction over the subject matter and the parties on the part of the court that renders it, 3) a judgment on the merits, and 4) an identity of the parties, subject matter and causes of action. 3 Even while one of the issues submitted in G.R. No. 97765 - "whether or not public respondent Court of Appeals erred in ruling that private respondent Scalzo is a diplomat immune from civil suit conformably with the Vienna Convention on Diplomatic Relations" - is also a pivotal question raised in the instant petition, the ruling in G.R. No. 97765, however, has not resolved that point with finality. Indeed, the Court there has made this observation "It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13 June 1990, unequivocally states that he would present documentary evidence consisting of DEA records on his investigation and surveillance of plaintiff and on his position and duties as DEA special agent in Manila. Having thus reserved his right to present evidence in support of his position, which is the basis for the alleged diplomatic immunity, the barren self-serving claim in the belated motion to dismiss cannot be relied upon for a reasonable, intelligent and fair resolution of the issue of diplomatic immunity."4

Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a signatory, grants him absolute immunity from suit, describing his functions as an agent of the United States Drugs Enforcement Agency as "conducting surveillance operations on suspected drug dealers in the Philippines believed to be the source of prohibited drugs being shipped to the U.S., (and) having ascertained the target, (he then) would inform the Philippine narcotic agents (to) make the actual arrest." Scalzo has submitted to the trial court a number of documents 1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990; 2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990; 3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991; 4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and 5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988. 6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of Foreign Affairs, dated 27 June 1990 forwarding Embassy Note No. 414 to the Clerk of Court of RTC Manila, Branch 19 (the trial court); 7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and 8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of Foreign Affairs, through Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice of this Court.5 The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly advised the Executive Department of the Philippine Government that Scalzo was a member of the diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on 14 October 1985 until his departure on 10 August 1988; (2) that the United States Government was firm from the very beginning in asserting the diplomatic immunity of Scalzo with respect to the case pursuant to the provisions of the Vienna Convention on Diplomatic Relations; and (3) that the United States Embassy repeatedly urged the Department of Foreign Affairs to take appropriate action to inform the trial court of Scalzos diplomatic immunity. The other documentary exhibits were presented to indicate that: (1) the Philippine government itself, through its Executive Department, recognizing and respecting the diplomatic status of Scalzo, formally advised the "Judicial Department" of his diplomatic status and his entitlement to all diplomatic privileges and immunities under the Vienna Convention; and (2) the Department of Foreign Affairs itself authenticated Diplomatic Note No. 414. Scalzo additionally presented Exhibits "9" to "13" consisting of his reports of investigation on the surveillance and subsequent arrest of Minucher, the certification of the Drug Enforcement Administration of the United States Department of Justice that Scalzo was a special agent assigned to the Philippines at all times relevant to the complaint, and the special power of attorney executed by him in favor of his previous counsel 6 to show (a) that the United States Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a member of the diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on 14 October 1985 until his departure on 10 August 1988, (b) that, on May 1986, with the cooperation of the Philippine law enforcement officials and in the exercise of his functions as member of the mission, he investigated Minucher for alleged trafficking in a prohibited drug, and (c) that the Philippine Department of Foreign Affairs itself recognized that Scalzo during his tour of duty in the Philippines (14 October 1985 up to 10 August 1988) was listed as being an Assistant Attach of the United States diplomatic mission and accredited with diplomatic status by the Government of the Philippines. In his Exhibit 12, Scalzo described the functions of the overseas office of the United States Drugs Enforcement Agency, i.e., (1) to provide criminal investigative expertise and assistance to foreign law enforcement agencies on narcotic and drug control programs upon the request of the host country, 2) to establish and maintain liaison with the host country and counterpart foreign law enforcement officials, and 3) to conduct complex criminal investigations involving international criminal conspiracies which affect the interests of the United States. The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law and, by the time of its ratification on 18 April 1961, its rules of law had long become stable. Among the city states of ancient Greece, among the peoples of the Mediterranean before the establishment of the Roman Empire, and among the states of India, the person of the herald in time of war and the person of the diplomatic envoy in time of peace were universally held sacrosanct. 7 By the end of the 16th century, when the earliest treatises on diplomatic law were published, the inviolability of ambassadors was firmly established as a rule of customary international law. 8 Traditionally, the exercise of diplomatic intercourse among states was undertaken by the head of state himself, as being the preeminent embodiment of the state he represented, and the foreign secretary, the official usually entrusted with the external affairs of the state. Where a state would wish to have a more prominent diplomatic presence in the receiving state, it would then send to the latter a diplomatic mission. Conformably with the Vienna Convention, the functions of the diplomatic mission involve, by and large, the representation of the interests of the sending state and promoting friendly relations with the receiving state.9 The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or nuncios accredited to the heads of state,10 (b) envoys,11 ministers or internuncios accredited to the heads of states; and (c) charges d' affairs 12accredited to the ministers of foreign affairs.13 Comprising the "staff of the (diplomatic) mission" are the diplomatic staff, the administrative staff and the technical and service staff. Only the heads of missions, as well as members of the diplomatic staff, excluding the

members of the administrative, technical and service staff of the mission, are accorded diplomatic rank. Even while the Vienna Convention on Diplomatic Relations provides for immunity to the members of diplomatic missions, it does so, nevertheless, with an understanding that the same be restrictively applied. Only "diplomatic agents," under the terms of the Convention, are vested with blanket diplomatic immunity from civil and criminal suits. The Convention defines "diplomatic agents" as the heads of missions or members of the diplomatic staff, thus impliedly withholding the same privileges from all others. It might bear stressing that even consuls, who represent their respective states in concerns of commerce and navigation and perform certain administrative and notarial duties, such as the issuance of passports and visas, authentication of documents, and administration of oaths, do not ordinarily enjoy the traditional diplomatic immunities and privileges accorded diplomats, mainly for the reason that they are not charged with the duty of representing their states in political matters. Indeed, the main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the determination of whether or not he performs duties of diplomatic nature. Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attach of the United States diplomatic mission and was accredited as such by the Philippine Government. An attach belongs to a category of officers in the diplomatic establishment who may be in charge of its cultural, press, administrative or financial affairs. There could also be a class of attaches belonging to certain ministries or departments of the government, other than the foreign ministry or department, who are detailed by their respective ministries or departments with the embassies such as the military, naval, air, commercial, agricultural, labor, science, and customs attaches, or the like. Attaches assist a chief of mission in his duties and are administratively under him, but their main function is to observe, analyze and interpret trends and developments in their respective fields in the host country and submit reports to their own ministries or departments in the home government.14 These officials are not generally regarded as members of the diplomatic mission, nor are they normally designated as having diplomatic rank. In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and 791, all issued post litem motam, respectively, on 29 May 1990, 25 October 1991 and 17 November 1992. The presentation did nothing much to alleviate the Court's initial reservations in G.R. No. 97765, viz: "While the trial court denied the motion to dismiss, the public respondent gravely abused its discretion in dismissing Civil Case No. 88-45691 on the basis of an erroneous assumption that simply because of the diplomatic note, the private respondent is clothed with diplomatic immunity, thereby divesting the trial court of jurisdiction over his person. "x x x x x x x x x "And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting aside for the moment the issue of authenticity raised by the petitioner and the doubts that surround such claim, in view of the fact that it took private respondent one (1) year, eight (8) months and seventeen (17) days from the time his counsel filed on 12 September 1988 a Special Appearance and Motion asking for a first extension of time to file the Answer because the Departments of State and Justice of the United States of America were studying the case for the purpose of determining his defenses, before he could secure the Diplomatic Note from the US Embassy in Manila, and even granting for the sake of argument that such note is authentic, the complaint for damages filed by petitioner cannot be peremptorily dismissed. "x x x x x x x x x "There is of course the claim of private respondent that the acts imputed to him were done in his official capacity. Nothing supports this self-serving claim other than the so-called Diplomatic Note. x x x. The public respondent then should have sustained the trial court's denial of the motion to dismiss. Verily, it should have been the most proper and appropriate recourse. It should not have been overwhelmed by the self-serving Diplomatic Note whose belated issuance is even suspect and whose authenticity has not yet been proved. The undue haste with which respondent Court yielded to the private respondent's claim is arbitrary." A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the Office of Protocol of the Department of Foreign Affairs and signed by Emmanuel C. Fernandez, Assistant Secretary, certifying that "the records of the Department (would) show that Mr. Arthur W. Scalzo, Jr., during his term of office in the Philippines (from 14 October 1985 up to 10 August 1988) was listed as an Assistant Attach of the United States diplomatic mission and was, therefore, accredited diplomatic status by the Government of the Philippines." No certified true copy of such "records," the supposed bases for the belated issuance, was presented in evidence. Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of the government. In World Health Organization vs. Aquino,15 the Court has recognized that, in such matters, the hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and incautious grant of immunity, designed to gain exemption from the jurisdiction of courts, it should behoove the Philippine government, specifically its Department of Foreign Affairs, to be most circumspect, that should particularly be no less than compelling, in its post litem motam issuances. It might be recalled that the privilege is not an immunity from the observance of the law of the territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction. 16 The government of the United States itself, which Scalzo claims to be acting for, has formulated its standards for recognition of a diplomatic agent. The State Department policy is to only concede diplomatic status to a person who possesses an acknowledged diplomatic title and "performs duties of diplomatic

nature."17 Supplementary criteria for accreditation are the possession of a valid diplomatic passport or, from States which do not issue such passports, a diplomatic note formally representing the intention to assign the person to diplomatic duties, the holding of a non-immigrant visa, being over twenty-one years of age, and performing diplomatic functions on an essentially full-time basis.18 Diplomatic missions are requested to provide the most accurate and descriptive job title to that which currently applies to the duties performed. The Office of the Protocol would then assign each individual to the appropriate functional category.19 But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently established that, indeed, he worked for the United States Drug Enforcement Agency and was tasked to conduct surveillance of suspected drug activities within the country on the dates pertinent to this case. If it should be ascertained that Arthur Scalzo was acting well within his assigned functions when he committed the acts alleged in the complaint, the present controversy could then be resolved under the related doctrine of State Immunity from Suit. The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary international law then closely identified with the personal immunity of a foreign sovereign from suit 20 and, with the emergence of democratic states, made to attach not just to the person of the head of state, or his representative, but also distinctly to the state itself in its sovereign capacity.21 If the acts giving rise to a suit are those of a foreign government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Suing a representative of a state is believed to be, in effect, suing the state itself. The proscription is not accorded for the benefit of an individual but for the State, in whose service he is, under the maxim - par in parem, non habet imperium - that all states are sovereign equals and cannot assert jurisdiction over one another. 22 The implication, in broad terms, is that if the judgment against an official would require the state itself to perform an affirmative act to satisfy the award, such as the appropriation of the amount needed to pay the damages decreed against him, the suit must be regarded as being against the state itself, although it has not been formally impleaded.23 In United States of America vs. Guinto, 24 involving officers of the United States Air Force and special officers of the Air Force Office of Special Investigators charged with the duty of preventing the distribution, possession and use of prohibited drugs, this Court has ruled "While the doctrine (of state immunity) appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. x x x. It cannot for a moment be imagined that they were acting in their private or unofficial capacity when they apprehended and later testified against the complainant. It follows that for discharging their duties as agents of the United States, they cannot be directly impleaded for acts imputable to their principal, which has not given its consent to be sued. x x x As they have acted on behalf of the government, and within the scope of their authority, it is that government, and not the petitioners personally, [who were] responsible for their acts."25 This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals26 elaborates: "It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the rights of the plaintiff. As was clearly set forth by Justice Zaldivar in Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368): `Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are not acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has been said that an action at law or suit in equity against a State officer or the director of a State department on the ground that, while claiming to act for the State, he violates or invades the personal and property rights of the plaintiff, under an unconstitutional act or under an assumption of authority which he does not have, is not a suit against the State within the constitutional provision that the State may not be sued without its consent. The rationale for this ruling is that the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice. "x x x x x x x x x "(T)he doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith or beyond the scope of his authority and jurisdiction."27 A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be established that he is acting within the directives of the sending state. The consent of the host state is an indispensable requirement of basic courtesy between the two sovereigns. Guinto and Shauf both involve officers and personnel of the United States, stationed within Philippine territory, under the RP-US Military Bases Agreement. While evidence is wanting to show any similar agreement between the governments of the Philippines and of the United States (for the latter to send its agents and to conduct surveillance and related activities of suspected drug dealers in the Philippines), the consent orimprimatur of the Philippine government to the activities of the United States Drug Enforcement Agency, however, can be gleaned from the facts

heretofore elsewhere mentioned. The official exchanges of communication between agencies of the government of the two countries, certifications from officials of both the Philippine Department of Foreign Affairs and the United States Embassy, as well as the participation of members of the Philippine Narcotics Command in the "buy-bust operation" conducted at the residence of Minucher at the behest of Scalzo, may be inadequate to support the "diplomatic status" of the latter but they give enough indication that the Philippine government has given its imprimatur, if not consent, to the activities within Philippine territory of agent Scalzo of the United States Drug Enforcement Agency. The job description of Scalzo has tasked him to conduct surveillance on suspected drug suppliers and, after having ascertained the target, to inform local law enforcers who would then be expected to make the arrest. In conducting surveillance activities on Minucher, later acting as the poseur-buyer during the buy-bust operation, and then becoming a principal witness in the criminal case against Minucher, Scalzo hardly can be said to have acted beyond the scope of his official function or duties. All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States Drug Enforcement Agency allowed by the Philippine government to conduct activities in the country to help contain the problem on the drug traffic, is entitled to the defense of state immunity from suit. WHEREFORE, on the foregoing premises, the petition is DENIED. No costs. SO ORDERED. G.R. No. 125865 March 26, 2001 LIANG (HUEFENG), petitioner,

JEFFREY vs. PEOPLE OF THE PHILIPPINES, respondent. RESOLUTION YNARES-SANTIAGO, J.:

This resolves petitioner's Motion for Reconsideration of our Decision dated January 28, 2000, denying the petition for review. The Motion is anchored on the following arguments: 1) THE DFA'S DETERMINATION OF IMMUNITY IS A POLITICAL QUESTION TO BE MADE BY THE EXECUTIVE BRANCH OF THE GOVERNMENT AND IS CONCLUSIVE UPON THE COURTS. 2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS ABSOLUTE. 3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN DEVELOPMENT BANK (ADB). 4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO REBUT THE DFA PROTOCOL. 5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A FINDING OF FACT ON THE MERITS, NAMELY, THE SLANDERING OF A PERSON WHICH PREJUDGED PETITIONER'S CASE BEFORE THE METROPOLITAN TRIAL COURT (MTC)-MANDALUYONG. 6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT APPLICABLE TO THIS CASE. This case has its origin in two criminal Informations 1 for grave oral defamation filed against petitioner, a Chinese national who was employed as an Economist by the Asian Development Bank (ADB), alleging that on separate occasions on January 28 and January 31, 1994, petitioner allegedly uttered defamatory words to Joyce V. Cabal, a member of the clerical staff of ADB. On April 13, 1994, the Metropolitan Trial Court of Mandaluyong City, acting pursuant to an advice from the Department of Foreign Affairs that petitioner enjoyed immunity from legal processes, dismissed the criminal Informations against him. On a petition for certiorari and mandamus filed by the People, the Regional Trial Court of Pasig City, Branch 160, annulled and set aside the order of the Metropolitan Trial Court dismissing the criminal cases.2 Petitioner, thus, brought a petition for review with this Court. On January 28, 2000, we rendered the assailed Decision denying the petition for review. We ruled, in essence, that the immunity granted to officers and staff of the ADB is not absolute; it is limited to acts performed in an official capacity. Furthermore, we held that the immunity cannot cover the commission of a crime such as slander or oral defamation in the name of official duty. On October 18, 2000, the oral arguments of the parties were heard. This Court also granted the Motion for Intervention of the Department of Foreign Affairs. Thereafter, the parties were directed to submit their respective memorandum.

For the most part, petitioner's Motion for Reconsideration deals with the diplomatic immunity of the ADB, its officials and staff, from legal and judicial processes in the Philippines, as well as the constitutional and political bases thereof. It should be made clear that nowhere in the assailed Decision is diplomatic immunity denied, even remotely. The issue in this case, rather, boils down to whether or not the statements allegedly made by petitioner were uttered while in the performance of his official functions, in order for this case to fall squarely under the provisions of Section 45 (a) of the "Agreement Between the Asian Development Bank and the Government of the Republic of the Philippines Regarding the Headquarters of the Asian Development Bank," to wit: Officers and staff of the Bank, including for the purpose of this Article experts and consultants performing missions for the Bank, shall enjoy the following privileges and immunities: (a) Immunity from legal process with respect to acts performed by them in their official capacity except when the Bank waives the immunity. After a careful deliberation of the arguments raised in petitioner's and intervenor's Motions for Reconsideration, we find no cogent reason to disturb our Decision of January 28, 2000. As we have stated therein, the slander of a person, by any stretch, cannot be considered as falling within the purview of the immunity granted to ADB officers and personnel. Petitioner argues that the Decision had the effect of prejudging the criminal case for oral defamation against him. We wish to stress that it did not. What we merely stated therein is that slander, in general, cannot be considered as an act performed in an official capacity. The issue of whether or not petitioner's utterances constituted oral defamation is still for the trial court to determine. WHEREFORE, in view of the foregoing, the Motions for Reconsideration filed by petitioner and intervenor Department of Foreign Affairs are DENIED with FINALITY. SO ORDERED. Retroactivity .R. No. 149453 October 7, 2003

PEOPLE OF THE PHILIPPINES, THE SECRETARY OF JUSTICE, DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, CHIEF STATE PROSECUTOR JOVENCITO ZUO, STATE PROSECUTORS PETER L. ONG and RUBEN A. ZACARIAS; 2ND ASSISTANT CITY PROSECUTOR CONRADO M. JAMOLIN and CITY PROSECUTOR OF QUEZON CITY CLARO ARELLANO, petitioners, vs. PANFILO M. LACSON, respondent. RESOLUTION CALLEJO, SR., J.: Before the Court are the following motions of the respondent, to wit: (a) Omnibus Motion; 1 (b) Motion for Reconsideration;2(c) Supplement to Motion for Reconsideration;3 (d) Motion To Set for Oral Arguments.4 The Omnibus Motion The respondent seeks the reconsideration of the April 29, 2003 Resolution of this Court which granted the petitioners motion for reconsideration. The respondent thereafter prays to allow Associate Justices Renato C. Corona, Ma. Alicia AustriaMartinez, Conchita C. Morales, Romeo J. Callejo, Sr., and Adolfo S. Azcuna to voluntary inhibit themselves or, absent their consent, rule that such inhibition is in order and to recuse them from further deliberating, discussing or, in any manner, participating in the resolution of the Motion for Reconsideration and the Supplement to Motion for Reconsideration. The respondent points out that the aforenamed members of the Court were appointed by President Gloria Macapagal-Arroyo after the February 19, 2002 oral arguments and after the case at bar was submitted for the decision of the Court. He asserts that although A.M. No. 99-8-09-SC5 specifically provides that it applies only to the divisions of the Court, it should likewise apply to this case, in light of the April 1, 2003 Resolution of this Court which set aside its Resolution dated May 28, 2002, apart from the constitutional issues raised by the respondent in his motion for reconsideration and its supplement. As such, according to the respondent, the instant case should be unloaded by Justice Callejo, Sr. and re-raffled to any other member of the Court. The Court resolves to deny the respondents motion for lack of merit. The records show that as early as May 24, 2002, the respondent filed an urgent motion for the recusation of Justices Renato C. Corona and Ma. Alicia Austria-Martinez for the reason that they were appointed to the Court after the February 19, 2002 oral arguments and did not participate in the integral portions of the proceedings. Justices Corona and Austria-Martinez refused to inhibit themselves and decided to participate in the deliberation on the petition. 6 On March 18, 2003, the respondent

filed a motion with the Court for the recusation of Justice Romeo J. Callejo, Sr. on account of his voluntary inhibition when the case was pending before the Court of Appeals. On March 25, 2003, this Court issued a resolution denying the respondents Motion dated March 18, 2003. The respondent thereafter filed his motion for reconsideration of the April 1, 2003 Resolution of the Court in which he prayed, inter alia, for the inhibition of Justice Callejo, Sr. under A.M. No. 99-8-09-SC and that the case be re-raffled to another member of the Court who had actually participated in the deliberation and the rendition of its May 28, 2002 Resolution. The respondent likewise sought the inhibition of Justices Conchita C. Morales and Adolfo S. Azcuna, again for the reason that they were appointed to the Court after the oral arguments on February 19, 2002 and after the case had already been submitted for decision. On April 29, 2003, this Court issued a resolution denying the aforesaid motions of the respondent. 7 The Court ruled that A.M. No. 99-8-09-SC is applicable only to cases assigned to the divisions of the Court: The respondents reliance on Supreme Court Circular No. 99-8-09 is misplaced. As admitted by the respondent, the said circular is applicable only to motions for reconsideration in cases assigned to the Divisions of the Court. For cases assigned to the Court En Banc, the policy of the Court had always been and still is, if the ponente is no longer with the Court, his replacement will act upon the motion for reconsideration of a party and participate in the deliberations thereof. This is the reason why Justice Callejo, Sr. who had replaced retired Justice De Leon, prepared the draft of the April 1, 2003 Resolution of the Court.8 The Court also ruled that there was no need for its newest members to inhibit themselves from participating in the deliberation of the respondents Motion for Reconsideration: Although Justices Conchita Carpio-Morales, Romeo J. Callejo, Sr., and Adolfo S. Azcuna were not yet members of the Court during the February 18, 20029 oral arguments before the Court, nonetheless they were not disqualified to participate in the deliberations on the petitioners motion for reconsideration of the May 28, 2002 Resolution of the Court or of the instant motion for reconsideration. Neither is Justice Callejo, Sr. disqualified to prepare the resolution of the Court on the motion for reconsideration of the respondent. When the Court deliberated on petitioners motion for reconsideration, Justices Conchita Carpio-Morales, Romeo J. Callejo, Sr. and Adolfo S. Azcuna were already members of the Court. It bears stressing that transcripts of stenographic notes taken during the February 18, 2002 hearing and oral arguments of the parties are parts of the records of this case. Said transcripts are available to the parties or to any member of the Court. Likewise, Attys. Rene A.V. Saguisag and Felix Carao, Jr. may not yet have been the counsel of the respondent on February 18, 2002 but by reading the said transcripts and the records of this case they are informed of what transpired during the hearing and oral arguments of the parties.10 It is thus clear that the grounds cited by the respondent in his omnibus motion had already been passed upon and resolved by this Court. The respondent did not make any new substantial arguments in his motion to warrant a reconsideration of the aforesaid resolutions. Besides, the respondent sought the inhibition of Justices Conchita C. Morales and Adolfo S. Azcuna only after they had already concurred in the Courts Resolution dated April 1, 2003. Case law has it that a motion for disqualification must be denied when filed after a member of the Court has already given an opinion on the merits of the case, the rationale being that a litigant cannot be permitted to speculate upon the action of the Court, only to raise an objection of this sort after a decision has been rendered.11 The Motion to Set the Case for Oral Arguments The Court denies the motion of the respondent. The parties have already extensively discussed the issues involved in the case. The respondents motion for reconsideration consists of no less than a hundred pages, excluding the supplement to his motion for reconsideration and his reply to the petitioners comment on his motion. There is no longer a need to set the instant case for oral arguments. The Issue as to the Application of the Time-bar under Section 8, Rule 117 of the Revised Rules of Criminal Procedure Whether Prospective or Retroactive The respondent seeks the reconsideration of the April 1, 2003 Resolution of the Court and thereafter reinstate its Resolution of May 28, 2002. He asserts that pursuant to a long line of jurisprudence and a long-standing judicial practice in applying penal law, Section 8, Rule 117 of the Revised Rules of Criminal Procedure (RRCP) should be applied prospectively and retroactively without reservations, only and solely on the basis of its being favorable to the accused. He asserts that case law on the retroactive application of penal laws should likewise apply to criminal procedure, it being a branch of criminal law. The respondent insists that Section 8 was purposely crafted and included as a new provision to reinforce the constitutional right of the accused to a

speedy disposition of his case. It is primarily a check on the State to prosecute criminal cases diligently and continuously, lest it loses its right to prosecute the accused anew. The respondent argues that since Section 8 is indubitably a rule of procedure, there can be no other conclusion: the rule should have retroactive application, absent any provision therein that it should be applied prospectively. Accordingly, prospective application thereof would in effect give the petitioners more than two years from March 29, 1999 within which to revive the criminal cases, thus violating the respondents right to due process and equal protection of the law. The respondent asserts that Section 8 was meant to reach back in time to provide relief to the accused. In this case, the State had been given more than sufficient opportunity to prosecute the respondent anew after the March 29, 1999 dismissal of the cases by then Judge Wenceslao Agnir, Jr. and even before the RRCP took effect on December 1, 2000. According to the respondent, the petitioners filed the Informations with the RTC in Criminal Cases Nos. 01-101102 to 01-101112 beyond the two-year bar, in violation of his right to a speedy trial, and that such filing was designed to derail his bid for the Senate. In their comment on the respondents motions, the petitioners assert that the prospective application of Section 8 is in keeping with Section 5(5), Article VIII of the 1987 Constitution, which provides in part that the rules of procedure which the Court may promulgate shall not diminish, increase or modify substantial rights. While Section 8 secures the rights of the accused, it does not and should not preclude the equally important right of the State to public justice. If such right to public justice is taken away, then Section 8 can no longer be said to be a procedural rule. According to the petitioners, if a procedural rule impairs a vested right, or would work injustice, the said rule may not be given a retroactive application. They contend that the right of the accused to a speedy trial or disposition of the criminal cases applies only to outstanding and pending cases and not to cases already dismissed. The petitioners assert that the "refiling of the cases" under Section 8 should be taken to mean as the filing of the criminal complaint with the appropriate office for the purpose of conducting a preliminary investigation, and not the actual filing of the criminal complaint or information in court for trial. Furthermore, according to the petitioners, the offended parties must be given notices of the motion for provisional dismissal of the cases under Section 8 since the provision so expressly states. Thus, if the requisite notices to the heirs of the deceased would be taken into consideration, the two-year period had not yet even commenced to run. In his consolidated reply to the comment of the petitioners, the respondent asserts that the State is proscribed from refiling a criminal case if it can be shown that the delay resulted in a violation of the right of the accused to due process. In this case, there was an inordinate delay in the revival of the cases, considering that the witnesses in the criminal cases for the State in March 1999 are the same witnesses in 2001. The State had reasonable opportunity to refile the cases before the two-year bar but failed to do so because of negligence; and perhaps institutional indolence. Contrary to the petitioners contention, the respondent posits that the revival of the cases contemplated in Section 8 refers to the filing of the Informations or complaints in court for trial. The operational act then is the refiling of the Informations with the RTC, which was done only on June 6, 2001, clearly beyond the two-year bar. The Court finds the respondents contentions to be without merit. First. The Court approved the RRCP pursuant to its power under Article VIII, Section 5, paragraph 5 of the Constitution which reads: (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. The Court is not mandated to apply Section 8 retroactively simply because it is favorable to the accused. It must be noted that the new rule was approved by the Court not only to reinforce the constitutional right of the accused to a speedy disposition of the case. The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the administration of the criminal justice system for the benefit of the State and the accused; not for the accused only. The Court emphasized in its assailed resolution that: In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two years for the revival of criminal cases provisionally dismissed with the express consent of the accused and with a priori notice to the offended party. The time-bar may appear, on first impression, unreasonable compared to the periods under Article 90 of the Revised Penal Code. However, in fixing the time-bar, the Court balanced the societal interests and those of the accused for the orderly and speedy disposition of criminal cases with minimum prejudice to the State and the accused. It took into account the substantial rights of both the State and of the accused to due process. The Court believed that the time limit is a reasonable period for the State to revive provisionally dismissed cases with the consent of the accused and notice to the offended parties. The time-bar fixed by the Court must be respected unless it is shown that the period is manifestly short or insufficient that the rule becomes a denial of justice.12 In criminal litigations concerning constitutional issue claims, the Court, in the interest of justice, may make the rule prospective where the exigencies of the situation make the rule prospective. The retroactivity or non-retroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal

procedure has its own distinct functions, its own background or precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved.13 Matters of procedure are not necessarily retrospective in operation as a statute. 14 To paraphrase the United States Supreme Court per Justice Benjamin Cardozo, the Court in defining the limits of adherence may make a choice for itself between the principle of forward operation and that of relating forward.15 The Court approved Section 8 pursuant to its power under Article VIII, Section 5, paragraph 5 of the Constitution. This constitutional grant to promulgate rules carries with it the power, inter alia, to determine whether to give the said rules prospective or retroactive effect. Moreover, under Rule 144 of the Rules of Court, the Court may not apply the rules to actions pending before it if in its opinion their application would not be feasible or would work injustice, in which event, the former procedure shall apply.16 The absence of a provision in Section 8 giving it prospective application only does not proscribe the prospective application thereof; nor does it imply that the Court intended the new rule to be given retroactive and prospective effect. If the statutory purpose is clear, the provisions of the law should be construed as is conducive to fairness and justice, and in harmony with the general spirit and policy of the rule. It should be construed so as not to defeat but to carry out such end or purpose. 17 A statute derives its vitality from the purpose for which it is approved. To construe it in a manner that disregards or defeats such purpose is to nullify or destroy the law.18 In Cometa v. Court of Appeals,19 this Court ruled that "the spirit rather than the letter of the statute determines its construction; hence, a statute must be read according to its spirit or intent."20 While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to the "letter that killeth" but to the "spirit that vivifieth, to give effect to the lawmakers will."21 In this case, when the Court approved Section 8, it intended the new rule to be applied prospectively and not retroactively, for if the intention of the Court were otherwise, it would defeat the very purpose for which it was intended, namely, to give the State a period of two years from notice of the provisional dismissal of criminal cases with the express consent of the accused. It would be a denial of the States right to due process and a travesty of justice for the Court to apply the new rule retroactively in the present case as the respondent insists, considering that the criminal cases were provisionally dismissed by Judge Agnir, Jr. on March 29, 1999 before the new rule took effect on December 1, 2000. A retroactive application of the time-bar will result in absurd, unjust and oppressive consequences to the State and to the victims of crimes and their heirs. Consider this scenario: the trial court (RTC) provisionally dismissed a criminal case with the express consent of the accused in 1997. The prosecution had the right to revive the case within the prescriptive period, under Article 90 of the Revised Penal Code, as amended. On December 1, 2000, the time-bar rule under Section 8 took effect, the prosecution was unable to revive the criminal case before then. If the time-bar fixed in Section 8 were to be applied retroactively, this would mean that the State would be barred from reviving the case for failure to comply with the said time-bar, which was yet to be approved by the Court three years after the provisional dismissal of the criminal case. In contrast, if the same case was dismissed provisionally in December 2000, the State had the right to revive the same within the time-bar. In fine, to so hold would imply that the State was presumed to foresee and anticipate that three years after 1997, the Court would approve and amend the RRCP. The State would thus be sanctioned for its failure to comply with a rule yet to be approved by the Court. It must be stressed that the institution and prosecution of criminal cases are governed by existing rules and not by rules yet to exist. It would be the apex of injustice to hold that Section 8 had a platonic or ideal existence before it was approved by the Court. The past cannot be erased by a capricious retroactive application of the new rule. In holding that the petitioners had until December 1, 2002 within which to revive the criminal cases provisionally dismissed by Judge Agnir, Jr. on March 29, 1999, this Court explained, thus: The Court agrees with the petitioners that to apply the time-bar retroactively so that the two-year period commenced to run on March 31, 1999 when the public prosecutor received his copy of the resolution of Judge Agnir, Jr. dismissing the criminal cases is inconsistent with the intendment of the new rule. Instead of giving the State two years to revive provisionally dismissed cases, the State had considerably less than two years to do so. Thus, Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-99-81679 to Q-99-81689 on March 29, 1999. The new rule took effect on December 1, 2000. If the Court applied the new time-bar retroactively, the State would have only one year and three months or until March 31, 2001 within which to revive these criminal cases. The period is short of the two-year period fixed under the new rule. On the other hand, if the time limit is applied prospectively, the State would have two years from December 1, 2000 or until December 1, 2002 within which to revive the cases. This is in consonance with the intendment of the new rule in fixing the time-bar and thus prevent injustice to the State and avoid absurd, unreasonable, oppressive, injurious, and wrongful results in the administration of justice. The period from April 1, 1999 to November 30, 199922 should be excluded in the computation of the two-year period because the rule prescribing it was not yet in effect at the time and the State could not be expected to comply with the time-bar. It cannot even be argued that the State waived its right to revive the criminal cases against respondent or that it was negligent for not reviving them within the two-year period under the new rule. 1a\^/phi1.net As the United States Supreme Court said, per Justice Felix Frankfurter, in Griffin v. People, 351 US 12 (1956):

We should not indulge in the fiction that the law now announced has always been the law and, therefore, that those who did not avail themselves of it waived their rights The two-year period fixed in the new rule is for the benefit of both the State and the accused. It should not be emasculated and reduced by an inordinate retroactive application of the time-bar therein provided merely to benefit the accused. For to do so would cause an "injustice of hardship" to the State and adversely affect the administration of justice in general and of criminal laws in particular.23 Further quoting Justice Felix Frankfurters opinion in Griffin v. People,24 he said, "it is much more conducive to laws selfrespect to recognize candidly the considerations that give prospective content to a new pronouncement of law. That this is consonant with the spirit of our law and justified by those considerations of reason which should dominate the law has been luminously expounded by Mr. Justice Cardozo shortly before he came here and in an opinion which he wrote for the Court." Parenthetically, the respondent himself admitted in his motion for reconsideration that Judge Agnir, Jr. could not have been expected to comply with the notice requirement under the new rule when it yet had to exist: 99. Respondent submits that the records are still in the same state of inadequacy and incompletion. This however is not strange considering that Section 8, Rule 117 had not existed on March 29, 1999, when the criminal cases were dismissed, and then Judge Agnir did not have its text to guide his actions. How could the good judge have complied with the mandate of Section 8, Rule 117 when it yet had to exist?25 Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. In that sense and to that extent, procedural laws are retroactive.26 Criminal Cases Nos. Q-99-81679 to Q-99-81689 had long been dismissed by Judge Agnir, Jr. before the new rule took effect on December 1, 2000. When the petitioners filed the Informations in Criminal Cases Nos. 01-101102 to 01-101112 on June 6, 2001, Criminal Cases Nos. Q-9981679 and Q-99-81689 had long since been terminated. The two-year bar in the new rule should not be reckoned from the March 29, 1999 dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 but from December 1, 2000 when the new rule took effect. While it is true that the Court applied Section 8 of Rule 110 27 of the RRCP retroactively, it did so only to cases still pending with this Court and not to cases already terminated with finality. The records show that after the requisite preliminary investigation conducted by the petitioners in accordance with existing rules, eleven Informations in Criminal Cases Nos. 01-101102 to 01-101112 were filed with the RTC on June 6, 2001, very well within the time-bar therefor. The respondent cannot argue that his right to due process and to a speedy disposition of the cases as enshrined in the Constitution had been violated.28 The respondents plaint that he was being singled out by the prospective application of the new rule simply because before the Court issued its April 1, 2003 Resolution, he announced his candidacy for the presidency of the Republic for the 2004 elections has no factual basis whatsoever. 29 The bare and irrefutable fact is that it was in this case where the issue of the retroactive/prospective application of the new rule was first raised before the Court. The ruling of the Court in its April 1, 2003 Resolution and its ruling today would be the same, regardless of who the party or parties involved are, whether a senator of the Republic or an ordinary citizen. The respondents contention that the prospective application of the new rule would deny him due process and would violate the equal protection of laws is barren of merit. It proceeds from an erroneous assumption that the new rule was approved by the Court solely for his benefit, in derogation of the right of the State to due process. The new rule was approved by the Court to enhance the right of due process of both the State and the accused. The State is entitled to due process in criminal cases as much as the accused. Due process has never been and perhaps can never be precisely defined. 1a\^/phi1.net It is not a technical conception with a fixed content unrelated to time, place and circumstances. The phrase expresses the requirement of fundamental fairness, a requisite whose meaning can be as opaque as its importance is lofty.30 In determining what fundamental fairness consists of in a particular situation, relevant precedents must be considered and the interests that are at stake; private interests, as well as the interests of the government must be assessed. In this case, in holding that the new rule has prospective and not retroactive application, the Court took into consideration not only the interests of the respondent but all other accused, whatever their station in life may be. The interest of the State in the speedy, impartial and inexpensive disposition of criminal cases was likewise considered. The Respondent Failed to Comply with the Essential Prerequisites of Section 8, Rule 117 of the Revised Rules of Criminal Procedure The respondent argues that the issue involved in the Court of Appeals is entirely different from the issue involved in the present recourse; hence, any admissions he made in the court below are not judicial admissions in this case. He asserts that the issue involved in the CA was whether or not he was placed in double jeopardy when he was charged with murder in Criminal Cases Nos. 01-101102 to 01-101112 despite the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689; whereas the issue in this Court is whether the prosecution of Criminal Cases Nos. 01-101102 to 01-101112 was barred by

Section 8, Rule 117 of the RRCP. The respondent avers that the proceedings in the appellate court are different from those in this Court. The respondent posits that this Court erred in giving considerable weight to the admissions he made in his pleadings and during the proceedings in the CA. He stresses that judicial admissions may only be used against a party if such admissions are (a) made in the course of the proceedings in the same case; and (b) made regarding a relevant fact, pursuant to Section 4, Rule 129 and Section 26, Rule 130 of the Rules of Evidence. He contends that contrary to the ruling of the Court, when he filed his motion for the judicial determination of probable cause in Criminal Cases Nos. Q-99-81679 to Q-99-81689, he thereby prayed for the dismissal of the said cases. His motion carried with it, at the very least, the prayer for the dismissal of the criminal cases. Absent a finding of probable cause, Judge Agnir, Jr. had no recourse but to dismiss the criminal cases. Moreover, the respondent avers that his motion included the general prayer "for such other reliefs as may be equitable in the premises." The respondent also points out that the public prosecutor agreed to the averments in his motion as the latter did not even file any motion for the reconsideration of Judge Agnir, Jr.s order dismissing the cases. The respondent further contends that the Court is not a trier of facts. It has no means to ascertain or verify as true the contrasting claims of the parties on the factual issues, a function best left to the trial court as the trier of facts. He posits that there is a need for the case to be remanded to the RTC to enable him to present evidence on whether or not Judge Agnir, Jr. complied with the notice requirements of Section 8. Echoing the May 28, 2002 ruling of this Court, the respondent contends that it is not fair to expect the element of notice under Section 8 to be litigated before Judge Agnir, Jr., for the said rule was not yet in existence at the time he filed his motion for a determination of probable cause. The respondent avers that the requirement for notices to the offended parties under Section 8 is a formal and not an essential requisite. In criminal cases, the offended party is the State and the role of the private complainant is limited to the determination of the civil liability of the accused. According to the respondent, notice to the prosecution provides sufficient safeguard for the private complainant to recover on the civil liability of the accused based on the delicts; after all, the prosecution of the offense is under the control and direction of the public prosecutor. The contentions of the respondent have no merit. First. The issue posed by the respondent in the CA and in this Court are the same. To recall, in Civil Case No. 01100933,31 the respondent32 sought injunctive relief from the RTC of Manila on his claim that in conducting a preliminary investigation in Criminal Cases Nos. 01-101102 to 01-101112, the petitioners thereby placed him in double jeopardy under Section 7, Rule 117 of the RRCP.33 When the RTC denied his plea for injunctive relief, the respondent filed his petition for certiorari in the CA, again invoking his right against double jeopardy, praying that: 13. Inasmuch as the case subject of the "preliminary investigation" was dismissed for the reasons mentioned, there currently exists no complaint upon which a valid investigation can be had in light of the clear provisions of Rule 110 which requires the existence of a "sworn written statement charging a person with an offense" as basis for the commencement of a preliminary investigation under Rule 112.1awphi1.nt For petitioner, the investigation covers exactly the same offenses over which he had been duly arraigned and a plea validly entered before the Sandiganbayan (in Criminal Cases Nos. 23047 to 57) before its remand to the QC RTC. Hence, to proceed therewith on similar charges will put him in jeopardy of being twice punished therefor (Article III, 21, Constitution).34 The respondent (petitioner therein) contended that the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 by Judge Agnir, Jr. amounted to a judgment of acquittal; hence, he could no longer be charged and prosecuted anew for the same offense without violating his right against double jeopardy. However, the respondent filed a second amended petition wherein he invoked for the first time Section 8 of Rule 117 of the RRCP: (e) the new criminal cases for Murder filed by respondents against petitioner and the other accused on June 6, 2001 (docketed as Criminal Cases Nos. 01-101102 to 01-101112) and pending before respondent Judge Yadao (Annex B) is dismissible on its face as they involve exactly the same accused, facts, and offenses which had previously been dismissed by the QC RTC in Criminal Cases Nos. Q-99-81679 to 89 on March 29, 1999, hence, can no longer be revived two (2) years after such dismissal in accordance with the clear provisions of Section 8, Rule 117.35 Indeed, the CA granted the respondents petition based on Section 8, Rule 117 of the RRCP. In this case, the respondent invoked the same rule and the Constitution. Thus, during the oral arguments in this Court, the respondent, through counsel, admitted that he was indeed invoking Section 8 anew and the provisions of the Constitution on double jeopardy: JUSTICE PANGANIBAN: You are saying that Sen. Lacson can no longer be prosecuted forever for that crime, for the killing of the 11 in 1995? ATTY. FORTUN:

That is my submission, Your Honor. JUSTICE PANGANIBAN: Let us see your reason for it? ATTY. FORTUN:36 First, are you saying that double jeopardy applies or not? JUSTICE PANGANIBAN:37 Allow me to qualify the effects of double jeopardy occur with permanent dismissal that is my submission. ATTY. FORTUN:38 No, no, I am not talking of the effects, I am talking of the doctrine, you are not invoking the doctrine of double jeopardy? ATTY. FORTUN: Your Honor, double jeopardy does not apply Section 8, 117 they are (interrupted) JUSTICE PANGANIBAN: That is right. ATTY. FORTUN: They are two different claims. JUSTICE PANGANIBAN: That is what I am trying to rule out so that we do not have to discuss it. ATTY. FORTUN: Very well, Your Honor. JUSTICE PANGANIBAN: You are not invoking double jeopardy? ATTY. FORTUN: As I mentioned we are saying that the effects of a permanent dismissal vest the effects (interrupted) JUSTICE PANGANIBAN: No, I am not talking of the effects, I am asking about the application, you are not asking the Court to apply the doctrine of double jeopardy to prevent a prosecution of Mr. Lacson? ATTY. FORTUN: Because the element of double jeopardy cannot apply 8, 117. JUSTICE PANGANIBAN: So, the answer is yes?

ATTY. FORTUN: No, Your Honor, we were saying that precisely a permanent dismissal vests the rights of double jeopardy upon the accused who invokes it. JUSTICE PANGANIBAN: What you are saying is the effects, I am not asking about the effects, I will ask that later. ATTY. FORTUN: They are two different (interrupted) JUSTICE PANGANIBAN: Later, I am asking about doctrines. Since you are not invoking the doctrine of double jeopardy you are resting your case win or lose, sink or sail on the application of 8,117? ATTY. FORTUN: On the constitutional right of the accused under Section 16 of Article 3 which is speedy disposition of cases which implemented 8,817, that is our arguments in this bar. JUSTICE PANGANIBAN: Are you not resting on 8,117? ATTY. FORTUN: That and the constitutional provision, Your Honor. JUSTICE PANGANIBAN: So, you are resting on 8,117? ATTY. FORTUN: Not exclusive, Your Honor. JUSTICE PANGANIBAN: And the Constitution? ATTY. FORTUN: The Constitution which gave life to 8,117. JUSTICE PANGANIBAN: To speedy disposition? ATTY. FORTUN: Yes, Your Honor. JUSTICE PANGANIBAN: Can a Court, let us see your theory then your theory rest on two provisions: first, the Rules of Court 8,117 and Second, the Constitution on speedy disposition?

ATTY. FORTUN: Yes, Your Honor.39 Second. The respondents answers to the questions of Madame Justice Josefina Salonga during the hearing in the CA where he admitted, through counsel, that he gave no express conformity to the dismissal of the cases by Judge Agnir, Jr., were in relation to Section 8 of Rule 117 and not to Section 7 of Rule 117 on double jeopardy, thus: JUSTICE SALONGA: Do we get it from you that it is your stand that this is applicable to the case at bar? ATTY. FORTUN: It is my submission, that it is, Your Honor. In addition, of course, to my proposition that Mr. Lacson is covered by the rule on double jeopardy as well, because he had already been arraigned before the Sandiganbayan prior to the case being remanded to the RTC. JUSTICE SALONGA: You are referring to those cases which were dismissed by the RTC of Quezon City. ATTY. FORTUN: Yes, Your Honor. JUSTICE SALONGA: And it is your stand that the dismissal made by the Court was provisional in nature? ATTY. FORTUN: It was in that the accused did not ask for it. What they wanted at the onset was simply a judicial determination of probable cause for warrants of arrest issued. Then Judge Agnir, [Jr.] upon the presentation by the parties of their witnesses, particularly those who had withdrawn their affidavits, made one further conclusion that not only was this case lacking in probable cause for purposes of the issuance of an arrest warrant but also it did not justify proceeding to trial. JUSTICE SALONGA: And it is expressly provided under Section 8 that a case shall not be provisionally dismissed except [if] it is with the express conformity of the accused. ATTY. FORTUN: That is correct, Your Honor. JUSTICE SALONGA: And with notice to the offended party. ATTY. FORTUN: That is correct, Your Honor. JUSTICE SALONGA: Was there an express conformity on the part of the accused? ATTY. FORTUN:

There was none, Your Honor. We were not asked to sign any order, or any statement which would normally be required by the Court on pre-trial or on other matters, including other provisional dismissal. My very limited practice in criminal courts, Your Honor, had taught me that a judge must be very careful on this matter of provisional dismissal. In fact, they ask the accused to come forward, and the judge himself or herself explains the implications of a provisional dismissal.40 The respondent, through counsel, even admitted that despite his plea for equitable relief in his motion for a judicial determination of probable cause in the RTC, he did not agree to a provisional dismissal of the cases. The respondent insisted that the only relief he prayed for before Judge Agnir, Jr. was that warrants for his arrest be withheld pending a finding of probable cause. He asserted that the judge did not even require him to agree to a provisional dismissal of the cases: JUSTICE ROSARIO: You were present during the proceedings? ATTY. FORTUN: Yes, Your Honor. JUSTICE ROSARIO: You represented the petitioner in this case? ATTY. FORTUN: That is correct, Your Honor. And there was nothing of that sort which the good Judge Agnir, [Jr.] who is most knowledgeable in criminal law, had done in respect of provisional dismissal or the matter of Mr. Lacson agreeing to the provisional dismissal of the case. JUSTICE GUERRERO: Now, you filed a motion, the other accused then filed a motion for a judicial determination of probable cause? ATTY. FORTUN: Yes, Your Honor. JUSTICE GUERRERO: Did you make any alternative prayer in your motion that if there is no probable cause what should the Court do? ATTY. FORTUN: That the arrest warrants only be withheld. That was the only prayer that we asked. In fact, I have a copy of that particular motion, and if I may read my prayer before the Court, it said: "Wherefore, it is respectfully prayed that (1) a judicial determination of probable cause pursuant to Section 2, Article III of the Constitution be conducted, and for this purpose, an order be issued directing the prosecution to present private complainants and their witnesses at the scheduled hearing for that purpose; and (2) the warrants for the arrest of the accused be withheld, or, if issued, recalled in the meantime until resolution of this incident." JUSTICE GUERRERO: There is no general prayer for any further relief? ATTY. FORTUN: There is but it simply says other equitable reliefs are prayed for. JUSTICE GUERRERO:

Dont you surmise Judge Agnir, [Jr.] now a member of this Court, precisely addressed your prayer for just and equitable relief to dismiss the case because what would be the net effect of a situation where there is no warrant of arrest being issued without dismissing the case? ATTY. FORTUN: Yes, Your Honor. I will not second say ( sic) yes the Good Justice, but what is plain is we did not agree to the provisional dismissal, neither were we asked to sign any assent to the provisional dismissal. JUSTICE GUERRERO: If you did not agree to the provisional dismissal, did you not file any motion for reconsideration of the order of Judge Agnir, [Jr.] that the case should be dismissed? ATTY. FORTUN: I did not, Your Honor, because I knew fully well at that time that my client had already been arraigned, and the arraignment was valid as far as I was concerned. So, the dismissal, Your Honor, by Judge Agnir operated to benefit me, and therefore I did not take any further step in addition to rocking the boat or clarifying the matter further because it probably could prejudice the interest of my client. JUSTICE GUERRERO: Continue.41 In his memorandum, in lieu of the oral argument filed with the Court of Appeals, the respondent declared in no uncertain terms that: Soon thereafter, the SC in early 1999 rendered a decision declaring the Sandiganbayan without jurisdiction over the cases. The records were remanded to the QC RTC. Upon raffle, the case was assigned to Branch 91. Petitioner and the others promptly filed a motion for judicial determination of probable cause (Annex B). He asked that warrants for his arrest not be issued. He did not move for the dismissal of the Informations, contrary to respondent OSGs claim.42 Section 4, Rule 129 of the Revised Rules of Court reads: Sec. 4. Judicial admissions. An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made. A judicial admission is a formal statement made either by a party or his or her attorney, in the course of judicial proceeding which removes an admitted fact from the field of controversy. It is a voluntary concession of fact by a party or a partys attorney during such judicial proceedings, including admissions in pleadings made by a party. 43 It may occur at any point during the litigation process. An admission in open court is a judicial admission. 44 A judicial admission binds the client even if made by his counsel.45 As declared by this Court: ... [I]n fact, "judicial admissions are frequently those of counsel or of attorney of record, who is, for the purpose of the trial, the agent of his client. When such admissions are made ... for the purpose of dispensing with proof of some fact, ... they bind the client, whether made during, or even after the trial."46 When the respondent admitted that he did not move for the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 in his motion for a judicial determination of probable cause, and that he did not give his express consent to the provisional dismissal of the said cases, he in fact admitted that one of the essential requisites of Section 8, Rule 117 was absent. The respondents contention that his admissions made in his pleadings and during the hearing in the CA cannot be used in the present case as they were made in the course of a different proceeding does not hold water. It should be borne in mind that the proceedings before the Court was by way of an appeal under Rule 45 of the Rules of Court, as amended, from the proceedings in the CA; as such, the present recourse is but a mere continuation of the proceedings in the appellate court. This is not a new trial, but a review of proceedings which commenced from the trial court, which later passed through the CA. The respondent is bound by the judicial admissions he made in the CA, and such admissions so hold him in the proceedings before this Court. As categorically stated in Habecker v. Clark Equipment Company:47 ... [J]udicial admissions on issues of fact, including those made by counsel on behalf of a client during a trial, are binding "for the purpose of the case ... including appeals."

While it may be true that the trial court may provisionally dismiss a criminal case if it finds no probable cause, absent the express consent of the accused to such provisional dismissal, the latter cannot thereafter invoke Section 8 to bar a revival thereof. Neither may the accused do so simply because the public prosecutor did not object to a motion of the accused for a judicial determination of probable cause or file a motion for the reconsideration of the order of dismissal of the case. Even a cursory reading of the respondents motion for a judicial determination of probable cause will show that it contained no allegation that there was no probable cause for the issuance of a warrant for the respondents arrest as a prayer for the dismissal of the cases. The respondent was only asking the court to determine whether or not there was probable cause for the issuance of a warrant for his arrest and in the meantime, to hold in abeyance the issuance of the said warrant. Case law has it that a prayer for equitable relief is of no avail, unless the petition states facts which will authorize the court to grant such relief.48 A court cannot set itself in motion, nor has it power to decide questions except as presented by the parties in their pleadings. Anything that is resolved or decided beyond them is coram non judice and void.49 Third. There is no need for the Court to remand the instant case to the trial court to enable the respondent to adduce post facto evidence that the requisite notices under Section 8 had been complied with by Judge Agnir, Jr. The Court has thoroughly examined the voluminous records from the Sandiganbayan and the RTC 50 and found no proof that the requisite notices were even served on all the heirs of the victims. The respondent himself admitted that, as held by this Court, in its May 28, 2002 Resolution, "Judge Agnir, Jr. could not have complied with the mandate under Section 8 because said rule had yet to exist."51 One final matter. The records show that Criminal Cases Nos. 01-101102 to 01-101112 were assigned, through the customary raffle of cases, to Branch 81 of the RTC of Quezon City, the same branch which dismissed Criminal Cases Nos. 99-81679 to 99-81689.52 In the April 1, 2003 Resolution of the Court, the Presiding Judge of Branch 81 of the RTC of Quezon City was directed to try and decide Criminal Cases Nos. 01-101102 to 01-101112 with reasonable dispatch. The Court notes, however, that in Administrative Order No. 104-96, it designated six branches of the RTC of Quezon City 53 as special courts, exclusively to try and decide heinous crimes under Rep. Act No. 7659. Since the accused in the said cases are charged with murder, which under Rep. Act No. 7659, is classified as a heinous crime, the above cases should be consolidated and re-raffled by the Executive Judge of the RTC of Quezon City to a branch thereof designated as a special court, exclusively to try and decide heinous crimes. IN LIGHT OF ALL THE FOREGOING , respondent Panfilo M. Lacsons Omnibus Motion and Motion to Set for Oral Arguments are DENIED. The respondents Motion for Reconsideration and its Supplement are DENIED WITH FINALITY. The Executive Judge of the Regional Trial Court of Quezon City is hereby DIRECTED to CONSOLIDATE Criminal Cases Nos. 01-101102 to 01-101112 and to RE-RAFFLE the same with dispatch to one of the branches of the Regional Trial Court of Quezon City designated as a special court, exclusively to try and decide heinous crimes. SO ORDERED. G.R. No. 151876 June 21, 2005 PEOPLE OF THE PHILIPPINES, petitioners,

SUSAN GO and the vs. FERNANDO L. DIMAGIBA, respondent. DECISION PANGANIBAN, J.:

Administrative Circular 12-2000, as clarified by Administrative Circular 13-2001, merely establishes a rule of preference in imposing penalties for violations of Batas Pambansa Blg. 22 (BP 22), the "Bouncing Checks Law." When the circumstances of both the offense and the offender indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone -- instead of imprisonment -- is the preferred penalty. As the Circular requires a review of the factual circumstances of a given case, it applies only to pending or future litigations. It is not a penal law; hence, it does not have retroactive effect. Neither may it be used to modify final judgments of conviction. The Case Before us is a Petition for Review 1 under Rule 45 of the Rules of Court, assailing the October 10, 2001 2 and the October 11, 20013 Orders of the Regional Trial Court (RTC) (Branch 5), Baguio City. 4 The October 10, 2001 Order released Respondent Fernando L. Dimagiba from confinement and required him to pay a fine of P100,000 in lieu of imprisonment. The October 11, 2001 Order disposed as follows: "WHEREFORE, [in] applying the doctrine as held in the above-entitled cases in this case, the instant petition for Habeas Corpus should be, as it is hereby, GRANTED. The Baguio City Jail Warden is hereby ordered to IMMEDIATELY RELEASE the petitioner from confinement unless he is being held for some other lawful cause other than by virtue of the Sentence Mittimus dated September 28, 2001 issued by CESAR S. VIDUYA, Clerk of Court, MTC 4, Baguio City. Further, the petitioner

is required to pay a fine in the amount of P100,000.00 in lieu of his imprisonment, in addition to the civil aspect of the Joint Judgment rendered by MTC 4 dated July 16, 1999."5 The Facts The pertinent facts are not disputed. Respondent Fernando L. Dimagiba issued to Petitioner Susan Go thirteen (13) checks which, when presented to the drawee bank for encashment or payment on the due dates, were dishonored for the reason "account closed."6 Dimagiba was subsequently prosecuted for 13 counts of violation of BP 227 under separate Complaints filed with the Municipal Trial Court in Cities (MTCC) in Baguio City.8 After a joint trial, the MTCC (Branch 4) rendered a Decision on July 16, 1999, convicting the accused in the 13 cases. The dispositive portion reads as follows: "WHEREFORE, in view of the foregoing disquisition, this Court finds the evidence of the prosecution to have established the guilt of the accused beyond reasonable doubt of the offenses charged and imposes upon the accused the penalty of 3 months imprisonment for each count (13 counts) and to indemnify the offended party the amount of One Million Two Hundred Ninety Five Thousand Pesos (P1,295,000.00) with legal interest per annum commencing from 1996 after the checks were dishonored by reason ACCOUNT CLOSED on December 13, 1995, to pay attorneys fees of P15,000.00 and to pay the costs."9 The appeal of Dimagiba was raffled to Branch 4 of the RTC in Baguio City. 10 On May 23, 2000, the RTC denied the appeal and sustained his conviction.11 There being no further appeal to the Court of Appeals (CA), the RTC issued on February 1, 2001, a Certificate of Finality of the Decision.12 Thus, on February 14, 2001, the MTCC issued an Order directing the arrest of Dimagiba for the service of his sentence as a result of his conviction. The trial court also issued a Writ of Execution to enforce his civil liability.13 On February 27, 2001, Dimagiba filed a Motion for Reconsideration of the MTCC Order. He prayed for the recall of the Order of Arrest and the modification of the final Decision, arguing that the penalty of fine only, instead of imprisonment also, should have been imposed on him.14 The arguments raised in that Motion were reiterated in a Motion for the Partial Quashal of the Writ of Execution filed on February 28, 2001.15 In an Order dated August 22, 2001, the MTCC denied the Motion for Reconsideration and directed the issuance of a Warrant of Arrest against Dimagiba.16 On September 28, 2001, he was arrested and imprisoned for the service of his sentence. On October 9, 2001, he filed with the RTC of Baguio City a Petition 17 for a writ of habeas corpus. The case was raffled to Branch 5, which scheduled the hearing for October 10, 2001. Copies of the Order were served on respondents counsels and the city warden.18 Ruling of the Regional Trial Court Right after hearing the case on October 10, 2001, the RTC issued an Order directing the immediate release of Dimagiba from confinement and requiring him to pay a fine of P100,000 in lieu of imprisonment. However, the civil aspect of the July 16, 1999 MTCC Decision was not touched upon. 19 A subsequent Order, explaining in greater detail the basis of the grant of the writ of habeas corpus, was issued on October 11, 2001.20 In justifying its modification of the MTCC Decision, the RTC invoked Vaca v. Court of Appeals21 and Supreme Court Administrative Circular (SC-AC) No. 12-2000,22 which allegedly required the imposition of a fine only instead of imprisonment also for BP 22 violations, if the accused was not a recidivist or a habitual delinquent. The RTC held that this rule should be retroactively applied in favor of Dimagiba.23 It further noted that (1) he was a first-time offender and an employer of at least 200 workers who would be displaced as a result of his imprisonment; and (2) the civil liability had already been satisfied through the levy of his properties.24 On October 22, 2001, Petitioner Go filed a Motion for Reconsideration of the RTC Orders dated October 10 and 11, 2001.25 That Motion was denied on January 18, 2002.26 Hence, this Petition filed directly with this Court on pure questions of law.27 The Issues Petitioner raises the following issues for this Courts consideration: "1. [The RTC] Judge was utterly devoid of jurisdiction in amending a final and conclusive decision of the Municipal Trial Court, Branch 4, dated July 16, 1999, in nullifying the Sentence Mittimus, dated September 28, 2001, issued by x x x [the] Municipal Trial Court, Branch 4, Baguio City, and in ordering the release of [Dimagiba] from confinement in jail for the service of his sentence under the said final and conclusive judgment;

"2. Assuming only for the sake of argument that habeas corpus is the proper remedy, the Petition for Habeas Corpus is utterly devoid of merit as [Dimagiba was] not entitled to the beneficent policy enunciated in the Eduardo Vaca and Rosa Lim cases and reiterated in the Supreme Court Circular No. 12-2000; x x x "3. Granting for the sake of argument that [Dimagiba was] entitled to the beneficent policy enunciated in the Eduardo Vaca and Rosa Lim cases and reiterated in the Supreme Court Circular No. 12-2000, the minimum fine that should be imposed on [Dimagiba] is one million and two hundred ninety five thousand pesos (P1,295,000.00) up to double the said amount or (P2,590,000), not just the measly amount of P100,000; and "4. [The RTC] judge committed grave abuse of discretion amounting to lack or excess of jurisdiction in hearing and deciding [Dimagibas] Petition for Habeas Corpus without notice and without affording procedural due process to the People of the Philippines through the Office of [the] City Prosecutor of Baguio City or the Office of the Solicitor General."28 In the main, the case revolves around the question of whether the Petition for habeas corpus was validly granted. Hence, the Court will discuss the four issues as they intertwine with this main question.29 The Courts Ruling The Petition is meritorious. Main Issue: Propriety of the Writ of Habeas Corpus The writ of habeas corpus applies to all cases of illegal confinement or detention in which individuals are deprived of liberty. 30 It was devised as a speedy and effectual remedy to relieve persons from unlawful restraint; or, more specifically, to obtain immediate relief for those who may have been illegally confined or imprisoned without sufficient cause and thus deliver them from unlawful custody.31 It is therefore a writ of inquiry intended to test the circumstances under which a person is detained.32 The writ may not be availed of when the person in custody is under a judicial process or by virtue of a valid judgment.33However, as a post-conviction remedy, it may be allowed when, as a consequence of a judicial proceeding, any of the following exceptional circumstances is attendant: (1) there has been a deprivation of a constitutional right resulting in the restraint of a person; (2) the court had no jurisdiction to impose the sentence; or (3) the imposed penalty has been excessive, thus voiding the sentence as to such excess.34 In the present case, the Petition for a writ of habeas corpus was anchored on the ruling in Vaca and on SC-AC No. 12-2000, which allegedly prescribed the imposition of a fine, not imprisonment, for convictions under BP 22. Respondent sought the retroactive effect of those rulings, thereby effectively challenging the penalty imposed on him for being excessive. From his allegations, the Petition appeared sufficient in form to support the issuance of the writ. However, it appears that respondent has previously sought the modification of his sentence in a Motion for Reconsideration35 of the MTCCs Execution Order and in a Motion for the Partial Quashal of the Writ of Execution. 36 Both were denied by the MTCC on the ground that it had no power or authority to amend a judgment issued by the RTC. In his Petition for habeas corpus, respondent raised the same arguments that he had invoked in the said Motions. We believe that his resort to this extraordinary remedy was a procedural infirmity. The remedy should have been an appeal of the MTCC Order denying his Motions, in which he should have prayed that the execution of the judgment be stayed. But he effectively misused the action he had chosen, obviously with the intent of finding a favorable court. His Petition for a writ of habeas corpus was clearly an attempt to reopen a case that had already become final and executory. Such an action deplorably amounted to forum shopping. Respondent should have resorted to the proper, available remedy instead of instituting a different action in another forum. The Court also finds his arguments for his release insubstantial to support the issuance of the writ of habeas corpus. Preference in the Application of Penalties for Violation of BP 22 The following alternative penalties are imposable under BP 22: (1) imprisonment of not less than 30 days, but not more than one year; (2) a fine of not less or more than double the amount of the check, a fine that shall in no case exceed P200,000; or (3) both such fine and imprisonment, at the discretion of the court.37 SC-AC No. 12-2000, as clarified by SC-AC No. 13-2001, 38 established a rule of preference in imposing the above penalties.39 When the circumstances of the case clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone may be considered as the preferred penalty. 40 The determination of the

circumstances that warrant the imposition of a fine rests upon the trial judge only. 41 Should the judge deem that imprisonment is appropriate, such penalty may be imposed.42 SC-AC No. 12-2000 did not delete the alternative penalty of imprisonment. The competence to amend the law belongs to the legislature, not to this Court.43 Inapplicability of SC-AC No. 12-2000 Petitioners argue that respondent is not entitled to the benevolent policy enunciated in SC-AC No. 12-2000, because he is not a "first time offender."44 This circumstance is, however, not the sole factor in determining whether he deserves the preferred penalty of fine alone. The penalty to be imposed depends on the peculiar circumstances of each case. 45 It is the trial courts discretion to impose any penalty within the confines of the law. SC-AC No. 13-2001 explains thus: "x x x. Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions of BP 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the Judge. x x x. It is, therefore, understood that: xxxxxxxxx "2. The Judges concerned, may in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice, or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice;" The Court notes that the Petition for a writ of habeas corpus relied mainly on the alleged retroactivity of SC-AC No. 12-2000, which supposedly favored BP 22 offenders.46 On this point, Dimagiba contended that his imprisonment was violative of his right to equal protection of the laws, since only a fine would be imposed on others similarly situated.47 The rule on retroactivity states that criminal laws may be applied retroactively if favorable to the accused. This principle, embodied in the Revised Penal Code,48 has been expanded in certain instances to cover special laws.49 The issue of retroactivity of SC-AC No. 12-2000 was settled in De Joya v. Jail Warden of Batangas City,50 which we quote: "Petitioner's reliance of our ruling in Ordoez v. Vinarao that a convicted person is entitled to benefit from the reduction of penalty introduced by the new law, citing People v. Simon, is misplaced. Thus, her plea that as provided for in Article 22 of the Revised Penal Code, SC Admin. Circular No. 12-2000 as modified by SC Admin. Circular No. 13-2001 should benefit her has no basis. "First. SC Admin. Circular No. 12-2000 is not a penal law; hence, Article 22 of the Revised Penal Code is not applicable. The circular applies only to those cases pending as of the date of its effectivity and not to cases already terminated by final judgment. "Second. As explained by the Court in SC Admin. Circular No. 13-2001, SC Admin. Circular No. 12-2000 merely lays down a rule of preference in the application of the penalties for violation of B.P. Blg. 22. It does not amend B.P. Blg. 22, nor defeat the legislative intent behind the law. SC Admin. Circular No. 12-2000 merely urges the courts to take into account not only the purpose of the law but also the circumstances of the accused -- whether he acted in good faith or on a clear mistake of fact without taint of negligence -- and such other circumstance which the trial court or the appellate court believes relevant to the penalty to be imposed."51 Because the Circular merely lays down a rule of preference, it serves only as a guideline for the trial courts. Thus, it is addressed to the judges, who are directed to consider the factual circumstances of each case prior to imposing the appropriate penalty. In other words, the Administrative Circular does not confer any new right in favor of the accused, much less those convicted by final judgment. The competence to determine the proper penalty belongs to the court rendering the decision against the accused. 52 That decision is subject only to appeal on grounds of errors of fact or law, or grave abuse of discretion amounting to lack or excess of jurisdiction. Another trial court may not encroach upon this authority. Indeed, SC-AC No. 12-2000 necessarily requires a review of all factual circumstances of each case. Such a review can no longer be done if the judgment has become final and executory.

In the present case, the MTCC of Baguio City had full knowledge of all relevant circumstances from which respondents conviction and sentence were based. The penalty imposed was well within the confines of the law. Upon appeal, the conviction was sustained by RTC-Branch 4 of Baguio City. Eventually, the Decision attained finality. Hence, RTC-Branch 5 did not have the jurisdiction to modify the lawful judgment in the guise of granting a writ of habeas corpus. The doctrine of equal protection of laws 53 does not apply for the same reasons as those on retroactivity. Foremost of these reasons is that the Circular is not a law that deletes the penalty of imprisonment. As explained earlier, it is merely a rule of preference as to which penalty should be imposed under the peculiar circumstances of a case. At any rate, this matter deserves scant consideration, because respondent failed to raise any substantial argument to support his contention.54 Modification of Final Judgment Not Warranted The Court is not unmindful of So v. Court of Appeals,55 in which the final judgment of conviction for violation of BP 22 was modified by the deletion of the sentence of imprisonment and the imposition of a fine. That case proceeded from an "Urgent Manifestation of an Extraordinary Supervening Event," 56 not from an unmeritorious petition for a writ of habeas corpus, as in the present case. The Court exercised in that case its authority to suspend or to modify the execution of a final judgment when warranted or made imperative by the higher interest of justice or by supervening events. 57 The supervening event in that case was the petitioners urgent need for coronary rehabilitation for at least one year under the direct supervision of a coronary care therapist; imprisonment would have been equivalent to a death sentence.58 The peculiar circumstances of So do not obtain in the present case. Respondents supposed "unhealthy physical condition due to a triple by-pass operation, and aggravated by hypertension," cited by the RTC in its October 10, 2001 Order, 59 is totally bereft of substantial proof. The Court notes that respondent did not make any such allegation in his Petition for habeas corpus. Neither did he mention his physical state in his Memorandum and Comment submitted to this Court. Respondent seeks the retroactive application of SC-AC No. 12-2000 in his favor on the basis alone of the alleged settlement of his civil liability.60 Citing Griffith v. Court of Appeals,61 he theorizes that answering for a criminal offense is no longer justified after the settlement of the debt. Respondent, however, misreads Griffith. The Court held in that case that convicting the accused who, two years prior to the filing of the BP 22 cases, had already paid his debt (from which the checks originated) was contrary to the basic principles of fairness and justice.62 Obviously, that situation is not attendant here. The civil liability in the present case was satisfied through the levy and sale of the properties of respondent only after the criminal case had been terminated with his conviction. 63 Apparently, he had sufficient properties that could have been used to settle his liabilities prior to his conviction. Indeed, such an early settlement would have been an indication that he was in good faith, a circumstance that could have been favorably considered in determining his appropriate penalty. At any rate, civil liability differs from criminal liability. 64 What is punished in the latter is not the failure to pay the obligation, but the issuance of checks that subsequently bounced or were dishonored for insufficiency or lack of funds. 65 The Court reiterates the reasons why the issuance of worthless checks is criminalized: "The practice is prohibited by law because of its deleterious effects on public interest. The effects of the increase of worthless checks transcend the private interest of the parties directly involved in the transaction and touches the interest of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to the public. The harmful practice of putting valueless commercial papers in circulation multiplied a thousand-fold can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public interest. The law punishes the act not as an offense against property but an offense against public order."66 WHEREFORE, the Petition is GRANTED and the assailed Orders NULLIFIED. Respondents Petition for habeas corpus is hereby DENIED. Let this case be REMANDED to MTCC of Baguio City for the re-arrest of respondent and the completion of his sentence. No pronouncement as to costs. SO ORDERED. Territoriality G.R. No. L-5270 January 15, 1910 UNITED STATES, plaintiff-appellee,

THE vs. H. N. BULL, defendant-appellant.

Bruce & Office of the Solicitor-General Harvey, for appellee. ELLIOTT, J.:

Lawrence,

for

appellant.

The appellant was convicted in the Court of First Instance of a violation of section 1 of Act No. 55, as amended by section 1 of Act No. 275, and from the judgment entered thereon appealed to this court, where under proper assignments of error he contends: (1) that the complaint does not state facts sufficient to confer jurisdiction upon the court; (2) that under the evidence the trial court was without jurisdiction to hear and determine the case; (3) that Act No. 55 as amended is in violation of certain provisions of the Constitution of the United States, and void as applied to the facts of this case; and (4) that the evidence is insufficient to support the conviction. The information alleges: That on and for many months prior to the 2d day of December, 1908, the said H. N. Bull was then and there master of a steam sailing vessel known as the steamship Standard, which vessel was then and there engaged in carrying and transporting cattle, carabaos, and other animals from a foreign port and city of Manila, Philippine Islands; that the said accused H. N. Bull, while master of said vessel, as aforesaid, on or about the 2d day of December, 1908, did then and there willfully, unlawfully, and wrongly carry, transport, and bring into the port and city of Manila, aboard said vessel, from the port of Ampieng, Formosa, six hundred and seventy-seven (677) head of cattle and carabaos, without providing suitable means for securing said animals while in transit, so as to avoid cruelty and unnecessary suffering to the said animals, in this, to wit, that the said H. N. Bull, master, as aforesaid, did then and there fail to provide stalls for said animals so in transit and suitable means for trying and securing said animals in a proper manner, and did then and there cause some of said animals to be tied by means of rings passed through their noses, and allow and permit others to be transported loose in the hold and on the deck of said vessel without being tied or secured in stalls, and all without bedding; that by reason of the aforesaid neglect and failure of the accused to provide suitable means for securing said animals while so in transit, the noses of some of said animals were cruelly torn, and many of said animals were tossed about upon the decks and hold of said vessel, and cruelly wounded, bruised, and killed. All contrary to the provisions of Acts No. 55 and No. 275 of the Philippine Commission. Section 1 of Act No. 55, which went into effect January 1, 1901, provides that The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle, sheep, swine, or other animals, from one port in the Philippine Islands to another, or from any foreign port to any port within the Philippine Islands, shall carry with them, upon the vessels carrying such animals, sufficient forage and fresh water to provide for the suitable sustenance of such animals during the ordinary period occupied by the vessel in passage from the port of shipment to the port of debarkation, and shall cause such animals to be provided with adequate forage and fresh water at least once in every twenty-four hours from the time that the animals are embarked to the time of their final debarkation. By Act No. 275, enacted October 23, 1901, Act No. 55 was amended by adding to section 1 thereof the following: The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle, sheep, swine, or other animals from one port in the Philippine Islands to another, or from any foreign port to any port within the Philippine Islands, shall provide suitable means for securing such animals while in transit so as to avoid all cruelty and unnecessary suffering to the animals, and suitable and proper facilities for loading and unloading cattle or other animals upon or from vessels upon which they are transported, without cruelty or unnecessary suffering. It is hereby made unlawful to load or unload cattle upon or from vessels by swinging them over the side by means of ropes or chains attached to the thorns. Section 3 of Act No. 55 provides that Any owner or master of a vessel, or custodian of such animals, who knowingly and willfully fails to comply with the provisions of section one, shall, for every such failure, be liable to pay a penalty of not less that one hundred dollars nor more that five hundred dollars, United States money, for each offense. Prosecution under this Act may be instituted in any Court of First Instance or any provost court organized in the province or port in which such animals are disembarked. 1. It is contended that the information is insufficient because it does not state that the court was sitting at a port where the cattle were disembarked, or that the offense was committed on board a vessel registered and licensed under the laws of the Philippine Islands. Act No. 55 confers jurisdiction over the offense created thereby on Courts of First Instance or any provost court organized in the province or port in which such animals are disembarked, and there is nothing inconsistent therewith in Act No. 136, which provides generally for the organization of the courts of the Philippine Islands. Act No. 400 merely extends the general jurisdiction of the courts over certain offenses committed on the high seas, or beyond the jurisdiction of any country, or within

any of the waters of the Philippine Islands on board a ship or water craft of any kind registered or licensed in the Philippine Islands, in accordance with the laws thereof. (U.S. vs. Fowler, 1 Phil. Rep., 614.) This jurisdiction may be exercised by the Court of First Instance in any province into which such ship or water upon which the offense or crime was committed shall come after the commission thereof. Had this offense been committed upon a ship carrying a Philippine registry, there could have been no doubt of the Jurisdiction of the court, because it is expressly conferred, and the Act is in accordance with well recognized and established public law. But the Standard was a Norwegian vessel, and it is conceded that it was not registered or licensed in the Philippine Islands under the laws thereof. We have then the question whether the court had jurisdiction over an offense of this character, committed on board a foreign ship by the master thereof, when the neglect and omission which constitutes the offense continued during the time the ship was within the territorial waters of the United States. No court of the Philippine Islands had jurisdiction over an offenses or crime committed on the high seas or within the territorial waters of any other country, but when she came within 3 miles of a line drawn from the headlines which embrace the entrance to Manila Bay, she was within territorial waters, and a new set of principles became applicable. (Wheaton, Int. Law (Dana ed.), p. 255, note 105; Bonfils, Le Droit Int., sec 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the jurisdiction of the territorial sovereign subject through the proper political agency. This offense was committed within territorial waters. From the line which determines these waters the Standardmust have traveled at least 25 miles before she came to anchor. During that part of her voyage the violation of the statue continued, and as far as the jurisdiction of the court is concerned, it is immaterial that the same conditions may have existed while the vessel was on the high seas. The offense, assuming that it originated at the port of departure in Formosa, was a continuing one, and every element necessary to constitute it existed during the voyage across the territorial waters. The completed forbidden act was done within American waters, and the court therefore had jurisdiction over the subject-matter of the offense and the person of the offender. The offense then was thus committed within the territorial jurisdiction of the court, but the objection to the jurisdiction raises the further question whether that jurisdiction is restricted by the fact of the nationality of the ship. Every. Every state has complete control and jurisdiction over its territorial waters. According to strict legal right, even public vessels may not enter the ports of a friendly power without permission, but it is now conceded that in the absence of a prohibition such ports are considered as open to the public ship of all friendly powers. The exemption of such vessels from local jurisdiction while within such waters was not established until within comparatively recent times. In 1794, Attorney-General Bradford, and in 1796 Attorney-General Lee, rendered opinions to the effect that "the laws of nations invest the commander of a foreign ship of war with no exemption from the jurisdiction of the country into which he comes." (1, Op. U.S. Attys. Gen., 46, 87.) This theory was also supported by Lord Stowell in an opinion given by him to the British Government as late as 1820. In the leading case of the Schooner Exchange vs. McFadden (7 Cranch (U.S.), 116, 144), Chief Justice Marshall said that the implied license under which such vessels enter a friendly port may reasonably be construed as "containing exemption from the jurisdiction of the sovereign within whose territory she claims the rights of hospitality." The principle was accepted by the Geneva Arbitration Tribunal, which announced that "the priviledge of exterritoriality accorded to vessels of war has been admitted in the law of nations; not as an absolute right, but solely as a proceeding founded on the principle of courtesy and mutual deference between nations." (2 Moore, Int. Law Dig., secs. 252 and 254; Hall, Int. Law, sec. 55; Taylor, Int. Law, sec. 256; Ortolan, Dip de la Mer, 2. C.X.) Such vessels are therefore permitted during times of peace to come and go freely. Local official exercise but little control over their actions, and offenses committed by their crew are justiciable by their own officers acting under the laws to which they primarily owe allegiance. This limitation upon the general principle of territorial sovereignty is based entirely upon comity and convenience, and finds its justification in the fact that experience shows that such vessels are generally careful to respect local laws and regulation which are essential to the health, order, and well-being of the port. But comity and convenience does not require the extension of the same degree of exemption to merchant vessels. There are two well-defined theories as to extent of the immunities ordinarily granted to them, According to the French theory and practice, matters happening on board a merchant ship which do not concern the tranquillity of the port or persons foreign to the crew, are justiciable only by the court of the country to which the vessel belongs. The French courts therefore claim exclusive jurisdiction over crimes committed on board French merchant vessels in foreign ports by one member of the crew against another. (See Bonfils, Le Droit Int. (quat. ed.), secs. 624-628; Martens, Le Droit Int., tome 2, pp. 338, 339; Ortolan, Dip. de la Mer, tit. 1, p. 292; Masse, Droit Int., tome 2, p. 63.) Such jurisdiction has never been admitted or claim by Great Britain as a right, although she has frequently conceded it by treaties. (Halleck, Int. Law (Baker's ed.), vol. 1, 231; British Territorial Waters Act, 1878.) Writers who consider exterritoriality as a fact instead of a theory have sought to restrict local jurisdiction, but Hall, who is doubtless the leading English authority, says that It is admitted by the most thoroughgoing asserters of the territoriality of merchant vessels that so soon as the latter enter the ports of a foreign state they become subject to the local jurisdiction on all points in which the interests of the country are touched. (Hall, Int. Law, p. 263.) The United States has adhered consistently to the view that when a merchant vessel enters a foreign port it is subject to the jurisdiction of the local authorities, unless the local sovereignty has by act of acquiescence or through treaty arrangements consented to waive a portion of such jurisdiction. (15 Op. Attys. Gen., U. S., 178; 2 Moore, Int. Law Dig., sec. 204; article by Dean Gregory, Mich. Law Review, Vol. II, No. 5.) Chief Justice Marshall, in the case of the Exchange, said that When merchant vessels enter for the purpose of trade, in would be obviously in convinient and dangerous to society and would subject the laws to continual infraction and the government to degradation if such individual merchants did not owe temporary and local allegiance, and were not amendable to the jurisdiction of the country.

The Supreme Court of the United States has recently said that the merchant vessels of one country visiting the ports of another for the purpose of trade, subject themselves to the laws which govern the ports they visit, so long as they remain; and this as well in war as in peace, unless otherwise provided by treaty. (U. S. vs. Diekelman, 92 U. S., 520-525.) Certain limitations upon the jurisdiction of the local courts are imposed by article 13 of the treaty of commerce and navigation between Sweden and Norway and the United States, of July 4, 1827, which concedes to the consul, vice-consuls, or consular agents of each country "The right to sit as judges and arbitrators in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities, unless the conduct of the crews or of the captains should disturb the order or tranquillity of the country." (Comp. of Treaties in Force, 1904, p. 754.) This exception applies to controversies between the members of the ship's company, and particularly to disputes regarding wages. (2 Moore, Int. Law Dig., sec. 206, p. 318; Tellefsen vs. Fee, 168 Mass., 188.) The order and tranquillity of the country are affected by many events which do not amount to a riot or general public disturbance. Thus an assault by one member of the crew upon another, committed upon the ship, of which the public may have no knowledge whatever, is not by this treaty withdrawn from the cognizance of the local authorities. In 1876 the mates of the Swedish bark Frederike and Carolina engaged in a "quarrel" on board the vessel in the port of Galveston, Texas. They were prosecuted before a justice of the peace, but the United States district attorney was instructed by the Government to take the necessary steps to have the proceedings dismissed, and the aid of the governor of Texas was invoked with the view to "guard against a repetition of similar proceedings." (Mr. Fish, Secretary of State, to Mr. Grip, Swedish and Norwegian charged, May 16, 1876; Moore, Int. Law Dig.) It does not appear that this "quarrel" was of such a nature as to amount to a breach of the criminal laws of Texas, but when in 1879 the mate for the Norwegian bark Livingston was prosecuted in the courts of Philadelphia County for an assault and battery committed on board the ship while lying in the port of Philadelphia, it was held that there was nothing in the treaty which deprived the local courts of jurisdiction. (Commonwealth vs. Luckness, 14 Phila. (Pa.), 363.) Representations were made through diplomatic channels to the State Department, and on July 30, 1880, Mr. Evarts, Secretary of State, wrote to Count Lewenhaupt, the Swedish and Norwegian minister, as follows: I have the honor to state that I have given the matter careful consideration in connection with the views and suggestion of your note and the provisions of the thirteenth article of the treaty of 1827 between the United States and Sweden and Norway. The stipulations contained in the last clause of that article . . . are those under which it is contended by you that jurisdiction is conferred on the consular officers, not only in regard to such differences of a civil nature growing out of the contract of engagement of the seamen, but also as to disposing of controversies resulting from personal violence involving offense for which the party may be held amenable under the local criminal law. This Government does not view the article in question as susceptible of such broad interpretation. The jurisdiction conferred upon the consuls is conceived to be limited to their right to sit as judges or abitrators in such differences as may arise between captains and crews of the vessels, where such differences do not involve on the part of the captain or crew a disturbance of the order or tranquillity of the country . When, however, a complaint is made to a local magistrate, either by the captain or one or more of the crew of the vessel, involving the disturbance of the orderor tranquillity of the country, it is competent for such magistrate to take cognizance of the matter in furtherance of the local laws, and under such circumstances in the United States it becomes a public duty which the judge or magistrate is not at liberty voluntarily to forego. In all such cases it must necessarily be left to the local judicial authorities whether the procedure shall take place in the United States or in Sweden to determine if in fact there had been such disturbance of the local order and tranquillity, and if the complaint is supported by such proof as results in the conviction of the party accused, to visit upon the offenders such punishment as may be defined against the offense by the municipal law of the place." (Moore, Int. Law Dig., vol. 2, p. 315.) The treaty does not therefore deprive the local courts of jurisdiction over offenses committed on board a merchant vessel by one member of the crew against another which amount to a disturbance of the order or tranquillity of the country, and a fair and reasonable construction of the language requires un to hold that any violation of criminal laws disturbs the order or traquillity of the country. The offense with which the appellant is charged had nothing to so with any difference between the captain and the crew. It was a violation by the master of the criminal law of the country into whose port he came. We thus find that neither by reason of the nationality of the vessel, the place of the commission of the offense, or the prohibitions of any treaty or general principle of public law, are the court of the Philippine Islands deprived of jurisdiction over the offense charged in the information in this case. It is further contended that the complaint is defective because it does not allege that the animals were disembarked at the port of Manila, an allegation which it is claimed is essential to the jurisdiction of the court sitting at that port. To hold with the appellant upon this issue would be to construe the language of the complaint very strictly against the Government. The disembarkation of the animals is not necessary in order to constitute the completed offense, and a reasonable construction of the language of the statute confers jurisdiction upon the court sitting at the port into which the animals are bought. They are then within the territorial jurisdiction of the court, and the mere fact of their disembarkation is immaterial so far as jurisdiction is concerned. This might be different if the disembarkation of the animals constituted a constitutional element in the offense, but it does not. It is also contended that the information is insufficient because it fails to allege that the defendant knowingly and willfullyfailed to provide suitable means for securing said animals while in transit, so as to avoid cruelty and unnecessary suffering. The allegation of the complaint that the act was committed willfully includes the allegation that it was committed knowingly. As said

in Woodhouse vs. Rio Grande R.R. Company (67 Texas, 416), "the word 'willfully' carries the idea, when used in connection with an act forbidden by law, that the act must be done knowingly or intentionally; that, with knowledge, the will consented to, designed, and directed the act." So in Wong vs. City of Astoria (13 Oregon, 538), it was said: "The first one is that the complaint did not show, in the words of the ordinance, that the appellant 'knowingly' did the act complained of. This point, I think, was fully answered by the respondent's counsel that the words 'willfully' and 'knowingly' conveyed the same meaning. To 'willfully' do an act implies that it was done by design done for a certain purpose; and I think that it would necessarily follow that it was 'knowingly' done." To the same effect is Johnson vs. The People (94 Ill., 505), which seems to be on all fours with the present case. The evidence shows not only that the defendant's acts were knowingly done, but his defense rests upon the assertion that "according to his experience, the system of carrying cattle loose upon the decks and in the hold is preferable and more secure to the life and comfort of the animals." It was conclusively proven that what was done was done knowingly and intentionally. In charging an offense under section 6 of General Orders, No. 58, paragraph 3, it is only necessary to state the act or omission complained of as constituting a crime or public offense in ordinary and concise language, without repitition. It need not necessarily be in the words of the statute , but it must be in such form as to enable a person of common understanding to know what is intended and the court to pronounce judgment according to right. A complaint which complies with this requirement is good. (U.S. vs. Sarabia, 4 Phil. Rep., 556.) The Act, which is in the English language, impose upon the master of a vessel the duty to "provide suitable means for securing such animals while in transit, so as to avoid all cruelty and unnecessary suffering to the animals." The allegation of the complaint as it reads in English is that the defendant willfully, unlawfully, and wrongfully carried the cattle "without providing suitable means for securing said animals while in transit, so as to avoid cruelty and unnecessary suffering to the said animals in this . . . that by reason of the aforesaid neglect and failure of the accused to provide suitable means for securing said animals were cruelty torn, and many of said animals were tossed about upon the decks and hold of said vessels, and cruelty wounded, bruised, and killed." The appellant contends that the language of the Spanish text of the information does not charge him with failure to provide "sufficient" and "adequate" means. The words used are "medios suficientes" and "medios adecuados." In view of the fact that the original complaint was prepared in English, and that the word "suitable" is translatable by the words " adecuado," "suficiente," and "conveniente," according to the context and circumstances, we determine this point against the appellant, particularly in view of the fact that the objection was not made in the court below, and that the evidence clearly shows a failure to provide "suitable means for the protection of the animals." 2. The appellant's arguments against the constitutionality of Act No. 55 and the amendment thereto seems to rest upon a fundamentally erroneous conception of the constitutional law of these Islands. The statute penalizes acts and ommissions incidental to the transportation of live stock between foreign ports and ports of the Philippine Islands, and had a similar statute regulating commerce with its ports been enacted by the legislature of one of the States of the Union, it would doubtless have been in violation of Article I, section 3, of the Constitution of the United States. (Stubbs vs. People (Colo.), 11 L. R. A., N. S., 1071.) But the Philippine Islands is not a State, and its relation to the United States is controlled by constitutional principles different from those which apply to States of the Union. The importance of the question thus presented requires a statement of the principles which govern those relations, and consideration of the nature and extent of the legislative power of the Philippine Commission and the Legislature of the Philippines. After much discussion and considerable diversity of opinion certain applicable constitutional doctrines are established. The Constitution confers upon the United States the express power to make war and treaties, and it has the power possessed by all nations to acquire territory by conquest or treaty. Territory thus acquired belongs to the United States, and to guard against the possibility of the power of Congress to provide for its government being questioned, the framers of the Constitution provided in express terms that Congress should have the power "to dispose of and make all needful rules and regulations respecting territory and other property belonging to the United States." (Art. IV, sec. 3, par. 3.) Upon the acquisition of the territory by the United States, and until it is formally incorporated into the Union, the duty of providing a government therefor devolves upon Congress. It may govern the territory by its direct acts, or it may create a local government, and delegate thereto the ordinary powers required for local government. (Binns vs. U. S., 194 U. S., 486.) This has been the usual procedure. Congress has provided such governments for territories which were within the Union, and for newly acquired territory not yet incorporated therein. It has been customary to organize a government with the ordinary separation of powers into executive, legislative, and judicial, and to prescribe in an organic act certain general conditions in accordance with which the local government should act. The organic act thus became the constitution of the government of the territory which had not been formally incorporated into the Union, and the validity of legislation enacted by the local legislature was determined by its conformity with the requirements of such organic act. (National Bank vs.Yankton, 11 Otto (U. S.), 129.) To the legislative body of the local government Congress has delegated that portion of legislative power which in its wisdom it deemed necessary for the government of the territory, reserving, however, the right to annul the action of the local legislature and itself legislate directly for the territory. This power has been exercised during the entire period of the history of the United States. The right of Congress to delegate such legislative power can no longer be seriously questioned. (Dorr vs. U. S., 195 U. S., 138; U. S. vs. Heinszen, 206 U. S., 370, 385.)

The Constitution of the United States does not by its own force operate within such territory, although the liberality of Congress in legislating the Constitution into contiguous territory tended to create an impression upon the minds of many people that it went there by its own force. (Downes vs. Bidwell, 182 U. S., 289.) In legislating with reference to this territory, the power of Congress is limited only by those prohibitions of the Constitution which go to the very root of its power to act at all, irrespective of time or place. In all other respects it is plenary. (De Lima vs. Bidwell, 182 U. S., 1; Downes vs.Bidwell, 182 U. S., 244; Hawaii vs. Mankichi, 190 U. S., 197; Dorr vs. U. S., 195 U. S., 138; Rassmussen vs. U. S., 197 U. S., 516.) This power has been exercised by Congress throughout the whole history of the United States, and legislation founded on the theory was enacted long prior to the acquisition of the present Insular possessions. Section 1891 of the Revised Statutes of 1878 provides that "The Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within all the organized territories, and in every Territory hereafter organized, as elsewhere within the United States." When Congress organized a civil government for the Philippines, it expressly provided that this section of the Revised Statutes should not apply to the Philippine Islands. (Sec. 1, Act of 1902.) In providing for the government of the territory which was acquired by the United States as a result of the war with Spain, the executive and legislative authorities have consistently proceeded in conformity with the principles above state. The city of Manila was surrendered to the United States on August 13, 1898, and the military commander was directed to hold the city, bay, and harbor, pending the conclusion of a peace which should determine the control, disposition, and government of the Islands. The duty then devolved upon the American authorities to preserve peace and protect person and property within the occupied territory. Provision therefor was made by proper orders, and on August 26 General Merritt assumed the duties of military governor. The treaty of peace was signed December 10, 1898. On the 22d of December, 1898, the President announced that the destruction of the Spanish fleet and the surrender of the city had practically effected the conquest of the Philippine Islands and the suspension of the Spanish sovereignty therein, and that by the treaty of peace the future control, disposition, and government of the Islands had been ceded to the United States. During the periods of strict military occupation, before the treaty of peace was ratified, and the interim thereafter, until Congress acted (Santiago vs. Noueral, 214 U.S., 260), the territory was governed under the military authority of the President as commander in chief. Long before Congress took any action, the President organized a civil government which, however, had its legal justification, like the purely military government which it gradually superseded, in the war power. The military power of the President embraced legislative, executive personally, or through such military or civil agents as he chose to select. As stated by Secretary Root in his report for 1901 The military power in exercise in a territory under military occupation includes executive, legislative, and judicial authority. It not infrequently happens that in a single order of a military commander can be found the exercise of all three of these different powers the exercise of the legislative powers by provisions prescribing a rule of action; of judicial power by determination of right; and the executive power by the enforcement of the rules prescribed and the rights determined. President McKinley desired to transform military into civil government as rapidly as conditions would permit. After full investigation, the organization of civil government was initiated by the appointment of a commission to which civil authority was to be gradually transferred. On September 1, 1900, the authority to exercise, subject to the approval of the President. "that part of the military power of the President in the Philippine Islands which is legislative in its character" was transferred from the military government to the Commission, to be exercised under such rules and regulations as should be prescribed by the Secretary of War, until such time as complete civil government should be established, or congress otherwise provided. The legislative power thus conferred upon the Commission was declared to include "the making of rules and orders having the effect of law for the raising of revenue by taxes, customs duties, and imposts; the appropriation and expenditure of public funds of the Islands; the establishment of an educational system to secure an efficient civil service; the organization and establishment of courts; the organization and establishment of municipal and departmental government, and all other matters of a civil nature which the military governor is now competent to provide by rules or orders of a legislative character." This grant of legislative power to the Commission was to be exercised in conformity with certain declared general principles, and subject to certain specific restrictions for the protection of individual rights. The Commission were to bear in mind that the government to be instituted was "not for our satisfaction or for the expression of our theoretical views, but for the happiness, peace, and prosperity of the people of the Philippine Island, and the measures adopted should be made to conforms to their customs, their habits, and even their prejudices, to the fullest extent consistent with the accomplishment of the indispensable requisites of just and effective government." The specific restrictions upon legislative power were found in the declarations that "no person shall be deprived of life, liberty, or property without due process of law; that private property shall not be taken for public use without just compensation; that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense; that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted; that no person shall be put twice in jeopardy for the same offense or be compelled in any criminal case to be a witness against himself; that the right to be secure against unreasonable searches and seizures shall not be violated; that neither slavery nor involuntary servitude shall exist except as a punishment for crime; that no bill of attainder or ex post facto law shall be passed; that no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the Government for a redress of grievances; that no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed."

To prevent any question as to the legality of these proceedings being raised, the Spooner amendment to the Army Appropriation Bill passed March 2, 1901, provided that "all military, civil, and judicial powers necessary to govern the Philippine Islands . . . shall until otherwise provided by Congress be vested in such person and persons, and shall be exercised in such manner, as the President of the United States shall direct, for the establishment of civil government, and for maintaining and protecting the inhabitants of said Islands in the free enjoyment of their liberty, property, and religion." Thereafter, on July 4, 1901, the authority, which had been exercised previously by the military governor, was transferred to that official. The government thus created by virtue of the authority of the President as Commander in Chief of the Army and Navy continued to administer the affairs of the Islands under the direction of the President until by the Act of July 1, 1902, Congress assumed control of the situation by the enactment of a law which, in connection with the instructions of April 7, 1900, constitutes the organic law of the Philippine Islands. The Act of July 1, 1902, made no substancial changes in the form of government which the President had erected. Congress adopted the system which was in operation, and approved the action of the President in organizing the government. Substantially all the limitations which had been imposed on the legislative power by the President's instructions were included in the law, Congress thus extending to the Islands by legislative act nor the Constitution, but all its provisions for the protection of the rights and privileges of individuals which were appropriate under the conditions. The action of the President in creating the Commission with designated powers of government, in creating the office of the Governor-General and Vice-GovernorGeneral, and through the Commission establishing certain executive departments, was expressly approved and ratified. Subsequently the action of the President in imposing a tariff before and after the ratification of the treaty of peace was also ratified and approved by Congress. (Act of March 8, 1902; Act of July 1, 1902; U.S. vs. Heinszen, 206 U.S., 370; Lincoln vs. U.S., 197 U.S., 419.) Until otherwise provided by law the Islands were to continue to be governed "as thereby and herein provided." In the future the enacting clause of all statutes should read "By authority of the United States" instead of "By the authority of the President." In the course of time the legislative authority of the Commission in all parts of the Islands not inhabited by Moros or non-Christian tribes was to be transferred to a legislature consisting of two houses the Philippine Commission and the Philippine Assembly. The government of the Islands was thus assumed by Congress under its power to govern newly acquired territory not incorporated into the United States. This Government of the Philippine Islands is not a State or a Territory, although its form and organization somewhat resembles that of both. It stands outside of the constitutional relation which unites the States and Territories into the Union. The authority for its creation and maintenance is derived from the Constitution of the United States, which, however, operates on the President and Congress, and not directly on the Philippine Government. It is the creation of the United States, acting through the President and Congress, both deriving power from the same source, but from different parts thereof. For its powers and the limitations thereon the Government of the Philippines looked to the orders of the President before Congress acted and the Acts of Congress after it assumed control. Its organic laws are derived from the formally and legally expressed will of the President and Congress, instead of the popular sovereign constituency which lies upon any subject relating to the Philippines is primarily in Congress, and when it exercise such power its act is from the viewpoint of the Philippines the legal equivalent of an amendment of a constitution in the United States. Within the limits of its authority the Government of the Philippines is a complete governmental organism with executive, legislative, and judicial departments exercising the functions commonly assigned to such departments. The separation of powers is as complete as in most governments. In neither Federal nor State governments is this separation such as is implied in the abstract statement of the doctrine. For instance, in the Federal Government the Senate exercises executive powers, and the President to some extent controls legislation through the veto power. In a State the veto power enables him to exercise much control over legislation. The Governor-General, the head of the executive department in the Philippine Government, is a member of the Philippine Commission, but as executive he has no veto power. The President and Congress framed the government on the model with which Americans are familiar, and which has proven best adapted for the advancement of the public interests and the protection of individual rights and priviliges. In instituting this form of government of intention must have been to adopt the general constitutional doctrined which are inherent in the system. Hence, under it the Legislature must enact laws subject to the limitations of the organic laws, as Congress must act under the national Constitution, and the States under the national and state constitutions. The executive must execute such laws as are constitutionally enacted. The judiciary, as in all governments operating under written constitutions, must determine the validity of legislative enactments, as well as the legality of all private and official acts. In performing these functions it acts with the same independence as the Federal and State judiciaries in the United States. Under no other constitutional theory could there be that government of laws and not of men which is essential for the protection of rights under a free and orderly government. Such being the constitutional theory of the Government of the Philippine Islands, it is apparent that the courts must consider the question of the validity of an act of the Philippine Commission or the Philippine Legislature, as a State court considers an act of the State legislature. The Federal Government exercises such powers only as are expressly or impliedly granted to it by the Constitution of the United States, while the States exercise all powers which have not been granted to the central government. The former operates under grants, the latter subject to restrictions. The validity of an Act of Congress depends upon whether the Constitution of the United States contains a grant of express or implied authority to enact it. An act of a State legislature is valid unless the Federal or State constitution expressly or impliedly prohibits its enaction. An Act of the legislative authority of the Philippines Government which has not been expressly disapproved by Congress is valid unless its subjectmatter has been covered by congressional legislation, or its enactment forbidden by some provision of the organic laws.

The legislative power of the Government of the Philippines is granted in general terms subject to specific limitations. The general grant is not alone of power to legislate on certain subjects, but to exercise the legislative power subject to the restrictions stated. It is true that specific authority is conferred upon the Philippine Government relative to certain subjects of legislation, and that Congress has itself legislated upon certain other subjects. These, however, should be viewed simply as enactments on matters wherein Congress was fully informed and ready to act, and not as implying any restriction upon the local legislative authority in other matters. (See Opinion of Atty. Gen. of U. S., April 16, 1908.) The fact that Congress reserved the power to annul specific acts of legislation by the Government of the Philippine tends strongly to confirm the view that for purposes of construction the Government of the Philippines should be regarded as one of general instead of enumerated legislative powers. The situation was unusual. The new government was to operate far from the source of its authority. To relieve Congress from the necessity of legislating with reference to details, it was thought better to grant general legislative power to the new government, subject to broad and easily understood prohibitions, and reserve to Congress the power to annul its acts if they met with disapproval. It was therefore provided "that all laws passed by the Government of the Philippine Islands shall be reported to Congress, which hereby reserves the power and authority to annul the same." (Act of Congress, July 1, 1902, sec. 86.) This provision does not suspend the acts of the Legislature of the Philippines until approved by Congress, or when approved, expressly or by acquiescence, make them the laws of Congress. They are valid acts of the Government of the Philippine Islands until annulled. (Miners Bank vs.Iowa, 12 How. (U. S.), 1.) In order to determine the validity of Act No. 55 we must then ascertain whether the Legislature has been expressly or implication forbidden to enact it. Section 3, Article IV, of the Constitution of the United States operated only upon the States of the Union. It has no application to the Government of the Philippine Islands. The power to regulate foreign commerce is vested in Congress, and by virtue of its power to govern the territory belonging to the United States, it may regulate foreign commerce with such territory. It may do this directly, or indirectly through a legislative body created by it, to which its power in this respect if delegate. Congress has by direct legislation determined the duties which shall be paid upon goods imported into the Philippines, and it has expressly authorized the Government of the Philippines to provide for the needs of commerce by improving harbors and navigable waters. A few other specific provisions relating to foreign commerce may be found in the Acts of Congress, but its general regulation is left to the Government of the Philippines, subject to the reserved power of Congress to annul such legislation as does not meet with its approval. The express limitations upon the power of the Commission and Legislature to legislate do not affect the authority with respect to the regulation of commerce with foreign countries. Act No. 55 was enacted before Congress took over the control of the Islands, and this act was amended by Act No. 275 after the Spooner amendment of March 2, 1901, was passed. The military government, and the civil government instituted by the President, had the power, whether it be called legislative or administrative, to regulate commerce between foreign nations and the ports of the territory. (Cross vs. Harrison, 16 How. (U.S.), 164, 190; Hamilton vs. Dillin, 21 Wall. (U.S.), 73, 87.) This Act has remained in force since its enactment without annulment or other action by Congress, and must be presumed to have met with its approval. We are therefore satisfied that the Commission had, and the Legislature now has, full constitutional power to enact laws for the regulation of commerce between foreign countries and the ports of the Philippine Islands, and that Act No. 55, as amended by Act No. 275, is valid. 3. Whether a certain method of handling cattle is suitable within the meaning of the Act can not be left to the judgment of the master of the ship. It is a question which must be determined by the court from the evidence. On December 2, 1908, the defendant Bull brought into and disembarked in the port and city of Manila certain cattle, which came from the port of Ampieng, Formosa, without providing suitable means for securing said animals while in transit, so as to avoid cruelty and unnecessary suffering to said animals, contrary to the provisions of section 1 of Act No. 55, as amended by section 1 of Act No. 275. The trial court found the following facts, all of which are fully sustained by the evidence: That the defendant, H. N. Bull, as captain and master of the Norwegian steamer known as the Standard, for a period of six months or thereabouts prior to the 2d day of December, 1908, was engaged in the transportation of cattle and carabaos from Chines and Japanese ports to and into the city of Manila, Philippine Islands. That on the 2d day of December, 1908, the defendant, as such master and captain as aforesaid, brought into the city of Manila, aboard said ship, a large number of cattle, which ship was anchored, under the directions of the said defendant, behind the breakwaters in front of the city of Manila, in Manila Bay, and within the jurisdiction of this court; and that fifteen of said cattle then and there had broken legs and three others of said cattle were dead, having broken legs; and also that said cattle were transported and carried upon said ship as aforesaid by the defendant, upon the deck and in the hold of said ship, without suitable precaution and care for the transportation of said animals, and to avoid danger and risk to their lives and security; and further that said cattle were so transported abroad said ship by the defendant and brought into the said bay, and into the city of Manila, without any provisions being made whatever upon said decks of said ship and in the hold thereof to maintain said cattle in a suitable condition and position for such transportation. That a suitable and practicable manner in which to transport cattle abroad steamship coming into Manila Bay and unloading in the city of Manila is by way of individual stalls for such cattle, providing partitions between the cattle and supports at the front sides, and rear thereof, and cross-cleats upon the floor on which they stand and are transported, of that in case of storms, which are common in this community at sea, such cattle may be able to stand without slipping and pitching and falling, individually or collectively, and to avoid the production of panics and hazard to the animals on account or cattle were transported in this case. Captain Summerville of the steamship Taming, a very intelligent and experienced seaman, has testified, as a witness in behalf of the Government, and stated positively that since the introduction in the ships with which he is acquainted of the stall system for the transportation of animals and cattle he has suffered no loss whatever during the last

year. The defendant has testified, as a witness in his own behalf, that according to his experience the system of carrying cattle loose upon the decks and in the hold is preferable and more secure to the life and comfort of the animals, but this theory of the case is not maintainable, either by the proofs or common reason. It can not be urged with logic that, for instance, three hundred cattle supports for the feet and without stalls or any other protection for them individually can safely and suitably carried in times of storm upon the decks and in the holds of ships; such a theory is against the law of nature. One animal falling or pitching, if he is untied or unprotected, might produce a serious panic and the wounding of half the animals upon the ship if transported in the manner found in this case. The defendant was found guilty, and sentenced to pay a fine of two hundred and fifty pesos, with subsidiary imprisonment in case of insolvency, and to pay the costs. The sentence and judgment is affirmed. So ordered. .R. No. L-18924 October 19, 1922 PHILIPPINE ISLANDS, plaintiff-appellant,

THE PEOPLE OF THE vs. WONG CHENG (alias WONG CHUN), defendant-appellee. Attorney-General Eduardo Gutierrez Repide for appellee. ROMUALDEZ, J.: Villa-Real

for

appellant.

In this appeal the Attorney-General urges the revocation of the order of the Court of First Instance of Manila, sustaining the demurrer presented by the defendant to the information that initiated this case and in which the appellee is accused of having illegally smoked opium, aboard the merchant vessel Changsa of English nationality while said vessel was anchored in Manila Bay two and a half miles from the shores of the city. The demurrer alleged lack of jurisdiction on the part of the lower court, which so held and dismissed the case. The question that presents itself for our consideration is whether such ruling is erroneous or not; and it will or will not be erroneous according as said court has or has no jurisdiction over said offense. The point at issue is whether the courts of the Philippines have jurisdiction over crime, like the one herein involved, committed aboard merchant vessels anchored in our jurisdiction waters. 1awph!l.net There are two fundamental rules on this particular matter in connection with International Law; to wit, the French rule, according to which crimes committed aboard a foreign merchant vessels should not be prosecuted in the courts of the country within whose territorial jurisdiction they were committed, unless their commission affects the peace and security of the territory; and the English rule, based on the territorial principle and followed in the United States, according to which, crimes perpetrated under such circumstances are in general triable in the courts of the country within territory they were committed. Of this two rules, it is the last one that obtains in this jurisdiction, because at present the theories and jurisprudence prevailing in the United States on this matter are authority in the Philippines which is now a territory of the United States. In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.], 116), Chief Justice Marshall said: . . . When merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. . . . In United States vs. Bull (15 Phil., 7), this court held: . . . No court of the Philippine Islands had jurisdiction over an offense or crime committed on the high seas or within the territorial waters of any other country, but when she came within three miles of a line drawn from the headlands, which embrace the entrance to Manila Bay, she was within territorial waters, and a new set of principles became applicable. (Wheaton, International Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit Int., secs. 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the jurisdiction of the territorial sovereign subject to such limitations as have been conceded by that sovereignty through the proper political agency. . . . It is true that in certain cases the comity of nations is observed, as in Mali and Wildenhus vs. Keeper of the Common Jail (120 U.., 1), wherein it was said that: . . . The principle which governs the whole matter is this: Disorder which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may

be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction. It may not be easy at all times to determine which of the two jurisdictions a particular act of disorder belongs. Much will undoubtedly depend on the attending circumstances of the particular case, but all must concede that felonious homicide is a subject for the local jurisdiction, and that if the proper authorities are proceeding with the case in the regular way the consul has no right to interfere to prevent it. Hence in United States vs. Look Chaw (18 Phil., 573), this court held that: Although the mere possession of an article of prohibited use in the Philippine Islands, aboard a foreign vessel in transit in any local port, does not, as a general rule, constitute a crime triable by the courts of the Islands, such vessels being considered as an extension of its own nationality, the same rule does not apply when the article, the use of which is prohibited in the Islands, is landed from the vessels upon Philippine soil; in such a case an open violation of the laws of the land is committed with respect to which, as it is a violation of the penal law in force at the place of the commission of the crime, no court other than that established in the said place has jurisdiction of the offense, in the absence of an agreement under an international treaty. As to whether the United States has ever consented by treaty or otherwise to renouncing such jurisdiction or a part thereof, we find nothing to this effect so far as England is concerned, to which nation the ship where the crime in question was committed belongs. Besides, in his work "Treaties, Conventions, etc.," volume 1, page 625, Malloy says the following: There shall be between the territories of the United States of America, and all the territories of His Britanic Majesty in Europe, a reciprocal liberty of commerce. The inhabitants of the two countries, respectively, shall have liberty freely and securely to come with their ships and cargoes to all such places, ports and rivers, in the territories aforesaid, to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of the said territories, respectively; also to hire and occupy houses and warehouses for the purposes of their commerce; and, generally, the merchants and traders of each nation respectively shall enjoy the most complete protection and security for their commerce, but subject always to the laws and statutes of the two countries, respectively. (Art. 1, Commerce and Navigation Convention.) We have seen that the mere possession of opium aboard a foreign vessel in transit was held by this court not triable by or courts, because it being the primary object of our Opium Law to protect the inhabitants of the Philippines against the disastrous effects entailed by the use of this drug, its mere possession in such a ship, without being used in our territory, does not being about in the said territory those effects that our statute contemplates avoiding. Hence such a mere possession is not considered a disturbance of the public order. But to smoke opium within our territorial limits, even though aboard a foreign merchant ship, is certainly a breach of the public order here established, because it causes such drug to produce its pernicious effects within our territory. It seriously contravenes the purpose that our Legislature has in mind in enacting the aforesaid repressive statute. Moreover, as the Attorney-General aptly observes: . . . The idea of a person smoking opium securely on board a foreign vessel at anchor in the port of Manila in open defiance of the local authorities, who are impotent to lay hands on him, is simply subversive of public order. It requires no unusual stretch of the imagination to conceive that a foreign ship may come into the port of Manila and allow or solicit Chinese residents to smoke opium on board. The order appealed from is revoked and the cause ordered remanded to the court of origin for further proceedings in accordance with law, without special findings as to costs. So ordered. G.R. No. L-5889 July 12, 1911 STATES, plaintiff-appellee,

THE UNITED vs. LOOK CHAW (alias LUK CHIU), defendant-appellant. Thos. D. Attorney-General Villamor for appellee. ARELLANO, C.J.: Aitken for

appellant.

This case is a separate part of Case No. 5887 and bears No. 5889 on the general docket of this court, and No. 377 on the docket of the Court of First Instance of Cebu. The complaint in this case states:

That, on or about the 18th of August, 1909, within the boundaries of the municipality of Cebu of this province and judicial district, the said Look Chaw (alias Luk Chiu) did, without having obtained authorization from the Collector of Internal Revenue and without being authorized in any manner and traffic in the same. C.J. Milliron, an internal-revenue agent, testified that Vicente Base took to the governor of Cebu a can of opium containing 200 grammes of the said drug, in order to show him that the accused had sold opium to Base, and the governor called the witness in order that he might take part in this case. After the accused was arrested, he confessed before the witness and the provincial fiscal that he had sold to Vicente Base thirty cans of opium on the 15th of August, 1909, but that he had received the price thereof, and that the money which was found in a box of his on board the British steamship Erroll, P1,500 in amount, was obtained in Manila and was seized by the captain of the vessel. According to the accused, he had purchased in Hongkong 137 cans of opium for the purpose of introducing it as contraband into Mexico, the destination of the vessel, but that as the latter changed its route touching first at Manila, the opium arrived at Cebu. Vicente Base testified that he had negotiated with the accused with respect to the sale of the three sacks of opium which were seized while in the latter's possession an were the subject matter of the previous cause; that these three sacks were not taken ashore, because the accused would not permit this to be done without previous delivery of the whole price of P1,000, of which witness had only paid P533; that he therefore only took one can from one of the said sacks. The Court of First Instance of Cebu sentenced the accused to one year's imprisonment and the payment of a fine of P2,000, with additional subsidiary imprisonment in case of insolvency, not to exceed one-third of the principal penalty, and to the payment of the costs of the trial. It was ordered in the judgment that the exhibits connected with the case should be confiscated, and that, in case of an appeal, and even after the sentence had been served, the defendant should not be released from custody, but delivered to the customs authorities for the purpose of the enforcement of the existing immigration laws. The defendant appealed and has alleged before this court that he can not punished in accordance with section 15 of Act No. 1761, under which the complaint was drawn. This said section 15 reads thus: (a) No person shall import, cook, or prepare opium, or engage in the business of purchasing or selling opium or of dealing or trafficking therein, unless he shall first have secured from the Collector of Internal Revenue a license to transact such business and shall have paid the license tax prescribed by this Act. . . . To make an isolated sale, says the appellant, is not to engage in the business of selling. To negotiate the sale of opium does not mean clandestinely to sell opium once. In our opinion, the act defined in section 15 is distinct from that penalized in section 5; the act referred to in the latter is any act of sale, while that concerned in the former relates to the business of selling, in an habitual, professional manner, as one of an undertaking or occupation, without license. SEC. 5. (a) It shall be unlawful to sell, transfer, give, or deliver opium to any person except to a duly licensed and practicing physician, pharmacist, or second-class pharmacist, or a duly licensed dispensator of opium, or duly registered confirmed user of opium in a licensed opium dispensary for consumption therein only, and in accordance with the provisions of this Act: . . . (b) Any person violating the provisions of the preceding subsection shall be punished by a fine not exceeding one thousand pesos, or by imprisonment for a period not exceeding one year, or both such fine and imprisonment, in the discretion of the court: . . . The crime concerned in this case, according to this section 5, is compromised within the language of the complaint which charges the act of selling opium without the authorization of the Collector of Internal Revenue. The other ground of the appeal is that the confession of the accused were taken into account for the purpose of his conviction. The trial court pronounced its sentence after considering that "sufficient proof has been furnished by the evidence,' and the evidence did not consist solely in the confession that the accused, on the day and at the place mentioned in the complaint, contracted with Vicente Base for the sale of the opium, the subject matter of the present prosecution; and as this finding does not appear to be erroneous nor contrary to the conclusions reached from the evidence, it is accepted by this court in order that thereby the judgment appealed from may be dully affirmed, as we do affirm the same. This disposes of the appeal; but, in the opinion of this court, the defense of double jeopardy alleged by the accused in first instance, with exception to the order disallowing it, can not but be taken into consideration, although in this instance, on appeal, that defense was not reproduced with the allegation that its disallowance was an error committed by the lower court in its judgment. This point appears to involve a question of jurisdiction.

Before separating the two causes, as related at the beginning of this decision, there was but one single complaint and there would have been only one trial for the possession of opium and for the sale of opium. But the defendant's counsel set up a demurrer, arguing that the complaint was defective inasmuch as it charged two distinct crimes, for according to the defense, it was alleged to be one crime to possess opium and another different crime to sell opium; and the court deferred to this pretension and ordered the filing of two complaints, one for the possession of opium and another for the sale of opium; that for the possession of opium was the one first tried by the lower court. In answering the second complaint for the sale of opium, the defendant alleged that he had already been in jeopardy. The defendant was convicted yesterday," said his attorney, "for the violation of law committed, of possessing opium, and has already been sentenced by this court to five year's imprisonment and in addition to pay a fine of ten thousand pesos. According to the principles of penal law, when a crime has been committed which is necessary in order to commit another, the delinquent, of course, can not be punished for the two crimes, but must suffer for the crime for which the greater penalty was provided. The court rejected this allegation: first, because the prosecution of two crimes instead of one was brought about by the defense itself; and second, because, in the opinion of the trial judge, if the defendant had first been convicted for selling opium, he certainly would have been in jeopardy in the cause prosecuted for possessing opium, for the reason that really one can not sell opium without possessing it, while, if the terms are inverted, the same result does not follow, because one may posses opium without selling it, and consequently in the present cause the allegation of double jeopardy is an admissible. True it is, we assert, that it is one crime to possess opium, punished by section 31 of the Act, and another, to sell opium, penalized by section 5 of the same Act before cited. And it is also true that when one single act constitutes two or more crimes, or when one of them is a necessary means for the commission of the other, only the penalty corresponding to the more serious crime shall be imposed, in its maximum degree, and thus, he who smokes opium in a pipe, by one single act lays himself liable to three penalties of the law, one of them, merely for the fact of possessing opium, another, for the mere possession of a pipe in which opium is smoked, and the other, for the act of smoking opium; but the penalties corresponding to these three crimes ought not to be imposed upon the defendant in this case, and only the penalty for the most serious of these crimes. But the illegal possession of 137 cans of opium and the illegal sale of 30 cans of opium, which are two acts confessed by the accused, are not one act which constitutes two crimes, nor a crime which is a necessary means for the commission of another. They are two isolated acts, punishable, each of them, in themselves. Only in the event where all the amount of the opium possessed and seized be in its totality the same as that which was possessed with the sole purpose of being delivered as the matter or subject of a sale previously agree upon, could it be said, in the opinion of this court, that the possession of the opium was a necessary means to effect the delivery by reason of the sale, and that the sale agreed upon was the sole reason for the possession of the opium seized. The possession of the quantity contained in the pipe can not be considered as a different crime from that of smoking opium in a pipe, nor the possession of the pipe, as a crime different from that of smoking opium in a pipe. But if the person surprised in smoking opium in a pipe was also surprised in the possession of the thirty cans sold by the accused, it could not properly be inferred that the possession of these thirty cans, which in itself is a crime, was a necessary means for the commission of the other crime of smoking opium in a pipe, and that the person in whose possession the thirty cans were seized, possessed the same solely and exclusively for the purpose of smoking opium in a pipe. It might very well have been that he had acquired the drug for the purpose of inhaling, injecting, chewing, swallowing, or other uses, and that only by chance did it occur to him to try to smoke it in a pipe, on the very occasion when he was surprised, this being the evident fact of the commission of the crime which can not, in its essence, include the existence of thirty cans, not then contained in the pipe, each can certainly being susceptible of other various uses, every one of which might by its nature constitute a different crime. We consider this doctrine equally applicable to crimes which are evils by their very nature, as well as to those which are merely malum quia prohibitum; because it not only aims at a more or less strict application of a penal precept which, undoubtedly, in the practice of this court, usually tends toward the lesser severity and, occasionally, the greatest benignity when the second class, or conventional crimes, are concerned, but also because that doctrine is the logical result of the process of the intelligence in the derivation of consequences from the principles constitute of the nature of things. Thus it is that we find the institution of this cause, and its separation from the previous one, to be founded on law and juridical principles, and the judgment appealed from, to be in accordance with right and equity, except with regard to the amount of the penalty, which we reduce, in harmony with the provisions of section 5 aforementioned, to six months' imprisonment and a fine of P1,000 Philippine currency. Therefore, with the understanding that the imprisonment and the fine imposed shall be, respectively, six months and P1,000 Philippine Currency, we affirm, as to all the rest, the judgment appealed from, with the costs of this instance against the appellant. So ordered. G.R. No. 17958 February 27, 1922

THE PEOPLE OF vs. LOL-LO and SARAW, defendants-appellants. Thos. D. Acting Attorney-General Tuason for appellee. MALCOLM, J.:

THE

PHILIPPINE

ISLANDS, plaintiff-appellee,

Aitken

for

appellants.

The days when pirates roamed the seas, when picturesque buccaneers like Captain Avery and Captain Kidd and Bartholomew Roberts gripped the imagination, when grostesque brutes like Blackbeard flourished, seem far away in the pages of history and romance. Nevertheless, the record before us tells a tale of twentieth century piracy in the south seas, but stripped of all touches of chivalry or of generosity, so as to present a horrible case of rapine and near murder. On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta, another Dutch possession. In one of the boats was one individual, a Dutch subject, and in the other boat eleven men, women, and children, likewise subjects of Holland. After a number of days of navigation, at about 7 o'clock in the evening, the second boat arrived between the Islands of Buang and Bukid in the Dutch East Indies. There the boat was surrounded by six vintas manned by twenty-four Moros all armed. The Moros first asked for food, but once on the Dutch boat, too for themselves all of the cargo, attacked some of the men, and brutally violated two of the women by methods too horrible to the described. All of the persons on the Dutch boat, with the exception of the two young women, were again placed on it and holes were made in it, the idea that it would submerge, although as a matter of fact, these people, after eleven days of hardship and privation, were succored violating them, the Moros finally arrived at Maruro, a Dutch possession. Two of the Moro marauder were Lol-lo, who also raped one of the women, and Saraw. At Maruro the two women were able to escape. Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine Islands. There they were arrested and were charged in the Court of First Instance of Sulu with the crime of piracy. A demurrer was interposed by counsel de officio for the Moros, based on the grounds that the offense charged was not within the jurisdiction of the Court of First Instance, nor of any court of the Philippine Islands, and that the facts did not constitute a public offense, under the laws in force in the Philippine Islands. After the demurrer was overruled by the trial judge, trial was had, and a judgment was rendered finding the two defendants guilty and sentencing each of them to life imprisonment ( cadena perpetua), to return together with Kinawalang and Maulanis, defendants in another case, to the offended parties, the thirty-nine sacks of copras which had been robbed, or to indemnify them in the amount of 924 rupees, and to pay a one-half part of the costs. A very learned and exhaustive brief has been filed in this court by the attorney de officio. By a process of elimination, however, certain questions can be quickly disposed of. The proven facts are not disputed. All of the elements of the crime of piracy are present. Piracy is robbery or forcible depredation on the high seas, without lawful authority and done animo furandi, and in the spirit and intention of universal hostility. It cannot be contended with any degree of force as was done in the lover court and as is again done in this court, that the Court of First Instance was without jurisdiction of the case. Pirates are in law hostes humani generis. Piracy is a crime not against any particular state but against all mankind. It may be punished in the competent tribunal of any country where the offender may be found or into which he may be carried. The jurisdiction of piracy unlike all other crimes has no territorial limits. As it is against all so may it be punished by all. Nor does it matter that the crime was committed within the jurisdictional 3-mile limit of a foreign state, "for those limits, though neutral to war, are not neutral to crimes." (U.S. vs. Furlong [1820], 5 Wheat., 184.) The most serious question which is squarely presented to this court for decision for the first time is whether or not the provisions of the Penal Code dealing with the crime of piracy are still in force. Article 153 to 156 of the Penal Code reads as follows: ART. 153. The crime of piracy committed against Spaniards, or the subjects of another nation not at war with Spain, shall be punished with a penalty ranging from cadena temporal to cadena perpetua. If the crime be committed against nonbelligerent subjects of another nation at war with Spain, it shall be punished with the penalty of presidio mayor. ART. 154. Those who commit the crimes referred to in the first paragraph of the next preceding article shall suffer the penalty of cadena perpetua or death, and those who commit the crimes referred to in the second paragraph of the same article, from cadena temporal to cadena perpetua: 1. Whenever they have seized some vessel by boarding or firing upon the same.

2. Whenever the crime is accompanied by murder, homicide, or by any of the physical injuries specified in articles four hundred and fourteen and four hundred and fifteen and in paragraphs one and two of article four hundred and sixteen. 3. Whenever it is accompanied by any of the offenses against chastity specified in Chapter II, Title IX, of this book. 4. Whenever the pirates have abandoned any persons without means of saving themselves. 5. In every case, the captain or skipper of the pirates. ART. 155. With respect to the provisions of this title, as well as all others of this code, when Spain is mentioned it shall be understood as including any part of the national territory. ART. 156. For the purpose of applying the provisions of this code, every person, who, according to the Constitution of the Monarchy, has the status of a Spaniard shall be considered as such. The general rules of public law recognized and acted on by the United States relating to the effect of a transfer of territory from another State to the United States are well-known. The political law of the former sovereignty is necessarily changed. The municipal law in so far as it is consistent with the Constitution, the laws of the United States, or the characteristics and institutions of the government, remains in force. As a corollary to the main rules, laws subsisting at the time of transfer, designed to secure good order and peace in the community, which are strictly of a municipal character, continue until by direct action of the new government they are altered or repealed. (Chicago, Rock Islands, etc., R. Co. vs. McGlinn [1885], 114 U.S., 542.) These principles of the public law were given specific application to the Philippines by the Instructions of President McKinley of May 19, 1898, to General Wesley Meritt, the Commanding General of the Army of Occupation in the Philippines, when he said: Though the powers of the military occupant are absolute and supreme, and immediately operate upon the political condition of the inhabitants, the municipal laws of the conquered territory, such as affect private rights of person and property, and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent; and practice they are not usually abrogated, but are allowed to remain in force, and to be administered by the ordinary tribunals, substantially as they were before the occupations. This enlightened practice is so far as possible, to be adhered to on the present occasion. (Official Gazette, Preliminary Number, Jan. 1, 1903, p. 1. See also General Merritt Proclamation of August 14, 1898.) It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy were meant to include the Philippine Islands. Article 156 of the Penal Code in relation to article 1 of the Constitution of the Spanish Monarchy, would also make the provisions of the Code applicable not only to Spaniards but to Filipinos. The opinion of Grotius was that piracy by the law of nations is the same thing as piracy by the civil law, and he has never been disputed. The specific provisions of the Penal Code are similar in tenor to statutory provisions elsewhere and to the concepts of the public law. This must necessarily be so, considering that the Penal Code finds its inspiration in this respect in the Novelas, the Partidas, and the Novisima Recopilacion. The Constitution of the United States declares that the Congress shall have the power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations. (U.S. Const. Art. I, sec. 8, cl. 10.) The Congress, in putting on the statute books the necessary ancillary legislation, provided that whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life. (U.S. Crim. Code, sec. 290; penalty formerly death: U.S. Rev. Stat., sec. 5368.) The framers of the Constitution and the members of Congress were content to let a definition of piracy rest on its universal conception under the law of nations. It is evident that the provisions of the Penal Code now in force in the Philippines relating to piracy are not inconsistent with the corresponding provisions in force in the United States. By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical construction of articles of the Penal Code, like the articles dealing with the crime of piracy, would be that wherever "Spain" is mentioned, it should be substituted by the words "United States" and wherever "Spaniards" are mentioned, the word should be substituted by the expression "citizens of the United States and citizens of the Philippine Islands." somewhat similar reasoning led this court in the case of United States vs. Smith ([1919], 39 Phil., 533) to give to the word "authority" as found in the Penal Code a limited meaning, which would no longer comprehend all religious, military, and civil officers, but only public officers in the Government of the Philippine Islands. Under the construction above indicated, article 153 of the Penal Code would read as follows:

The crime of piracy committed against citizens of the United States and citizens of the Philippine Islands, or the subjects of another nation not at war with the United States, shall be punished with a penalty ranging from cadena temporal to cadena perpetua. If the crime be committed against nonbelligerent subjects of another nation at war with the United States, it shall be punished with the penalty of presidio mayor. We hold those provisions of the Penal code dealing with the crime of piracy, notably articles 153 and 154, to be still in force in the Philippines. The crime falls under the first paragraph of article 153 of the Penal Code in relation to article 154. There are present at least two of the circumstances named in the last cited article as authorizing either cadena perpetua or death. The crime of piracy was accompanied by (1) an offense against chastity and (2) the abandonment of persons without apparent means of saving themselves. It is, therefore, only necessary for us to determine as to whether the penalty of cadena perpetua or death should be imposed. In this connection, the trial court, finding present the one aggravating circumstance of nocturnity, and compensating the same by the one mitigating circumstance of lack of instruction provided by article 11, as amended, of the Penal Code, sentenced the accused to life imprisonment. At least three aggravating circumstances, that the wrong done in the commission of the crime was deliberately augmented by causing other wrongs not necessary for its commission, that advantage was taken of superior strength, and that means were employed which added ignominy to the natural effects of the act, must also be taken into consideration in fixing the penalty. Considering, therefore, the number and importance of the qualifying and aggravating circumstances here present, which cannot be offset by the sole mitigating circumstance of lack of instruction, and the horrible nature of the crime committed, it becomes our duty to impose capital punishment. The vote upon the sentence is unanimous with regard to the propriety of the imposition of the death penalty upon the defendant and appellant Lo-lo (the accused who raped on of the women), but is not unanimous with regard to the court, Mr. Justice Romualdez, registers his nonconformity. In accordance with provisions of Act No. 2726, it results, therefore, that the judgment of the trial court as to the defendant and appellant Saraw is affirmed, and is reversed as to the defendant and appellant Lol-lo, who is found guilty of the crime of piracy and is sentenced therefor to be hung until dead, at such time and place as shall be fixed by the judge of first instance of the Twenty-sixth Judicial District. The two appellants together with Kinawalang and Maulanis, defendants in another case, shall indemnify jointly and severally the offended parties in the equivalent of 924 rupees, and shall pay a one-half part of the costs of both instances. So ordered. Dolo vs. Culpa G.R. No. L-47722 July 27, 1943 PHILIPPINES, plaintiff-appellee,

THE PEOPLE OF THE vs. ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants. Antonio Z. Oanis in Maximo L. Valenzuela for Acting Solicitor-General Ibaez and Assistant Attorney Torres for appellee. MORAN, J.: his

own appellant

behalf. Galanta.

Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan and corporal of the Philippine Constabulary, respectively, were, after due trial, found guilty by the lower court of homicide through reckless imprudence and were sentenced each to an indeterminate penalty of from one year and six months to two years and two months of prison correccional and to indemnify jointly and severally the heirs of the deceased in the amount of P1,000. Defendants appealed separately from this judgment. In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information received escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive." Captain Monsod accordingly called for his first sergeant and asked that he be given four men. Defendant corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of their sergeant, reported at the office of the Provincial Inspector where they were shown a copy of the above-quoted telegram and a newspaper clipping containing a picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to follow the instruction contained in the telegram. The same instruction was given to the chief of police Oanis who was likewise called by the Provincial Inspector. When the chief of police was asked whether he knew one Irene, a bailarina, he answered that he knew one of loose morals of the same name. Upon request of the Provincial Inspector, the chief of police tried to locate some of his men to guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of them he volunteered to go with the party. The Provincial Inspector divided the party into two groups with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street leading to the house where Irene was supposedly living. When this group arrived at Irene's house, Oanis approached one Brigida Mallare, who was then

stripping banana stalks, and asked her where Irene's room was. Brigida indicated the place and upon further inquiry also said that Irene was sleeping with her paramour. Brigida trembling, immediately returned to her own room which was very near that occupied by Irene and her paramour. Defendants Oanis and Galanta then went to the room of Irene, and an seeing a man sleeping with his back towards the door where they were, simultaneously or successively fired at him with their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene saw her paramour already wounded, and looking at the door where the shots came, she saw the defendants still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the killing, repaired to the scene and when he asked as to who killed the deceased. Galanta, referring to himself and to Oanis, answered: "We two, sir." The corpse was thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found on Tecson's body which caused his death. These are the facts as found by the trial court and fully supported by the evidence, particularly by the testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According to Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida where Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was sleeping in the same room. Oanis went to the room thus indicated and upon opening the curtain covering the door, he said: "If you are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit up in bed. Oanis fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and shouted: "That is Balagtas." Galanta then fired at Tecson. On the other hand, Oanis testified that after he had opened the curtain covering the door and after having said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter was still lying on bed, and continued firing until he had exhausted his bullets: that it was only thereafter that he, Oanis, entered the door and upon seeing the supposed Balagtas, who was then apparently watching and picking up something from the floor, he fired at him. The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because they are vitiated by a natural urge to exculpate themselves of the crime, but also because they are materially contradictory. Oasis averred that be fired at Tecson when the latter was apparently watching somebody in an attitudes of picking up something from the floor; on the other hand, Galanta testified that Oasis shot Tecson while the latter was about to sit up in bed immediately after he was awakened by a noise. Galanta testified that he fired at Tecson, the supposed Balagtas, when the latter was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still lying on bed. It is apparent from these contradictions that when each of the appellants tries to exculpate himself of the crime charged, he is at once belied by the other; but their mutual incriminating averments dovetail with and corroborate substantially, the testimony of Irene Requinea. It should be recalled that, according to Requinea, Tecson was still sleeping in bed when he was shot to death by appellants. And this, to a certain extent, is confirmed by both appellants themselves in their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was still in bed about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot Tecson, the latter was still lying in bed. Thus corroborated, and considering that the trial court had the opportunity to observe her demeanor on the stand, we believe and so hold that no error was committed in accepting her testimony and in rejecting the exculpatory pretensions of the two appellants. Furthermore, a careful examination of Irene's testimony will show not only that her version of the tragedy is not concocted but that it contains all indicia of veracity. In her cross-examination, even misleading questions had been put which were unsuccessful, the witness having stuck to the truth in every detail of the occurrence. Under these circumstances, we do not feel ourselves justified in disturbing the findings of fact made by the trial court. The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards the door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo Balagtas but without having made previously any reasonable inquiry as to his identity. And the question is whether or not they may, upon such fact, be held responsible for the death thus caused to Tecson. It is contended that, as appellants acted in innocent mistake of fact in the honest performance of their official duties, both of them believing that Tecson was Balagtas, they incur no criminal liability. Sustaining this theory in part, the lower court held and so declared them guilty of the crime of homicide through reckless imprudence. We are of the opinion, however, that, under the circumstances of the case, the crime committed by appellants is murder through specially mitigated by circumstances to be mentioned below. In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the mistake is committed without fault or carelessness. In the Ah Chong case, defendant therein after having gone to bed was awakened by someone trying to open the door. He called out twice, "who is there," but received no answer. Fearing that the intruder was a robber, he leaped from his bed and called out again., "If you enter the room I will kill you." But at that precise moment, he was struck by a chair which had been placed against the door and believing that he was then being attacked, he seized a kitchen knife and struck and fatally wounded the intruder who turned out to be his room-mate. A common illustration of innocent mistake of fact is the case of a man who was marked as a footpad at night and in a lonely road held up a friend in a spirit of mischief, and with leveled, pistol demanded his money or life. He was killed by his friend under the mistaken belief that the attack was real, that the pistol leveled at his head was loaded and that his life and property were in imminent danger at the hands of the aggressor. In these instances, there is an innocent mistake of fact committed without any fault or carelessness because the accused, having no time or opportunity to make a further inquiry, and being pressed by circumstances to act immediately, had no alternative but to take the facts as they then appeared to him, and such facts justified his act of killing. In the instant case, appellants, unlike the accused in the instances cited, found no circumstances whatsoever which would press them to immediate action. The person

in the room being then asleep, appellants had ample time and opportunity to ascertain his identity without hazard to themselves, and could even effect a bloodless arrest if any reasonable effort to that end had been made, as the victim was unarmed, according to Irene Requinea. This, indeed, is the only legitimate course of action for appellants to follow even if the victim was really Balagtas, as they were instructed not to kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or aggression is offered by him. Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force or in treating him with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal liability if he uses unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the community, but these facts alone constitute no justification for killing him when in effecting his arrest, he offers no resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242). It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which he has by such notoriety already forfeited. We may approve of this standard of official conduct where the criminal offers resistance or does something which places his captors in danger of imminent attack. Otherwise we cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety rightly supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever to warrant action of such character in the mind of a reasonably prudent man, condemnation not condonation should be the rule; otherwise we should offer a premium to crime in the shelter of official actuation. The crime committed by appellants is not merely criminal negligence, the killing being intentional and not accidental. In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se celifique un hecho de imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de daar; existiendo esa intencion, debera calificarse el hecho del delito que ha producido, por mas que no haya sido la intencion del agente el causar un mal de tanta gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability. As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance of alevosia. There is, however, a mitigating circumstance of weight consisting in the incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal Code. According to such legal provision, a person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or office. There are two requisites in order that the circumstance may be taken as a justifying one: (a) that the offender acted in the performance of a duty or in the lawful exercise of a right; and ( b) that the injury or offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such right or office. In the instance case, only the first requisite is present appellants have acted in the performance of a duty. The second requisite is wanting for the crime by them committed is not the necessary consequence of a due performance of their duty. Their duty was to arrest Balagtas or to get him dead or alive if resistance is offered by him and they are overpowered. But through impatience or over-anxiety or in their desire to take no chances, they have exceeded in the fulfillment of such duty by killing the person whom they believed to be Balagtas without any resistance from him and without making any previous inquiry as to his identity. According to article 69 of the Revised Penal Code, the penalty lower by one or two degrees than that prescribed by law shall, in such case, be imposed. For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of from five (5) years of prision correctional to fifteen (15) years of reclusion temporal, with the accessories of the law, and to pay the heirs of the deceased Serapio Tecson jointly and severally an indemnity of P2,000, with costs. Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur. G.R. No. L-74324 November 17, 1988 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA, accused-appellants. The Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for accused-appellants.

MEDIALDEA, J.: For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and BENJAMIN SAMSON y MAGDALENA were charged with the crime of MURDER in Criminal Case No. L-175-82 of the Court of First Instance (now Regional Trial Court) of Cavite, under an information which reads as follows: That on or about May 19, 1982 at the town plaza of the Municipality of Rosario, Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and assisting one another, with treachery and evident premeditation, taking advantage of their superior strength, and with the decided purpose to kill, poured gasoline, a combustible liquid to the body of Bayani Miranda and with the use of fire did then and there, wilfully, unlawfully and feloniously, burn the whole body of said Bayani Miranda which caused his subsequent death, to the damage and prejudice of the heirs of the aforenamed Bayani Miranda. That the crime was committed with the qualifying circumstance of treachery and the aggravating circumstances of evident premeditation and superior strength, and the means employed was to weaken the defense; that the wrong done in the commission of the crime was deliberately augmented by causing another wrong, that is the burning of the body of Bayani Miranda. CONTRARY TO LAW (p. 1, Records). Upon being arraigned, both accused pleaded not guilty to the offense charged. After trial, the trial court rendered a decision finding both accused guilty on the crime of murder but crediting in favor of the accused Pugay the mitigating circumstance of lack of intention to commit so grave a wrong, the dispositive portion of which reads as follows: WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y Magdalena are pronounced guilty beyond reasonable doubt as principals by direct participation of the crime of murder for the death of Bayani Miranda, and appreciating the aforestated mitigating circumstance in favor of Pugay, he is sentenced to a prison term ranging from twelve (12) years of prision mayor, as minimum, to twenty (20) years ofreclusion temporal, as maximum, and Samson to suffer the penalty of reclusion perpetua together with the accessories of the law for both of them. The accused are solidarily held liable to indemnify the heirs of the victim in the amount of P13,940.00 plus moral damages of P10,000.00 and exemplary damages of P5,000.00. Let the preventive imprisonment of Pugay be deducted from the principal penalty. Cost against both accused. SO ORDERED (p. 248, Records). Not satisfied with the decision, both accused interposed the present appeal and assigned the following errors committed by the court a quo: 1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF ACCUSED-APPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A COUNSEL DURING THE CUSTODIAL INVESTIGATION. 2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY THE PROSECUTION OF SOME EVIDENCE IS FATAL TO ITS CASE. 3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE TESTIMONY OF EDUARDO GABION WHO WAS ONE OF THE MANY SUSPECTS ARRESTED BY THE POLICE (Accused-appellants' Brief, p. 48, Rollo). The antecedent facts are as follows: The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends. Miranda used to run errands for Pugay and at times they slept together. On the evening of May 19, 1982, a town fiesta fair was held in the public plaza of Rosario, Cavite. There were different kinds of ride and one was a ferris wheel. Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris wheel and reading a comic book with his friend Henry. Later, the accused Pugay and Samson with several companions arrived. These persons appeared to be drunk

as they were all happy and noisy. As the group saw the deceased walking nearby, they started making fun of him. They made the deceased dance by tickling him with a piece of wood. Not content with what they were doing with the deceased, the accused Pugay suddenly took a can of gasoline from under the engine of the ferns wheel and poured its contents on the body of the former. Gabion told Pugay not to do so while the latter was already in the process of pouring the gasoline. Then, the accused Samson set Miranda on fire making a human torch out of him. The ferris wheel operator later arrived and doused with water the burning body of the deceased. Some people around also poured sand on the burning body and others wrapped the same with rags to extinguish the flame. The body of the deceased was still aflame when police officer Rolando Silangcruz and other police officers of the Rosario Police Force arrived at the scene of the incident. Upon inquiring as to who were responsible for the dastardly act, the persons around spontaneously pointed to Pugay and Samson as the authors thereof. The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the police officers brought Gabion, the two accused and five other persons to the Rosario municipal building for interrogation. Police officer Reynaldo Canlas took the written statements of Gabion and the two accused, after which Gabion was released. The two accused remained in custody. After a careful review of the records, We find the grounds relied upon by the accused-appellants for the reversal of the decision of the court a quo to be without merit. It bears emphasis that barely a few hours after the incident, accused-appellants gave their written statements to the police. The accused Pugay admitted in his statement, Exhibit F, that he poured a can of gasoline on the deceased believing that the contents thereof was water and then the accused Samson set the deceased on fire. The accused Samson, on the other hand, alleged in his statement that he saw Pugay pour gasoline on Miranda but did not see the person who set him on fire. Worthy of note is the fact that both statements did not impute any participation of eyewitness Gabion in the commission of the offense. While testifying on their defense, the accused-appellants repudiated their written statements alleging that they were extracted by force. They claimed that the police maltreated them into admitting authorship of the crime. They also engaged in a concerted effort to lay the blame on Gabion for the commission of the offense. Thus, while it is true that the written statements of the accused-appellants were mentioned and discussed in the decision of the court a quo, the contents thereof were not utilized as the sole basis for the findings of facts in the decision rendered. The said court categorically stated that "even without Exhibits 'F' and 'G', there is still Gabion's straightforward, positive and convincing testimony which remains unaffected by the uncorroborated, self-serving and unrealiable testimonies of Pugay and Samson" (p. 247, Records). Accused-appellants next assert that the prosecution suppressed the testimonies of other eyewitnesses to the incident. They claim that despite the fact that there were other persons investigated by the police, only Gabion was presented as an eyewitness during the trial of the case. They argue that the deliberate non- presentation of these persons raises the presumption that their testimonies would be adverse to the prosecution. There is no dispute that there were other persons who witnessed the commission of the crime. In fact there appears on record (pp. 16-17, Records) the written statements of one Abelardo Reyes and one Monico Alimorong alleging the same facts and imputing the respective acts of pouring of gasoline and setting the deceased on fire to the accused-appellants as testified to by Gabion in open court. They were listed as prosecution witnesses in the information filed. Considering that their testimonies would be merely corroborative, their non-presentation does not give rise to the presumption that evidence wilfully suppressed would be adverse if produced. This presumption does not apply to the suppression of merely corroborative evidence (U.S. vs. Dinola, 37 Phil. 797).<re||an1w> Besides, the matter as to whom to utilize as witness is for the prosecution to decide. Accused-appellants also attack the credibility of the eyewitness Gabion alleging that not only was the latter requested by the mother of the deceased to testify for the prosecution in exchange for his absolution from liability but also because his testimony that he was reading a comic book during an unusual event is contrary to human behavior and experience. Gabion testified that it was his uncle and not the mother of the deceased who asked him to testify and state the truth about the incident. The mother of the deceased likewise testified that she never talked to Gabion and that she saw the latter for the first time when the instant case was tried. Besides, the accused Pugay admitted that Gabion was his friend and both Pugay and the other accused Samson testified that they had no previous misunderstanding with Gabion. Clearly, Gabion had no reason to testify falsely against them. In support of their claim that the testimony of Gabion to the effect that he saw Pugay pour gasoline on the deceased and then Samson set him on fire is incredible, the accused-appellants quote Gabion's testimony on cross-examination that, after telling

Pugay not to pour gasoline on the deceased, he (Gabion) resumed reading comics; and that it was only when the victim's body was on fire that he noticed a commotion. However, explaining this testimony on re-direct examination, Gabion stated: Q. Mr. Gabion, you told the Court on cross-examination that you were reading comics when you saw Pugay poured gasoline unto Bayani Miranda and lighted by Samson. How could you possibly see that incident while you were reading comics? A. I put down the comics which I am reading and I saw what they were doing. Q. According to you also before Bayani was poured with gasoline and lighted and burned later you had a talk with Pugay, is that correct? A. When he was pouring gasoline on Bayani Miranda I was trying to prevent him from doing so. Q. We want to clarify. According to you a while ago you had a talk with Pugay and as a matter of fact, you told him not to pour gasoline. That is what I want to know from you, if that is true? A. Yes, sir. Q. Aside from Bayani being tickled with a stick on his ass, do you mean to say you come to know that Pugay will pour gasoline unto him? A. I do not know that would be that incident. Q. Why did you as(k) Pugay in the first place not to pour gasoline before he did that actually? A. Because I pity Bayani, sir. Q. When you saw Pugay tickling Bayani with a stick on his ass you tried according to you to ask him not to and then later you said you asked not to pour gasoline. Did Pugay tell you he was going to pour gasoline on Bayani? A. I was not told, sir. Q. Did you come to know..... how did you come to know he was going to pour gasoline that is why you prevent him? A. Because he was holding on a container of gasoline. I thought it was water but it was gasoline. Q. It is clear that while Pugay was tickling Bayani with a stick on his ass, he later got hold of a can of gasoline, is that correct? A. Yes, sir. Q. And when he pick up the can of gasoline, was that the time you told him not to pour gasoline when he merely pick up the can of gasoline. A. I saw him pouring the gasoline on the body of Joe. Q. So, it is clear when you told Pugay not to pour gasoline he was already in the process of pouring gasoline on the body of Bayani? A. Yes, sir (Tsn, July 30, 1983, pp. 32-33). It is thus clear that prior to the incident in question, Gabion was reading a comic book; that Gabion stopped reading when the group of Pugay started to make fun of the deceased; that Gabion saw Pugay get the can of gasoline from under the engine of the ferris wheel; that it was while Pugay was in the process of pouring the gasoline on the body of the deceased when Gabion warned him not to do so; and that Gabion later saw Samson set the deceased on fire. However, there is nothing in the records showing that there was previous conspiracy or unity of criminal purpose and intention between the two accused-appellants immediately before the commission of the crime. There was no animosity between the deceased and the accused Pugay or Samson. Their meeting at the scene of the incident was accidental. It is also clear that the accused Pugay and his group merely wanted to make fun of the deceased. Hence, the respective criminal responsibility of

Pugay and Samson arising from different acts directed against the deceased is individual and not collective, and each of them is liable only for the act committed by him (U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371). The next question to be determined is the criminal responsibility of the accused Pugay. Having taken the can from under the engine of the ferris wheel and holding it before pouring its contents on the body of the deceased, this accused knew that the can contained gasoline. The stinging smell of this flammable liquid could not have escaped his notice even before pouring the same. Clearly, he failed to exercise all the diligence necessary to avoid every undesirable consequence arising from any act that may be committed by his companions who at the time were making fun of the deceased. We agree with the Solicitor General that the accused is only guilty of homicide through reckless imprudence defined in Article 365 of the Revised Penal Code, as amended. In U.S. vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as follows: A man must use common sense and exercise due reflection in all his acts; it is his duty to be cautious, careful, and prudent, if not from instinct, then through fear of incurring punishment. He is responsible for such results as anyone might foresee and for acts which no one would have performed except through culpable abandon. Otherwise his own person, rights and property, all those of his fellow-beings, would ever be exposed to all manner of danger and injury. The proper penalty that the accused Pugay must suffer is an indeterminate one ranging from four (4) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. With respect to the accused Samson, the Solicitor General in his brief contends that "his conviction of murder, is proper considering that his act in setting the deceased on fire knowing that gasoline had just been poured on him is characterized by treachery as the victim was left completely helpless to defend and protect himself against such an outrage" (p. 57, Rollo). We do not agree. There is entire absence of proof in the record that the accused Samson had some reason to kill the deceased before the incident. On the contrary, there is adequate evidence showing that his act was merely a part of their fun-making that evening. For the circumstance of treachery to exist, the attack must be deliberate and the culprit employed means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from any defense which the offended party might make. There can be no doubt that the accused Samson knew very well that the liquid poured on the body of the deceased was gasoline and a flammable substance for he would not have committed the act of setting the latter on fire if it were otherwise. Giving him the benefit of doubt, it call be conceded that as part of their fun-making he merely intended to set the deceased's clothes on fire. His act, however, does not relieve him of criminal responsibility. Burning the clothes of the victim would cause at the very least some kind of physical injuries on his person, a felony defined in the Revised Penal Code. If his act resulted into a graver offense, as what took place in the instant case, he must be held responsible therefor. Article 4 of the aforesaid code provides, inter alia, that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended. As no sufficient evidence appears in the record establishing any qualifying circumstances, the accused Samson is only guilty of the crime of homicide defined and penalized in Article 249 of the Revised Penal Code, as amended. We are disposed to credit in his favor the ordinary mitigating circumstance of no intention to commit so grave a wrong as that committed as there is evidence of a fact from which such conclusion can be drawn. The eyewitness Gabion testified that the accused Pugay and Samson were stunned when they noticed the deceased burning (Tsn, June 1, 1983, pp. 16-17).<re||an1w> The proper penalty that the accused Samson must suffer is an indeterminate one ranging from eight (8) years of prision mayor, as minimum, to fourteen (14) years of reclusion temporal, as maximum. The lower court held the accused solidarily liable for P13,940.00, the amount spent by Miranda's parents for his hospitalization, wake and interment. The indemnity for death is P30,000.00. Hence, the indemnity to the heirs of the deceased Miranda is increased to P43,940.00. Both accused shall be jointly and severally liable for the aforesaid amount plus the P10,000.00 as moral damages and P5,000.00 as exemplary damages as found by the court a quo. Accordingly, the judgment is affirmed with the modifications above-indicated. Costs against the accused-appellants. SO ORDERED. G.R. No. 153591 February 23, 2004 THE PHILIPPINES, appellee

PEOPLE OF vs. RENATO GARCIA y ROMANO, appellant. DECISION

YNARES-SANTIAGO, J.: Appellant Renato Garcia y Romano was charged with Murder before the Regional Trial Court of Quezon City, Branch 87, in Criminal Case No. Q-98-79961 in an Information1 which reads: That on or about the 22nd day of May, 1998, in Quezon City, Philippines, the said accused, being then the driver and/or person in charge of an Isuzu Jitney bearing Plate No. NPJ-948 did then and there unlawfully and feloniously drive, manage and operate the same along Zabarte Road in said City, in a careless, reckless, negligent and impudent manner, by then and there making the said vehicle run at a speed greater than was reasonable and proper without taking the necessary precaution to avoid accident to person/s of the traffic at said place at the time, causing as consequence of his said carelessness, negligence, impudence and lack of precaution, the said vehicle so driven, managed and operated by him to hit and bump, as in fact it hit and bumped Sanily Billon y Trinidad, a pedestrian, thereafter, with intent to kill, qualified by evident premeditation and use of motor vehicle, did then and there willfully, unlawfully and feloniously ran said vehicle over the victim thereby causing her serious and mortal wounds which were the direct and immediate cause of her untimely death, to the damage and prejudice of the heirs of the said Sanily Billon y Trinidad. CONTRARY TO LAW. On arraignment, appellant pleaded "not guilty". Thereafter, trial on the merits followed. The prosecution alleged that at around 12:00 noon of May 22, 1998, Bentley Billon and his younger sister, Sanily, boarded a passenger jeepney on their way to Sacred Heart School in Barangay Kaligayahan, Novaliches, Quezon City to attend remedial classes. They alighted on Zabarte Road in front of the school. Bentley crossed the street and waited on the center island for Sanily to cross. While Sanily was crossing the street, a passenger jeepney driven by appellant, coming from Camarin and heading towards Quirino Highway, hit her on the left side of the body. Sanily fell and was thrown to the ground a meter away from the vehicle. The jeepney stopped. But as Bentley was running towards his sister, the vehicle suddenly accelerated with its front tire running over Sanilys stomach. Bentley and appellant pulled Sanily, who was writhing in excruciating pain, from underneath the vehicle and brought her to the Sta. Lucia Hospital but due to lack of medical facilities, she was transferred to the Quezon City General Hospital (QCGH) where she was operated. However, she died four days later. Dr. Emmanuel Reyes,2 Medico-legal of the Southern Police District, Fort Bonifacio, testified that the attending physician, Dr. Santiago C. Sagad, noted lacerations in Sanilys liver and spleen which was caused by a blunt/strong force on the victims body, resulting to her death due to internal bleeding. He opined that the blunt force may have also caused lacerations in the victims intestine and the abrasions on the arm, from the elbow to the shoulder could be the result of the skins contact with a rough surface. Appellant admitted having ran over the victim, but claimed that it was an accident. He narrated that at around noon on May 22, 1998, while driving his passenger jeepney along Zabarte Road, he saw a boy crossing the street followed by the victim. While the vehicle was running, he heard a thud. He immediately applied his breaks and alighted to check what it was. He saw to his horror a girl sprawled underneath his vehicle between the front and the rear tires. He and the victims brother rushed the girl to the Sta. Lucia Hospital, but they transferred her to the Quezon City General Hospital which has better facilities. A week later, he learned that the victim died. On May 2, 2002, the trial court rendered judgment,3 finding appellant guilty beyond reasonable doubt of Murder and sentenced him to suffer the penalty of reclusion perpetua, the dispositive portion of which reads:4 WHEREFORE, judgment is hereby rendered finding accused guilty beyond reasonable doubt of the crime of Murder, for which, said RENATO GARCIA y ROMANO is hereby sentenced to suffer the penalty of reclusion perpetua and to indemnify the heirs of Sanily Billon the sum of One Hundred and Twenty Three Thousand and Five Hundred Pesos (P123,500.00) as actual damages including attorneys fees; Fifty Thousand Pesos (P50,000.00) as civil indemnity for the death of Sanily and Five Hundred Thousand Pesos (P500,000.00) as moral damages. Cost against the accused. SO ORDERED. The trial court held that appellant is guilty of murder qualified by evident premeditation because he deliberately ran over the slumped body of the victim. Hence this appeal, raising the following errors, to wit: I

THE TRIAL COURT GRAVELY ERRED IN APPRECIATING AGAINST ACCUSED-APPELLANT THE QUALIFYING CIRCUMSTANCE OF EVIDENT PREMEDITAION II THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED GUILTY BEYOND REASONABLE BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AS CHARGED. The issue to be resolved is whether or not appellant is guilty of murder or reckless imprudence resulting in homicide. Appellant argues that the trial court gravely erred in finding that the qualifying circumstance of evident premeditation attended the commission of the offense. He contends that the mere allegation by the prosecution that he bumped the victim and intentionally ran over her body is not sufficient to establish evident premeditation. He claims that he did not intentionally run over the victim when his vehicle bumped her because he was rattled and was no longer aware of what he was doing. We find from a careful review of the facts on record that the unfortunate incident was more the result of reckless imprudence than of malicious intent. Therefore, the trial court erred in convicting appellant of the crime of murder qualified by evident premeditation. The elements of evident premeditation are: (1) a previous decision by the appellant to commit the crime; (2) an overt act/acts manifestly indicating that the appellant clung to his determination; and (3) a lapse of time between the decision to commit the crime and its actual execution sufficient to allow appellant to reflect upon the consequences of his acts. The victims brother, Bentley, testified that the vehicle stopped after it bumped the victim, but it moved forward and ran over the prostrate body of her sister. From his narration, we find that no sufficient time elapsed for appellant to decide to commit the crime and reflect on its consequences. Moreover, there was no showing that appellant performed other overt acts to show that he was determined to commit murder. The essence of evident premeditation is that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent, during the space of time sufficient to arrive at a calm judgment.5 These circumstances do not obtain in the case at bar. Appellant could have reacted on instinct and relied on sheer impulse to respond to the situation at hand. While it is possible that appellant deliberately ran over the victim, it is equally possible, if not more probable, that the vehicle moved forward because appellant failed to control its momentum. Indeed, this is more consistent with the unrebutted evidence that the jeepney, which had no handbrake, was moving fast and that appellant became confused when the accident occurred. Furthermore, appellants act of bringing the victim to the hospital despite numerous opportunities to flee from the scene is more compatible with a state of mind devoid of criminal intent. In view of the gravity of the offense involved, the trial court should have been more circumspect in weighing the evidence of both parties. Our own evaluation of the evidence reveals that appellant had no intention to kill the victim. As such, he cannot be held liable for an intentional felony. All reasonable doubt intended to demonstrate negligence, and not criminal intent, must be resolved in favor of appellant.6 Thus, appellant is guilty of reckless imprudence resulting in homicide defined in Article 365 of the Revised Penal Code, as amended. In U.S. v. Maleza,7 we explained the rationale behind this crime as follows: A man must use common sense, and exercise due reflection in all his acts; it is his duty to be cautious, careful, and prudent, if not from instinct, then through fear of incurring punishment. He is responsible for such results as anyone might foresee and for acts which no one would have performed except through culpable abandon. Otherwise his own person, rights and property, all those of his fellow-beings, would ever be exposed to all manner of danger and injury. In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible. 8 Article 365 of the Revised Penal Code, as amended, states that reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing such act. Compared to intentional felonies, such as homicide or murder, what takes the place of the element of malice or intention to commit a wrong or evil is the failure of the offender to take precautions due to lack of skill taking into account his employment, or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time, and place.9 Appellant showed an inexcusable lack of precaution when he disregarded a traffic sign cautioning motorists to slow down10 and drove his vehicle in full speed despite being aware that he was traversing a school zone and pedestrians were crossing the street. He should have observed due diligence of a reasonably prudent man by slackening his speed and proceeding cautiously while passing the area.

The imposable penalty, under Art. 365 (2)11 of the Revised Penal Code, homicide resulting from reckless imprudence in the use of motor vehicle is prision correccional in its medium and maximum periods, which ranges from two (2) years, four (4) months and one (1) day to six (6) years. Under Article 65 of the Revised Penal Code, the penalty shall be divided into three equal portions of time, each of which shall form one period. There being no aggravating or mitigating circumstance, the proper penalty shall be within the medium period, which is three (3) years, six (6) months and twenty-one (21) days to four (4) years, nine (9) months and ten (10) days. Applying the provisions of the Indeterminate Sentence Law, appellant is entitled to a minimum term to be taken from the penalty next lower in degree, which is arresto mayor, maximum to prision correccional, minimum. Accordingly, appellant should be sentenced to an indeterminate penalty of four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum.12 The trial court correctly awarded P50,000.00 as civil indemnity. However, the award of moral damages in the amount of P500,000.00 should be reduced to P50,000.00.13 The award of P30,000.00 as actual damages must likewise be modified. The mother of the victim presented receipts that they, in fact, spent P58,257.90 14 for hospital bills and funeral expenses. The fact that she received P40,000.00 from insurance will not affect the award of actual damages. 15 The award of exemplary damages is deleted for lack of factual basis. WHEREFORE, in view of the foregoing, the Decision of the Regional Trial Court of Quezon City, Branch 87, in Civil Case No. Q-98-79961, convicting appellant of the crime of murder is REVERSED and SET ASIDE. Appellant Renato Garcia y Romano is found guilty beyond reasonable doubt of the crime reckless imprudence resulting in homicide, and he is sentenced to suffer an indeterminate prison term of four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. Appellant is ordered to pay the heirs of the victim, P50,000.00 as civil indemnity, P58,257.90 as actual damages and P50,000.00 as moral damages. Costs de oficio. SO ORDERED. G.R. No. 157171 March 14, 2006 GARCIA, Petitioner,

ARSENIA B. vs. HON. COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, Respondents DECISION QUISUMBING, J.:

This petition seeks the review of the judgment of the Court of Appeals in CA-G.R. CR No. 24547 1that affirmed the conviction of petitioner by the Regional Trial Court 2of Alaminos City, Pangasinan, Branch 54, for violation of Section 27(b) of Republic Act No. 6646.3 Based on the complaint-affidavit of Aquilino Q. Pimentel, Jr., who ran in the 1995 senatorial elections, an information dated March 30, 1998, was filed in the Regional Trial Court of Alaminos, charging Herminio R. Romero, Renato R. Viray, Rachel Palisoc and Francisca de Vera, and petitioner, with violation of Section 27(b). The information reads: That on or about May 11, 1995, which was within the canvassing period during the May 8, 1995 elections, in the Municipality of Alaminos, Province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Election Officer Arsenia B. Garcia, Municipal Treasurer Herminio R. Romero, Public School District Supervisor Renato R. Viray, Chairman, Vice-Chairman, and Member-Secretary, respectively, of the Municipal Board of Canvassers of Alaminos, Pangasinan, tabulators Rachel Palisoc and Francisca de Vera, conspiring with, confederating together and mutually helping each other, did, then and there, willfully, and unlawfully decrease[d] the votes received by senatorial candidate Aquilino Q. Pimentel, Jr. from six thousand nine hundred ninety-eight (6,998) votes, as clearly disclosed in the total number of votes in the one hundred fifty-nine (159) precincts of the Statement of Votes by Precincts of said municipality, with Serial Nos. 008417, 008418, 008419, 008420, 008421, 008422 and 008423 to one thousand nine hundred twenty-one (1,921) votes as reflected in the Statement of Votes by Precincts with Serial No. 008423 and Certificate of Canvass with Serial No. 436156 with a difference of five thousand seventy-seven (5,077) votes. CONTRARY TO LAW.4 In a Decision dated September 11, 2000, the RTC acquitted all the accused for insufficiency of evidence, except petitioner who was convicted as follows: xxx

5. And finally, on the person of Arsenia B. Garcia, the Court pronounces her GUILTY beyond reasonable doubt, of the crime defined under Republic Act 6646, Section 27 (b) for decreasing the votes of Senator Pimentel in the total of 5,034 and in relation to BP Blg. 881, considering that this finding is a violation of Election Offense, she is thus sentenced to suffer an imprisonment of SIX (6) YEARS as maximum, but applying the INDETERMINATE SENTENCE LAW, the minimum penalty is the next degree lower which is SIX (6) MONTHS; however, accused Arsenia B. Garcia is not entitled to probation; further, she is sentenced to suffer disqualification to hold public office and she is also deprived of her right of suffrage. The bailbond posted by her is hereby ordered cancelled, and the Provincial Warden is ordered to commit her person to the Bureau of Correctional Institution for Women, at Metro Manila, until further orders from the court. No pronouncement as to costs. IT IS SO ORDERED.5 Petitioner appealed before the Court of Appeals which affirmed with modification the RTC Decision, thus, WHEREFORE, foregoing considered, the appealed decision is hereby affirmed with modification, increasing the minimum penalty imposed by the trial court from six (6) months to one (1) year. SO ORDERED.6 The Court of Appeals likewise denied the motion for reconsideration. Hence, this appeal assigning the following as errors of the appellate court: I ON THE FIRST AND SECOND GROUNDS RELIED UPON BY THE RESPONDENT COURT, NAMELY, THAT IT COULD NOT HAVE BEEN SECRETARY VIRAY WHO DECREASED THE VOTES OF COMPLAINANT PIMENTEL SINCE HE MERELY RELIED ON WHAT THE PETITIONER DICTATED, AND THAT IT COULD NOT HAVE ALSO BEEN THE TABULATORS BECAUSE PETITIONER WAS THE ONE WHO READ THE ADDING [MACHINE] TAPE. II ON THE THIRD GROUND, NAMELY, THAT PETITIONER DID NOT PRODUCE THE TAPES DURING THE TRIAL BECAUSE IF PRODUCED, IT IS GOING TO BE ADVERSE TO HER. III ON THE FOURTH GROUND, NAMELY, THAT THE PETITIONER WAS THE ONE WHO ENTERED THE REDUCED FIGURE OF 1,921 IN THE CERTIFICATE OF CANVASS (COC), Exh. "7", WHEN THE DUTY WAS THAT OF THE SECRETARY OF THE BOARD. IV THE REDUCTION OF THE VOTES OF CANDIDATE PIMENTEL WAS CLEARLY NOT WILLFUL OR INTENTIONAL. 7 Petitioner contends that (1) the Court of Appeals judgment is erroneous, based on speculations, surmises and conjectures, instead of substantial evidence; and (2) there was no motive on her part to reduce the votes of private complainant. Respondent on the other hand contends that good faith is not a defense in the violation of an election law, which falls under the class of mala prohibita. The main issue is, Is a violation of Section 27(b) of Rep. Act No. 6646, classified under mala in se or mala prohibita? Could good faith and lack of criminal intent be valid defenses? Generally, mala in se felonies are defined and penalized in the Revised Penal Code. When the acts complained of are inherently immoral, they are deemed mala in se, even if they are punished by a special law.8Accordingly, criminal intent must be clearly established with the other elements of the crime; otherwise, no crime is committed. On the other hand, in crimes that are mala prohibita, the criminal acts are not inherently immoral but become punishable only because the law says they are forbidden. With these crimes, the sole issue is whether the law has been violated. 9Criminal intent is not necessary where the acts are prohibited for reasons of public policy.10

Section 27(b) of Republic Act No. 664611provides: SEC. 27. Election Offenses.- In addition to the prohibited acts and election offenses enumerated in Sections 261 and 262 of Batas Pambansa Blg. 881, as amended, the following shall be guilty of an election offense: xxx (b) Any member of the board of election inspectors or board of canvassers who tampers, increases, or decreases the votes received by a candidate in any election or any member of the board who refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered votes. xxx Clearly, the acts prohibited in Section 27(b) are mala in se.12For otherwise, even errors and mistakes committed due to overwork and fatigue would be punishable. Given the volume of votes to be counted and canvassed within a limited amount of time, errors and miscalculations are bound to happen. And it could not be the intent of the law to punish unintentional election canvass errors. However, intentionally increasing or decreasing the number of votes received by a candidate is inherently immoral, since it is done with malice and intent to injure another. Criminal intent is presumed to exist on the part of the person who executes an act which the law punishes, unless the contrary shall appear.13Thus, whoever invokes good faith as a defense has the burden of proving its existence. Records show that the canvassing of votes on May 11, 1995 before the Board of Canvassers of the Municipality of Alaminos, Pangasinan was conducted as follows: 1. After the votes in the 159 precincts of the municipality of Alaminos were tallied, the results thereof were sealed and forwarded to the Municipal Board of Canvassers for canvassing; 2. The number of votes received by each candidate in each precinct was then recorded in the Statement of Votes with appellant, in her capacity as Chairman, reading the figures appearing in the results from the precincts and accused Viray, in his capacity as secretary of the Board, entering the number in the Statements of Votes as read by the appellant. Six Statements of Votes were filled up to reflect the votes received by each candidate in the 159 precincts of the Municipality of Alaminos, Pangasinan. 3. After the number of votes received by each candidate for each precincts were entered by accused Viray in the Statements of Votes, these votes were added by the accused Palisoc and de Vera with the use of electrical adding machines. 4. After the tabulation by accused Palisoc and de Vera, the corresponding machine tapes were handed to appellant who reads the subtotal of votes received by each candidate in the precincts listed in each Statement of Votes. Accused Viray [then] records the subtotal in the proper column in the Statement of Votes. 5. After the subtotals had been entered by accused Viray, tabulators accused Palisoc and de Vera added all the subtotals appearing in all Statement of Votes. 6. After the computation, the corresponding machine tape on which the grand total was reflected was handed to appellant who reads the same and accused Viray enters the figure read by appellant in the column for grand total in the Statement of Votes.14 Neither the correctness of the number of votes entered in the Statement of Votes (SOV) for each precinct, nor of the number of votes entered as subtotals of votes received in the precincts listed in SOV Nos. 008417 to 008422 was raised as an issue. At first glance, however, there is a noticeable discrepancy in the addition of the subtotals to arrive at the grand total of votes received by each candidate for all 159 precincts in SOV No. 008423. 15The grand total of the votes for private complainant, Senator Aquilino Pimentel, was only 1,921 instead of 6,921, or 5,000 votes less than the number of votes private complainant actually received. This error is also evident in the Certificate of Canvass (COC) No. 436156 signed by petitioner, Viray and Romero.16 During trial of this case, petitioner admitted that she was indeed the one who announced the figure of 1,921, which was subsequently entered by then accused Viray in his capacity as secretary of the board. 17Petitioner likewise admitted that she was the one who prepared the COC (Exhibit A-7), though it was not her duty. To our mind, preparing the COC even if it was not her task, manifests an intention to perpetuate the erroneous entry in the COC.18 Neither can this Court accept petitioners explanation that the Board of Canvassers had no idea how the SOV (Exhibit "6") and the COC reflected that private complainant had only 1,921 votes instead of 6,921 votes. As chairman of the Municipal Board of

Canvassers, petitioners concern was to assure accurate, correct and authentic entry of the votes. Her failure to exercise maximum efficiency and fidelity to her trust deserves not only censure but also the concomitant sanctions as a matter of criminal responsibility pursuant to the dictates of the law.19 The fact that the number of votes deducted from the actual votes received by private complainant, Sen. Aquilino Pimentel, Jr. was not added to any senatorial candidate does not relieve petitioner of liability under Section 27(b) of Rep. Act No. 6646. The mere decreasing of the votes received by a candidate in an election is already punishable under the said provision.20 At this point, we see no valid reason to disturb the factual conclusions of the appellate court. The Court has consistently held that factual findings of the trial court, as well as of the Court of Appeals are final and conclusive and may not be reviewed on appeal, particularly where the findings of both the trial court and the appellate court on the matter coincide.21 Public policy dictates that extraordinary diligence should be exercised by the members of the board of canvassers in canvassing the results of the elections. Any error on their part would result in the disenfranchisement of the voters. The Certificate of Canvass for senatorial candidates and its supporting statements of votes prepared by the municipal board of canvassers are sensitive election documents whose entries must be thoroughly scrutinized.22 In our review, the votes in the SOV should total 6,998.23 As between the grand total of votes alleged to have been received by private complainant of 6,921 votes and statement of his actual votes received of 6,998 is a difference of 77 votes. The discrepancy may be validly attributed to mistake or error due to fatigue. However, a decrease of 5,000 votes as reflected in the Statement of Votes and Certificate of Canvass is substantial, it cannot be allowed to remain on record unchallenged, especially when the error results from the mere transfer of totals from one document to another. WHEREFORE, the instant petition is DENIED. The assailed Decision of the Court of Appeals sustaining petitioners conviction but increasing the minimum penalty in her sentence to one year instead of six months is AFFIRMED. SO ORDERED. G.R. No. 165842 November 29, 2005 EDUARDO vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION CALLEJO, SR., J.: Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision2 of the Regional Trial Court (RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel of bigamy in Criminal Case No. 19562-R. Eduardo was charged with bigamy in an Information filed on November 7, 2001, the accusatory portion of which reads: That on or about the 22nd day of April, 1996, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused EDUARDO P. MANUEL, being then previously and legally married to RUBYLUS [GAA] and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with TINA GANDALERA-MANUEL, herein complainant, who does not know the existence of the first marriage of said EDUARDO P. MANUEL to Rubylus [Gaa]. CONTRARY TO LAW. 3 The prosecution adduced evidence that on July 28, 1975, Eduardo was married to Rubylus Gaa before Msgr. Feliciano Santos in Makati, which was then still a municipality of the Province of Rizal. 4 He met the private complainant Tina B. Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan, Dagupan City for two days looking for a friend. Tina was then 21 years old, a Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to Baguio City to visit her. Eventually, as one thing led to another, they went to a motel where, despite Tinas resistance, Eduardo succeeded in having his way with her. Eduardo proposed marriage on several occasions, assuring her that he was single. Eduardo even brought his parents to Baguio City to meet Tinas parents, and was assured by them that their son was still single. P. MANUEL, Petitioner,

Tina finally agreed to marry Eduardo sometime in the first week of March 1996. They were married on April 22, 1996 before Judge Antonio C. Reyes, the Presiding Judge of the RTC of Baguio City, Branch 61. 5 It appeared in their marriage contract that Eduardo was "single."

The couple was happy during the first three years of their married life. Through their joint efforts, they were able to build their home in Cypress Point, Irisan, Baguio City. However, starting 1999, Manuel started making himself scarce and went to their house only twice or thrice a year. Tina was jobless, and whenever she asked money from Eduardo, he would slap her.6 Sometime in January 2001, Eduardo took all his clothes, left, and did not return. Worse, he stopped giving financial support. Sometime in August 2001, Tina became curious and made inquiries from the National Statistics Office (NSO) in Manila where she learned that Eduardo had been previously married. She secured an NSO-certified copy of the marriage contract. 7 She was so embarrassed and humiliated when she learned that Eduardo was in fact already married when they exchanged their own vows.8 For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she worked as a Guest Relations Officer (GRO). He fell in love with her and married her. He informed Tina of his previous marriage to Rubylus Gaa, but she nevertheless agreed to marry him. Their marital relationship was in order until this one time when he noticed that she had a "love-bite" on her neck. He then abandoned her. Eduardo further testified that he declared he was "single" in his marriage contract with Tina because he believed in good faith that his first marriage was invalid. He did not know that he had to go to court to seek for the nullification of his first marriage before marrying Tina. Eduardo further claimed that he was only forced to marry his first wife because she threatened to commit suicide unless he did so. Rubylus was charged with estafa in 1975 and thereafter imprisoned. He visited her in jail after three months and never saw her again. He insisted that he married Tina believing that his first marriage was no longer valid because he had not heard from Rubylus for more than 20 years. After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty beyond reasonable doubt of bigamy. He was sentenced to an indeterminate penalty of from six (6) years and ten (10) months, as minimum, to ten (10) years, as maximum, and directed to indemnify the private complainant Tina Gandalera the amount of P200,000.00 by way of moral damages, plus costs of suit.9 The trial court ruled that the prosecution was able to prove beyond reasonable doubt all the elements of bigamy under Article 349 of the Revised Penal Code. It declared that Eduardos belief, that his first marriage had been dissolved because of his first wifes 20-year absence, even if true, did not exculpate him from liability for bigamy. Citing the ruling of this Court in People v. Bitdu,10 the trial court further ruled that even if the private complainant had known that Eduardo had been previously married, the latter would still be criminally liable for bigamy. Eduardo appealed the decision to the CA. He alleged that he was not criminally liable for bigamy because when he married the private complainant, he did so in good faith and without any malicious intent. He maintained that at the time that he married the private complainant, he was of the honest belief that his first marriage no longer subsisted. He insisted that conformably to Article 3 of the Revised Penal Code, there must be malice for one to be criminally liable for a felony. He was not motivated by malice in marrying the private complainant because he did so only out of his overwhelming desire to have a fruitful marriage. He posited that the trial court should have taken into account Article 390 of the New Civil Code. To support his view, the appellant cited the rulings of this Court in United States v. Pealosa11 and Manahan, Jr. v. Court of Appeals.12 The Office of the Solicitor General (OSG) averred that Eduardos defense of good faith and reliance on the Courts ruling inUnited States v. Enriquez13 were misplaced; what is applicable is Article 41 of the Family Code, which amended Article 390 of the Civil Code. Citing the ruling of this Court in Republic v. Nolasco,14 the OSG further posited that as provided in Article 41 of the Family Code, there is a need for a judicial declaration of presumptive death of the absent spouse to enable the present spouse to marry. Even assuming that the first marriage was void, the parties thereto should not be permitted to judge for themselves the nullity of the marriage; the matter should be submitted to the proper court for resolution. Moreover, the OSG maintained, the private complainants knowledge of the first marriage would not afford any relief since bigamy is an offense against the State and not just against the private complainant. However, the OSG agreed with the appellant that the penalty imposed by the trial court was erroneous and sought the affirmance of the decision appealed from with modification. On June 18, 2004, the CA rendered judgment affirming the decision of the RTC with modification as to the penalty of the accused. It ruled that the prosecution was able to prove all the elements of bigamy. Contrary to the contention of the appellant, Article 41 of the Family Code should apply. Before Manuel could lawfully marry the private complainant, there should have been a judicial declaration of Gaas presumptive death as the absent spouse. The appellate court cited the rulings of this

Court in Mercado v. Tan15 and Domingo v. Court of Appeals16 to support its ruling. The dispositive portion of the decision reads: WHEREFORE, in the light of the foregoing, the Decision promulgated on July 31, 2002 is hereby MODIFIED to reflect, as it hereby reflects, that accused-appellant is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to ten (10) years of prision mayor as maximum. Said Decision isAFFIRMED in all other respects. SO ORDERED.17 Eduardo, now the petitioner, filed the instant petition for review on certiorari, insisting that: I THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT RULED THAT PETITIONERS FIRST WIFE CANNOT BE LEGALLY PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL CODE AS THERE WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE. II THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL DAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW. 18 The petitioner maintains that the prosecution failed to prove the second element of the felony, i.e., that the marriage has not been legally dissolved or, in case his/her spouse is absent, the absent spouse could not yet be presumed dead under the Civil Code. He avers that when he married Gandalera in 1996, Gaa had been "absent" for 21 years since 1975; under Article 390 of the Civil Code, she was presumed dead as a matter of law. He points out that, under the first paragraph of Article 390 of the Civil Code, one who has been absent for seven years, whether or not he/she is still alive, shall be presumed dead for all purposes except for succession, while the second paragraph refers to the rule on legal presumption of death with respect to succession. The petitioner asserts that the presumptive death of the absent spouse arises by operation of law upon the satisfaction of two requirements: the specified period and the present spouses reasonable belief that the absentee is dead. He insists that he was able to prove that he had not heard from his first wife since 1975 and that he had no knowledge of her whereabouts or whether she was still alive; hence, under Article 41 of the Family Code, the presumptive death of Gaa had arisen by operation of law, as the two requirements of Article 390 of the Civil Code are present. The petitioner concludes that he should thus be acquitted of the crime of bigamy. The petitioner insists that except for the period of absences provided for in Article 390 of the Civil Code, the rule therein on legal presumptions remains valid and effective. Nowhere under Article 390 of the Civil Code does it require that there must first be a judicial declaration of death before the rule on presumptive death would apply. He further asserts that contrary to the rulings of the trial and appellate courts, the requirement of a judicial declaration of presumptive death under Article 41 of the Family Code is only a requirement for the validity of the subsequent or second marriage. The petitioner, likewise, avers that the trial court and the CA erred in awarding moral damages in favor of the private complainant. The private complainant was a "GRO" before he married her, and even knew that he was already married. He genuinely loved and took care of her and gave her financial support. He also pointed out that she had an illicit relationship with a lover whom she brought to their house. In its comment on the petition, the OSG maintains that the decision of the CA affirming the petitioners conviction is in accord with the law, jurisprudence and the evidence on record. To bolster its claim, the OSG cited the ruling of this Court in Republic v. Nolasco.19 The petition is denied for lack of merit. Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads: Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. The provision was taken from Article 486 of the Spanish Penal Code, to wit:

El que contrajere Segundo o ulterior matrimonio sin hallarse legtimamente disuelto el anterior, ser castigado con la pena de prision mayor. xxx The reason why bigamy is considered a felony is to preserve and ensure the juridical tie of marriage established by law. 20The phrase "or before the absent spouse had been declared presumptively dead by means of a judgment rendered in the proper proceedings" was incorporated in the Revised Penal Code because the drafters of the law were of the impression that "in consonance with the civil law which provides for the presumption of death after an absence of a number of years,the judicial declaration of presumed death like annulment of marriage should be a justification for bigamy."21 For the accused to be held guilty of bigamy, the prosecution is burdened to prove the felony: (a) he/she has been legally married; and (b) he/she contracts a subsequent marriage without the former marriage having been lawfully dissolved. The felony is consummated on the celebration of the second marriage or subsequent marriage. 22 It is essential in the prosecution for bigamy that the alleged second marriage, having all the essential requirements, would be valid were it not for the subsistence of the first marriage.23 Viada avers that a third element of the crime is that the second marriage must be entered into with fraudulent intent (intencion fraudulente) which is an essential element of a felony by dolo.24 On the other hand, Cuello Calon is of the view that there are only two elements of bigamy: (1) the existence of a marriage that has not been lawfully dissolved; and (2) the celebration of a second marriage. It does not matter whether the first marriage is void or voidable because such marriages have juridical effects until lawfully dissolved by a court of competent jurisdiction. 25 As the Court ruled in Domingo v. Court of Appeals26 and Mercado v. Tan,27 under the Family Code of the Philippines, the judicial declaration of nullity of a previous marriage is a defense. In his commentary on the Revised Penal Code, Albert is of the same view as Viada and declared that there are three (3) elements of bigamy: (1) an undissolved marriage; (2) a new marriage; and (3) fraudulent intention constituting the felony of the act.28 He explained that: This last element is not stated in Article 349, because it is undoubtedly incorporated in the principle antedating all codes, and, constituting one of the landmarks of our Penal Code, that, where there is no willfulness there is no crime. There is no willfulness if the subject believes that the former marriage has been dissolved; and this must be supported by very strong evidence, and if this be produced, the act shall be deemed not to constitute a crime. Thus, a person who contracts a second marriage in the reasonable and well-founded belief that his first wife is dead, because of the many years that have elapsed since he has had any news of her whereabouts, in spite of his endeavors to find her, cannot be deemed guilty of the crime of bigamy, because there is no fraudulent intent which is one of the essential elements of the crime.29 As gleaned from the Information in the RTC, the petitioner is charged with bigamy, a felony by dolo (deceit). Article 3, paragraph 2 of the Revised Penal Code provides that there is deceit when the act is performed with deliberate intent. Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as an intentional felony, it is deemed voluntary.30 Although the words "with malice" do not appear in Article 3 of the Revised Penal Code, such phrase is included in the word "voluntary."31 Malice is a mental state or condition prompting the doing of an overt act without legal excuse or justification from which another suffers injury.32 When the act or omission defined by law as a felony is proved to have been done or committed by the accused, the law presumes it to have been intentional.33 Indeed, it is a legal presumption of law that every man intends the natural or probable consequence of his voluntary act in the absence of proof to the contrary, and such presumption must prevail unless a reasonable doubt exists from a consideration of the whole evidence.34 For one to be criminally liable for a felony by dolo, there must be a confluence of both an evil act and an evil intent. Actus non facit reum, nisi mens sit rea.35 In the present case, the prosecution proved that the petitioner was married to Gaa in 1975, and such marriage was not judicially declared a nullity; hence, the marriage is presumed to subsist. 36 The prosecution also proved that the petitioner married the private complainant in 1996, long after the effectivity of the Family Code. The petitioner is presumed to have acted with malice or evil intent when he married the private complainant. As a general rule, mistake of fact or good faith of the accused is a valid defense in a prosecution for a felony by dolo; such defense negates malice or criminal intent. However, ignorance of the law is not an excuse because everyone is presumed to know the law. Ignorantia legis neminem excusat. It was the burden of the petitioner to prove his defense that when he married the private complainant in 1996, he was of the well-grounded belief that his first wife was already dead, as he had not heard from her for more than 20 years since 1975. He should have adduced in evidence a decision of a competent court declaring the presumptive death of his first wife as required by Article 349 of the Revised Penal Code, in relation to Article 41 of the Family Code. Such judicial declaration also constitutes proof that the petitioner acted in good faith, and would negate criminal intent on his part when he married the private complainant and, as a consequence, he could not be held guilty of bigamy in such case. The petitioner, however, failed to discharge his burden.

The phrase "or before the absent spouse has been declared presumptively dead by means of a judgment rendered on the proceedings" in Article 349 of the Revised Penal Code was not an aggroupment of empty or useless words. The requirement for a judgment of the presumptive death of the absent spouse is for the benefit of the spouse present, as protection from the pains and the consequences of a second marriage, precisely because he/she could be charged and convicted of bigamy if the defense of good faith based on mere testimony is found incredible. The requirement of judicial declaration is also for the benefit of the State. Under Article II, Section 12 of the Constitution, the "State shall protect and strengthen the family as a basic autonomous social institution." Marriage is a social institution of the highest importance. Public policy, good morals and the interest of society require that the marital relation should be surrounded with every safeguard and its severance only in the manner prescribed and the causes specified by law. 37 The laws regulating civil marriages are necessary to serve the interest, safety, good order, comfort or general welfare of the community and the parties can waive nothing essential to the validity of the proceedings. A civil marriage anchors an ordered society by encouraging stable relationships over transient ones; it enhances the welfare of the community. In a real sense, there are three parties to every civil marriage; two willing spouses and an approving State. On marriage, the parties assume new relations to each other and the State touching nearly on every aspect of life and death. The consequences of an invalid marriage to the parties, to innocent parties and to society, are so serious that the law may well take means calculated to ensure the procurement of the most positive evidence of death of the first spouse or of the presumptive death of the absent spouse38 after the lapse of the period provided for under the law. One such means is the requirement of the declaration by a competent court of the presumptive death of an absent spouse as proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the death of the first spouse. Indeed, "men readily believe what they wish to be true," is a maxim of the old jurists. To sustain a second marriage and to vacate a first because one of the parties believed the other to be dead would make the existence of the marital relation determinable, not by certain extrinsic facts, easily capable of forensic ascertainment and proof, but by the subjective condition of individuals. 39 Only with such proof can marriage be treated as so dissolved as to permit second marriages. 40 Thus, Article 349 of the Revised Penal Code has made the dissolution of marriage dependent not only upon the personal belief of parties, but upon certain objective facts easily capable of accurate judicial cognizance,41 namely, a judgment of the presumptive death of the absent spouse. The petitioners sole reliance on Article 390 of the Civil Code as basis for his acquittal for bigamy is misplaced. Articles 390 and 391 of the Civil Code provide Art. 390. After an absence of seven years, it being unknown whether or not, the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. The presumption of death of the spouse who had been absent for seven years, it being unknown whether or not the absentee still lives, is created by law and arises without any necessity of judicial declaration. 42 However, Article 41 of the Family Code, which amended the foregoing rules on presumptive death, reads: Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Court for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.43

With the effectivity of the Family Code, 44 the period of seven years under the first paragraph of Article 390 of the Civil Code was reduced to four consecutive years. Thus, before the spouse present may contract a subsequent marriage, he or she must institute summary proceedings for the declaration of the presumptive death of the absentee spouse, 45 without prejudice to the effect of the reappearance of the absentee spouse. As explained by this Court in Armas v. Calisterio:46 In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may exceptionally be considered valid, the following conditions must concur, viz.: (a) The prior spouse of the contracting party must have been absent for four consecutive years, or two years where there is danger of death under the circumstances stated in Article 391 of the Civil Code at the time of disappearance; (b) the spouse present has a well-founded belief that the absent spouse is already dead; and (c) there is, unlike the old rule, a judicial declaration of presumptive death of the absentee for which purpose the spouse present can institute a summary proceeding in court to ask for that declaration. The last condition is consistent and in consonance with the requirement of judicial intervention in subsequent marriages as so provided in Article 41, in relation to Article 40, of the Family Code. The Court rejects petitioners contention that the requirement of instituting a petition for declaration of presumptive death under Article 41 of the Family Code is designed merely to enable the spouse present to contract a valid second marriage and not for the acquittal of one charged with bigamy. Such provision was designed to harmonize civil law and Article 349 of the Revised Penal Code, and put to rest the confusion spawned by the rulings of this Court and comments of eminent authorities on Criminal Law. As early as March 6, 1937, this Court ruled in Jones v. Hortiguela47 that, for purposes of the marriage law, it is not necessary to have the former spouse judicially declared an absentee before the spouse present may contract a subsequent marriage. It held that the declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse had been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage. 48 In In Re Szatraw,49 the Court declared that a judicial declaration that a person is presumptively dead, because he or she had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final; and that proof of actual death of the person presumed dead being unheard from in seven years, would have to be made in another proceeding to have such particular fact finally determined. The Court ruled that if a judicial decree declaring a person presumptively dead because he or she had not been heard from in seven years cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken, for such presumption is still disputable and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner. The Court stated that it should not waste its valuable time and be made to perform a superfluous and meaningless act.50 The Court also took note that a petition for a declaration of the presumptive death of an absent spouse may even be made in collusion with the other spouse. In Lukban v. Republic of the Philippines,51 the Court declared that the words "proper proceedings" in Article 349 of the Revised Penal Code can only refer to those authorized by law such as Articles 390 and 391 of the Civil Code which refer to the administration or settlement of the estate of a deceased person. In Gue v. Republic of the Philippines,52 the Court rejected the contention of the petitioner therein that, under Article 390 of the Civil Code, the courts are authorized to declare the presumptive death of a person after an absence of seven years. The Court reiterated its rulings in Szatraw, Lukban andJones. Former Chief Justice Ramon C. Aquino was of the view that "the provision of Article 349 or "before the absent spouse has been declared presumptively dead by means of a judgment reached in the proper proceedings" is erroneous and should be considered as not written. He opined that such provision presupposes that, if the prior marriage has not been legally dissolved and the absent first spouse has not been declared presumptively dead in a proper court proceedings, the subsequent marriage is bigamous. He maintains that the supposition is not true. 53 A second marriage is bigamous only when the circumstances in paragraphs 1 and 2 of Article 83 of the Civil Code are not present. 54 Former Senator Ambrosio Padilla was, likewise, of the view that Article 349 seems to require judicial decree of dissolution or judicial declaration of absence but even with such decree, a second marriage in good faith will not constitute bigamy. He posits that a second marriage, if not illegal, even if it be annullable, should not give rise to bigamy.55 Former Justice Luis B. Reyes, on the other hand, was of the view that in the case of an absent spouse who could not yet be presumed dead according to the Civil Code, the spouse present cannot be charged and convicted of bigamy in case he/she contracts a second marriage.56 The Committee tasked to prepare the Family Code proposed the amendments of Articles 390 and 391 of the Civil Code to conform to Article 349 of the Revised Penal Code, in that, in a case where a spouse is absent for the requisite period, the present spouse may contract a subsequent marriage only after securing a judgment declaring the presumptive death of the absent spouse to avoid being charged and convicted of bigamy; the present spouse will have to adduce evidence that he had a well-founded belief that the absent spouse was already dead. 57 Such judgment is proof of the good faith of the present spouse who contracted a subsequent marriage; thus, even if the present spouse is later charged with bigamy if the absentee spouse reappears, he cannot be convicted of the crime. As explained by former Justice Alicia Sempio-Diy: Such rulings, however, conflict with Art. 349 of the Revised Penal Code providing that the present spouse must first ask for a declaration of presumptive death of the absent spouse in order not to be guilty of bigamy in case he or she marries again.

The above Article of the Family Code now clearly provides that for the purpose of the present spouse contracting a second marriage, he or she must file a summary proceeding as provided in the Code for the declaration of the presumptive death of the absentee, without prejudice to the latters reappearance. This provision is intended to protect the present spouse from a criminal prosecution for bigamy under Art. 349 of the Revised Penal Code because with the judicial declaration that the missing spouses presumptively dead, the good faith of the present spouse in contracting a second marriage is already established.58 Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of Justice) who wrote that things are now clarified. He says judicial declaration of presumptive death is now authorized for purposes of remarriage. The present spouse must institute a summary proceeding for declaration of presumptive death of the absentee, where the ordinary rules of procedure in trial will not be followed. Affidavits will suffice, with possible clarificatory examinations of affiants if the Judge finds it necessary for a full grasp of the facts. The judgment declaring an absentee as presumptively dead is without prejudice to the effect of reappearance of the said absentee. Dean Pineda further states that before, the weight of authority is that the clause "before the absent spouse has been declared presumptively dead x x x" should be disregarded because of Article 83, paragraph 3 of the Civil Code. With the new law, there is a need to institute a summary proceeding for the declaration of the presumptive death of the absentee, otherwise, there is bigamy.59 According to Retired Supreme Court Justice Florenz D. Regalado, an eminent authority on Criminal Law, in some cases where an absentee spouse is believed to be dead, there must be a judicial declaration of presumptive death, which could then be made only in the proceedings for the settlement of his estate. 60 Before such declaration, it was held that the remarriage of the other spouse is bigamous even if done in good faith.61 Justice Regalado opined that there were contrary views because of the ruling in Jones and the provisions of Article 83(2) of the Civil Code, which, however, appears to have been set to rest by Article 41 of the Family Code, "which requires a summary hearing for the declaration of presumptive death of the absent spouse before the other spouse can remarry." Under Article 238 of the Family Code, a petition for a declaration of the presumptive death of an absent spouse under Article 41 of the Family Code may be filed under Articles 239 to 247 of the same Code.62 On the second issue, the petitioner, likewise, faults the trial court and the CA for awarding moral damages in favor of the private complainant. The petitioner maintains that moral damages may be awarded only in any of the cases provided in Article 2219 of the Civil Code, and bigamy is not one of them. The petitioner asserts that the appellate court failed to apply its ruling in People v. Bondoc,63 where an award of moral damages for bigamy was disallowed. In any case, the petitioner maintains, the private complainant failed to adduce evidence to prove moral damages. The appellate court awarded moral damages to the private complainant on its finding that she adduced evidence to prove the same. The appellate court ruled that while bigamy is not included in those cases enumerated in Article 2219 of the Civil Code, it is not proscribed from awarding moral damages against the petitioner. The appellate court ruled that it is not bound by the following ruling in People v. Bondoc: ... Pero si en dichos asuntos se adjudicaron daos, ello se debi indedublamente porque el articulo 2219 del Cdigo Civil de Filipinas autoriza la adjudicacin de daos morales en los delitos de estupro, rapto, violacin, adulterio o concubinato, y otros actos lascivos, sin incluir en esta enumeracin el delito de bigamia. No existe, por consiguiente, base legal para adjudicar aqu los daos de P5,000.00 arriba mencionados.64 The OSG posits that the findings and ruling of the CA are based on the evidence and the law. The OSG, likewise, avers that the CA was not bound by its ruling in People v. Rodeo. The Court rules against the petitioner. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission. 65 An award for moral damages requires the confluence of the following conditions: first, there must be an injury, whether physical, mental or psychological, clearly sustained by the claimant; second, there must be culpable act or omission factually established; third, the wrongful act or omission of the defendant is the proximate cause of the injury sustained by the claimant; andfourth, the award of damages is predicated on any of the cases stated in Article 2219 or Article 2220 of the Civil Code.66 Moral damages may be awarded in favor of the offended party only in criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code and analogous cases, viz.: Art. 2219. Moral damages may be recovered in the following and analogous cases.

(1) A criminal offense resulting in physical injuries; (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4) Adultery or concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned in article 309; (10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34 and 35. The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages. The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article in the order named. Thus, the law does not intend that moral damages should be awarded in all cases where the aggrieved party has suffered mental anguish, fright, moral anxieties, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury arising out of an act or omission of another, otherwise, there would not have been any reason for the inclusion of specific acts in Article 221967 and analogous cases (which refer to those cases bearing analogy or resemblance, corresponds to some others or resembling, in other respects, as in form, proportion, relation, etc.)68 Indeed, bigamy is not one of those specifically mentioned in Article 2219 of the Civil Code in which the offender may be ordered to pay moral damages to the private complainant/offended party. Nevertheless, the petitioner is liable to the private complainant for moral damages under Article 2219 in relation to Articles 19, 20 and 21 of the Civil Code. According to Article 19, "every person must, in the exercise of his rights and in the performance of his act with justice, give everyone his due, and observe honesty and good faith." This provision contains what is commonly referred to as the principle of abuse of rights, and sets certain standards which must be observed not only in the exercise of ones rights but also in the performance of ones duties. The standards are the following: act with justice; give everyone his due; and observe honesty and good faith. The elements for abuse of rights are: (a) there is a legal right or duty; (b) exercised in bad faith; and (c) for the sole intent of prejudicing or injuring another.69 Article 20 speaks of the general sanctions of all other provisions of law which do not especially provide for its own sanction. When a right is exercised in a manner which does not conform to the standards set forth in the said provision and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be responsible. 70 If the provision does not provide a remedy for its violation, an action for damages under either Article 20 or Article 21 of the Civil Code would be proper. Article 20 provides that "every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same." On the other hand, Article 21 provides that "any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damages." The latter provision is adopted to remedy "the countless gaps in the statutes which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury should vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to prove for specifically in the statutes." Whether or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 of the Civil Code or other applicable provisions of law depends upon the circumstances of each case.71 In the present case, the petitioner courted the private complainant and proposed to marry her. He assured her that he was single. He even brought his parents to the house of the private complainant where he and his parents made the same assurance that he was single. Thus, the private complainant agreed to marry the petitioner, who even stated in the certificate of marriage that he was single. She lived with the petitioner and dutifully performed her duties as his wife, believing all the while that he was her lawful husband. For two years or so until the petitioner heartlessly abandoned her, the private complainant had no inkling that he was already married to another before they were married.

Thus, the private complainant was an innocent victim of the petitioners chicanery and heartless deception, the fraud consisting not of a single act alone, but a continuous series of acts. Day by day, he maintained the appearance of being a lawful husband to the private complainant, who changed her status from a single woman to a married woman, lost the consortium, attributes and support of a single man she could have married lawfully and endured mental pain and humiliation, being bound to a man who it turned out was not her lawful husband.72 The Court rules that the petitioners collective acts of fraud and deceit before, during and after his marriage with the private complainant were willful, deliberate and with malice and caused injury to the latter. That she did not sustain any physical injuries is not a bar to an award for moral damages. Indeed, in Morris v. Macnab,73 the New Jersey Supreme Court ruled: xxx The defendant cites authorities which indicate that, absent physical injuries, damages for shame, humiliation, and mental anguish are not recoverable where the actor is simply negligent. See Prosser, supra, at p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all recognize that where the wrong is willful rather than negligent, recovery may be had for the ordinary, natural, and proximate consequences though they consist of shame, humiliation, and mental anguish. See Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct. 1936); Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579, 591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here the defendants conduct was not merely negligent, but was willfully and maliciously wrongful. It was bound to result in shame, humiliation, and mental anguish for the plaintiff, and when such result did ensue the plaintiff became entitled not only to compensatory but also to punitive damages. See Spiegel v. Evergreen Cemetery Co., supra; Kuzma v Millinery Workers, etc., Local 24, supra. CF. Note, "Exemplary Damages in the Law of Torts," 70 Harv. L. Rev. 517 (1957). The plaintiff testified that because of the defendants bigamous marriage to her and the attendant publicity she not only was embarrassed and "ashamed to go out" but "couldnt sleep" but "couldnt eat," had terrific headaches" and "lost quite a lot of weight." No just basis appears for judicial interference with the jurys reasonable allowance of $1,000 punitive damages on the first count. See Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. Div.74 1955). The Court thus declares that the petitioners acts are against public policy as they undermine and subvert the family as a social institution, good morals and the interest and general welfare of society. Because the private complainant was an innocent victim of the petitioners perfidy, she is not barred from claiming moral damages. Besides, even considerations of public policy would not prevent her from recovery. As held in Jekshewitz v. Groswald:75 Where a person is induced by the fraudulent representation of another to do an act which, in consequence of such misrepresentation, he believes to be neither illegal nor immoral, but which is in fact a criminal offense, he has a right of action against the person so inducing him for damages sustained by him in consequence of his having done such act. Burrows v. Rhodes, [1899] 1 Q.B. 816. In Cooper v. Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a false representation by the defendant that he was divorced from his former wife, whereby the plaintiff was induced to marry him, gave her a remedy in tort for deceit. It seems to have been assumed that the fact that she had unintentionally violated the law or innocently committed a crime by cohabiting with him would be no bar to the action, but rather that it might be a ground for enhancing her damages. The injury to the plaintiff was said to be in her being led by the promise to give the fellowship and assistance of a wife to one who was not her husband and to assume and act in a relation and condition that proved to be false and ignominious. Damages for such an injury were held to be recoverable in Sherman v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339, 343, 8 Am. Rep. 336. Furthermore, in the case at bar the plaintiff does not base her cause of action upon any transgression of the law by herself but upon the defendants misrepresentation. The criminal relations which followed, innocently on her part, were but one of the incidental results of the defendants fraud for which damages may be assessed. [7] Actions for deceit for fraudulently inducing a woman to enter into the marriage relation have been maintained in other jurisdictions. Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of public policy would not prevent recovery where the circumstances are such that the plaintiff was conscious of no moral turpitude, that her illegal action was induced solely by the defendants misrepresentation, and that she does not base her cause of action upon any transgression of the law by herself. Such considerations distinguish this case from cases in which the court has refused to lend its aid to the enforcement of a contract illegal on its face or to one who has consciously and voluntarily become a party to an illegal act upon which the cause of action is founded. Szadiwicz v. Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49 A. L. R. 958.76 Considering the attendant circumstances of the case, the Court finds the award of P200,000.00 for moral damages to be just and reasonable. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision of the Court of Appeals is AFFIRMED. Costs against the petitioner. SO ORDERED.

G.R. No. 142773

January 28, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARLON DELIM, LEON DELIM, MANUEL DELIM alias "BONG" (At Large), ROBERT DELIM (At Large), and RONALD DELIM alias "BONG", accused-appellants. CALLEJO, SR., J.: Before the Court on automatic review is the Decision, 1 dated January 14, 2000, of the Regional Trial Court, Branch 46, Urdaneta City, finding accused appellants Marlon Delim, Leon Delim and Ronald Delim guilty beyond reasonable doubt of the crime of murder and sentencing them to suffer the supreme penalty of death. The court also ordered accused-appellants to pay, jointly and severally, the heirs of the victim the sums of P75,000.00 as moral damages and P25,000.00 as exemplary damages. Accused-appellants Marlon, Ronald and Leon, together with Manuel alias "Bong" and Robert, all surnamed Delim, were indicted for murder under an Information dated May 4, 1999 which reads: "That on or about January 23, 1999, in the evening at Brgy. Bila, Sison, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused, armed with short firearms barged-in and entered the house of Modesto Delim and once inside with intent to kill, treachery, evident premedidation (sic), conspiring with one another, did then and there, wilfully, unlawfully and feloniously grab, hold, hogtie, gag with a piece of cloth, brought out and abduct Modesto Delim, accused Leon Delim and Manuel Delim stayed in the house guarded and prevented the wife and son of Modesto Delim from helping the latter, thereafter with abuse of superior strength stabbed and killed said Modesto Delim, to the damage and prejudice of his heirs. CONTRARY to Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659."2 Only accused-appellants Marlon (Bongbong), Leon and Ronald, all surnamed Delim, were apprehended. Accused Robert and Manuel remain at-large. At their arraignment, Marlon, Ronald and Leon, with the assistance of their counsel, pleaded not guilty to the charge. At the trial, the prosecution established the following relevant facts3 Marlon, Manuel and Robert Delim are brothers. They are the uncles of Leon Delim and Ronald Delim. Modesto Manalo Bantas, the victim, was an Igorot and a carpenter. He took the surname Delim after he was "adopted" by the father of Marlon, Manuel and Robert. However, Modesto's wife, Rita, an illiterate, and their 16-year old son, Randy, continued using Manalo Bantas as their surname. Modesto, Rita and Randy considered Marlon, Robert, Ronald, Manuel and Leon as their relatives. Manuel and Leon were the neighbors of Modesto. Marlon, Robert and Ronald used to visit Modesto and his family. Modesto and his family and the Delim kins resided in Barangay Bila, Sison, Pangasinan. On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and Randy were preparing to have their supper in their home. Joining them were Modesto and Rita's two young grandchildren, aged 5 and 7 years old. They were about to eat their dinner when Marlon, Robert and Ronald suddenly barged into the house and closed the door. Each of the three intruders was armed with a short handgun. Marlon poked his gun at Modesto while Robert and Ronald simultaneously grabbed and hog-tied the victim. A piece of cloth was placed in the mouth of Modesto.4 Marlon, Robert and Ronald herded Modesto out of the house on their way towards the direction of Paldit, Sison, Pangasinan. Rita and Randy were warned by the intruders not to leave the house. Leon and Manuel, who were also armed with short handguns, stayed put by the door to the house of Modesto and ordered Rita and Randy to stay where they were. Leon and Manuel left the house of Modesto only at around 7:00 a.m. the following day, January 24, 1999. As soon as Leon and Manuel had left, Randy rushed to the house of his uncle, Darwin Nio, at Sitio Labayog, informed the latter of the incident the night before and sought his help for the retrieval of Modesto. Randy was advised to report the matter to the police authorities. However, Randy opted to first look for his father. He and his other relatives scoured the vicinity to locate Modesto to no avail. They proceeded to Paldit, Sison, Pangasinan, around 200 meters away from Modesto's house, to locate Modesto but failed to find him there. On January 25, 1999, Randy and his relatives returned to the housing project in Paldit, Sison, Pangasinan to locate Modesto but again failed to find him there. On January 26, 1999, Randy reported the incident to the police authorities. At around 3:00 in the afternoon of January 27, 1999, Randy, in the company of his relatives, Nida Pucal, Pepito Pucal, Bernard Osias and Daniel Delim, returned to the housing project in Paldit, Sison, Pangasinan and this time they found Modesto under thick bushes in a grassy area. He was already dead. The cadaver was bloated and in the state of

decomposition. It exuded a bad odor. Tiny white worms swarmed over and feasted on the cadaver. Randy and his relatives immediately rushed to the police station to report the incident and to seek assistance. When informed of the discovery of Modesto's cadaver, the local chief of police and SPO2 Jovencio Fajarito and other policemen rushed to the scene and saw the cadaver under the thick bushes. Pictures were taken of the cadaver. 5 Rita and Randy divulged to the police investigators the names and addresses of Marlon, Ronald, Robert, Leon and Manuel, whom they claimed were responsible for the death of Modesto. Rita and Randy were at a loss why the five malefactors seized Modesto and killed him. Rita and Randy gave their respective sworn statements to the police investigators. 6 Police authorities proceeded to arrest Marlon, Ronald, Robert, Manuel and Leon but failed to find them in their respective houses. The police officers scoured the mountainous parts of Barangays Immalog and Labayog to no avail. The cadaver was autopsied by Dr. Maria Fe L. De Guzman who prepared her autopsy report, which reads: "SIGNIFICANT EXTERNAL FINDINGS: Body both upper extremities are flexed both lower extremities are flexed (+) body decomposition (+) worms coming out from injuries

10 x 10 ml. GSW, pre-auricular area, right 20 x 20 ml. GSW, mandibular areas, right 10 x 10 ml. GSW, maxillary area, right 10 x 10 ml. GSW, below middle nose, directed upward (POE) 30 x 40 ml. GSW, mid parieto occipital area (POEx) 2 x 1 cms. lacerated wound, right cheek 1 x 1 cm. stabbed wound, axillary area, left 1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm 1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm 1 x 1 cm. stabbed wound medial aspect D/3rd, left arm #3; 1 x 1 cm. in line with each other, stabbed would, medial aspect, M/3rd, left forearm 1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm 10 x 6 cms. Inflamed scrotum penis inflamed no significant internal findings GUN SHOT WOUND, HEAD."7

SIGNIFICANT INTERNAL FINDINGS: CAUSE OF DEATH:

The stab wounds sustained by Modesto on his left arm and forearm were defensive wounds. The police investigators were able to confirm that Marlon, Ronald, Robert, Leon and Manuel had no licenses for their firearms.8 Records of the PNP Criminal Investigation and Detection Group in Baguio City show that Marlon had pending cases for robbery in the Regional Trial Court of Baguio City in Criminal Case No. 16193-R, and for robbery in band in Criminal Cases Nos. 9801 and 9802 pending with the Regional Trial Court in Urdaneta, Pangasinan.9 To exculpate themselves, Marlon, Ronald and Leon interposed denial and alibi.10 Ronald claimed that on January 23, 1999, he, his wife and children, his mother, his brothers and sisters were in their house at Asan Norte, Sison, Pangasinan about two kilometers away from Modesto's house. He denied having been in the house of Modesto on January 23, 1999 and of abducting and killing him. He theorized that Rita and Randy falsely implicated him upon the coaching of Melchor Javier who allegedly had a quarrel with him concerning politics.

Leon for his part averred that on January 23, 1999, he was in the house of his sister, Hermelita Estabillo at No. 55-B, Salet, Laoag City, Ilocos Norte where he had been living since 1997 after leaving Asan Norte, Sison, Pangasinan. Since then, he had been working for Sally Asuncion at a hollow-block factory in that city where he was a stay-in worker. Sally Asuncion corroborated Leon's alibi. She testified that Leon Delim never went home to his hometown in Pangasinan during his employment. His sister, Hermelita Estabillo, likewise averred that on January 23, 1999, his brother was at her house to give her his laundry. She claimed that the distance between Laoag City and Bila, Sison, Pangasinan can be traversed in six hours by bus. Leon presented a Barangay Certificate to prove that he was a resident of Laoag City from January 1998 up to February 1999.11 Marlon asserted that he was on vacation in Dumaguete City from December 26, 1998 up to January 29, 1999. During his stay there, he lived with his sister, Francisca Delim. Upon his return to Manila on January 29, 1999, he immediately proceeded to Baguio to visit his cousin. Marlon denied setting foot in Bila, Sison, Pangasinan after his sojourn in Dumaguete City. The trial court rendered judgment finding accused-appellants guilty of murder. The dispositive portion of the trial court's decision reads: "WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable doubt is hereby rendered against Ronald Delim, Marlon Delim and Leon Delim (for) the commission of Aggravated Murder, an offense defined and penalized under Article 248 of the Revised Penal Code, as amended by R.A. 7659 and the Court sentences Marlon Delim, Ronald Delim and Leon Delim to suffer the penalty of DEATH, to be implemented in the manner as provided for by law; the Court likewise orders the accused, jointly and solidarily, to indemnify the heirs of Modesto Delim the sum of P75,000.00 as moral damages, plus the amount of P25,000.00 as exemplary damages. The Branch Clerk of Court is hereby ordered to transmit the entire records of this case to the Honorable Supreme Court, and to prepare the mittimus fifteen (15) days from date of promulgation. The Jail Warden, Bureau of Jail Management and Penology, Urdaneta District Jail, Urdaneta City is hereby ordered to transmit the persons of Marlon, Ronald and Leon, all surnamed Delim to the New Bilibid Prisons, Muntinlupa City, fifteen days from receipt of this decision. SO ORDERED."12 The trial court appreciated treachery as a qualifying circumstance and of taking advantage of superior strength, nighttime and use of unlicensed firearms as separate of aggravating circumstances in the commission of the crime. Marlon, Ronald and Leon, in their appeal brief, assail the decision alleging that: "I THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER. II THE COURT A QUO GRAVELY ERRED IN FINDING THAT CONSPIRACY EXISTED IN THE CASE AT BAR. III THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO ACCUSED-APPELLANTS' DEFENSE OF ALIBI."13 Before resolving the merits of the case at bar, we first resolve the matter of whether the crime charged in the Information is murder or kidnapping. During the deliberation, some distinguished members of the Court opined that under the Information, Marlon, Ronald and Leon are charged with kidnapping under Article 267 of the Revised Penal Code and not with murder in its aggravated form in light of the allegation therein that the accused " willfully, unlawfully and feloniously grab(bed), h(e)ld, hogtie(d), gag(ged), with a piece of cloth, brought out and abduct(ed) Modesto Delim (while) Leon Delim and Manuel Delim stayed in the house (and) guarded and prevented the wife and son of Modesto Delim from helping the latter ." They submit that the foregoing allegation constitutes the act of deprivation of liberty of the victim, the gravamen in the crime of kidnapping. They contend that the fact that the Information went further to charge accused with the killing of the victim should be of no moment, the real nature of the criminal charge being determined not from the caption or the preamble of the Information nor from the specification of the law alleged to have been violated these being conclusions of law but by the actual recital of facts in the complaint or information. They further submit that since the prosecution failed to prove motive on the part of Marlon, Ronald and Leon to kill Modesto, they are not criminally liable for the death of the victim but only for kidnapping the victim.

It bears stressing that in determining what crime is charged in an information, the material inculpatory facts recited therein describing the crime charged in relation to the penal law violated are controlling. Where the specific intent of the malefactor is determinative of the crime charged such specific intent must be alleged in the information and proved by the prosecution . A decade ago, this Court held in People v. Isabelo Puno, et al.,14 that for kidnapping to exist, there must be indubitable proof that the actual specific intent of the malefactor is to deprive the offended party of his liberty and not where such restraint of his freedom of action is merely an incident in the commission of another offense primarily intended by the malefactor. This Court further held: "x x x Hence, as early as United States vs. Ancheta, and consistently reiterated thereafter, it has been held that the detention and/or forcible taking away of the victims by the accused, even for an appreciable period of time but for the primary and ultimate purpose of killing them, holds the offenders liable for taking their lives or such other offenses they committed in relation thereto, but the incidental deprivation of the victims' liberty does not constitute kidnapping or serious illegal detention."15 If the primary and ultimate purpose of the accused is to kill the victim, the incidental deprivation of the victim's liberty does not constitute the felony of kidnapping but is merely a preparatory act to the killing, and hence, is merged into, or absorbed by, the killing of the victim.16 The crime committed would either be homicide or murder. What is primordial then is the specific intent of the malefactors as disclosed in the information or criminal complaint that is determinative of what crime the accused is charged with that of murder or kidnapping. Philippine and American penal laws have a common thread on the concept of specific intent as an essential element of specific intent crimes. Specific intent is used to describe a state of mind which exists where circumstances indicate that an offender actively desired certain criminal consequences or objectively desired a specific result to follow his act or failure to act.17 Specific intent involves a state of the mind. It is the particular purpose or specific intention in doing the prohibited act. Specific intent must be alleged in the Information and proved by the state in a prosecution for a crime requiring specific intent.18 Kidnapping and murder are specific intent crimes. Specific intent may be proved by direct evidence or by circumstantial evidence. It may be inferred from the circumstances of the actions of the accused as established by the evidence on record.19 Specific intent is not synonymous with motive. Motive generally is referred to as the reason which prompts the accused to engage in a particular criminal activity. Motive is not an essential element of a crime and hence the prosecution need not prove the same. As a general rule, proof of motive for the commission of the offense charged does not show guilt and absence of proof of such motive does not establish the innocence of accused for the crime charged such as murder. 20The history of crimes shows that murders are generally committed from motives comparatively trivial. 21 Crime is rarely rational. In murder, the specific intent is to kill the victim. In kidnapping, the specific intent is to deprive the victim of his/her liberty. If there is no motive for the crime, the accused cannot be convicted for kidnapping. 22 In kidnapping for ransom, the motive is ransom. Where accused kills the victim to avenge the death of a loved one, the motive is revenge. In this case, it is evident on the face of the Information that the specific intent of the malefactors in barging into the house of Modesto was to kill him and that he was seized precisely to kill him with the attendant modifying circumstances. The act of the malefactors of abducting Modesto was merely incidental to their primary purpose of killing him. Moreover, there is no specific allegation in the information that the primary intent of the malefactors was to deprive Modesto of his freedom or liberty and that killing him was merely incidental to kidnapping.23 Irrefragably then, the crime charged in the Information is Murder under Article 248 of the Revised Penal Code and not Kidnapping under Article 268 thereof. The threshold issue that now comes to fore is whether or not the prosecution mustered the requisite quantum of evidence to prove that Marlon, Ronald and Leon are guilty of murder. In criminal prosecutions, the prosecution is burdened to prove the guilt of the accused beyond cavil of doubt. The prosecution must rely on the strength of its own evidence and not on the weakness of the evidence of the accused. The proof against the accused must survive the test of reason; the strongest suspicion must not be permitted to sway judgment.24 In the case at bar, the prosecution was burdened to prove the corpus delicti which consists of two things: first, the criminal act and second, defendant's agency in the commission of the act.25 Wharton says that corpus delicti includes two things: first, the objective; second, the subjective element of crimes.26 In homicide (by dolo) and in murder cases, the prosecution is burdened to prove: (a) the death of the party alleged to be dead; (b) that the death was produced by the criminal act of some other than the deceased and was not the result of accident, natural cause or suicide; and (c) that defendant committed the criminal act or was in some way criminally responsible for the act which produced the death. 27 To prove the felony of homicide or murder, there must be incontrovertible evidence, direct or circumstantial, that the victim was deliberately killed (with malice); in other words, that there was intent to kill. Such evidence may consist inter alia in the use of weapons by the malefactors, the nature, location and number of wounds sustained by the victim and the words uttered by the malefactors before, at the time or immediately after the killing of the victim. If the victim dies because of a deliberate act of the malefactor, intent to kill is conclusively presumed.

The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct evidence or by circumstantial or presumptive evidence.28 In the case at bar, the prosecution adduced the requisite quantum of proof of corpus delicti. Modesto sustained five (5) gunshot wounds. He also sustained seven (7) stab wounds,29 defensive in nature. The use by the malefactors of deadly weapons, more specifically handguns and knives, in the killing of the victim as well as the nature, number and location of the wounds sustained by said victim are evidence of the intent by the malefactors to kill the victim with all the consequences flowing therefrom.30 As the State Supreme Court of Wisconsin held in Cupps v. State:31 "This rule, that every person is presumed to contemplate the ordinary and natural consequences of his own acts, is applied even in capital cases. Because men generally act deliberately and by the determination of their own will, and not from the impulse of blind passion, the law presumes that every man always thus acts, until the contrary appears. Therefore, when one man is found to have killed another, if the circumstances of the homicide do not of themselves show that it was not intended, but was accidental, it is presumed that the death of the deceased was designed by the slayer; and the burden of proof is on him to show that it was otherwise." The prosecution did not present direct evidence to prove the authors of the killing of Modesto. It relied on circumstantial evidence to discharge its burden of proving the guilt of accused-appellants of murder. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience.32 What was once a rule of account respectability is now entombed in Section 4, Rule 133 of the Revised Rules of Evidence which states that circumstantial evidence, sometimes referred to as indirect or presumptive evidence, is sufficient as anchor for a judgment of conviction if the following requisites concur: "x x x if (a) there is more than one circumstance; (b) the facts from which the inferences are derived have been established; and (c) the combination of all the circumstances is such as to warrant a finding of guilt beyond reasonable doubt."33 The prosecution is burdened to prove the essential events which constitute a compact mass of circumstantial evidence, and the proof of each being confirmed by the proof of the other, and all without exception leading by mutual support to but one conclusion: the guilt of accused for the offense charged.34 For circumstantial evidence to be sufficient to support a conviction, all the circumstances must be consistent with each other, consistent with the hypothesis that accused is guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt. 35 If the prosecution adduced the requisite circumstantial evidence to prove the guilt of accused beyond reasonable doubt, the burden of evidence shifts to the accused to controvert the evidence of the prosecution. In the present case, the prosecution mustered the requisite quantum of circumstantial evidence to prove that accusedappellants, in confabulation with their co-accused, conspired to kill and did kill Modesto: 1. Randy Bantas testified that Marlon and Ronald barged into the house of Modesto, each armed with a handgun. Marlon poked his gun on Modesto while Ronald hog-tied Modesto. They then seized Modesto and herded him out of his house: "FISCAL TOMBOC: What were you doing then at that time in your house? A Q A Q A Q A Q A Q We were eating, sir. You said we, who were your companions eating then at that time? My father, my mother and the two children and myself, sir. While taking your supper that time, do you recall if there was anything unusual that happened at that time? When we were about to start to eat three armed men entered our house. Do you know these three armed men who entered your house? Yes, sir. Who are they, name them one by one? Marlon Delim, Robert Delim and Ronald Delim. Are these three persons inside the courtroom now?

A Q A Q

Two of them, sir. Who are these two who are inside the courtroom? Marlon and Ronald, sir. Will you please stand up and point to them?

A (Witness is pointing to a person seated on the bench inside the courtroom, who, when his name was asked answered Marlon Delim. Likewise, witness is pointing unto a person seated on the bench inside the courtroom, who, when his name was asked he answered Ronald Delim). Q A You said that these two armed persons entered your house, what kind of arm were they carrying at that time? Short handgun, sir.

Q When these three armed persons whom you have mentioned, armed with short firearms, what did they do then when they entered your house? A Q A Q A They took my father, sir. Who took your father? Marlon Delim, Robert Delim and Ronald Delim, sir. When these three persons took your father, what did you do then? None, sir.

COURT: How did they get your father? A They poked a gun and brought him outside the house, sir.

FISCAL TOMBOC: Who poked a gun? A Q A Q A Marlon Delim, sir. Again, Mr. Witness, will you point to the person who poked a gun? (Witness is pointing to Malon (sic) Delim, one of the accused). After bringing your father out from your house, what transpired next? Manuel Delim and Leon Delim said, 'Stay in your house,' and guarded us.

COURT: You said your father was taken out, who? A Marlon, Robert and Ronald, sir.

FISCAL TOMBOC: Where did these three persons bring your father? A I do not know where they brought my father, sir.

COURT: Was your father taken inside your house or outside? A Q Inside our house, sir. You said that Marlon poked a gun at your father, is that correct?

A Q A

Yes, sir. What did Ronald and Robert do while Marlon was poking his gun to your father? Ronald and Robert were the ones who pulled my father out, sir."36

Randy's account of the incident was corroborated by his mother, Rita, who testified: "PROSECUTION TOMBOC: You said during the last hearing that on January 23, 1999 at around 6:30 in the evening while preparing for your supper three (3) armed men entered inside your house, who were these three (3) men who entered your house? A I know, Marlon, Bongbong and Robert, sir.

ATTY. FLORENDO: We just make of record that the witness is taking her time to answer, Your Honor. PROSECUTOR TOMBOC: You said that Marlon Delim, Robert Delim and Bongbong entered your house, are these three (3) persons who entered your house in Court now? A Q A Q A Q A They are here except the other one, sir. Will you please step down and point to the persons who entered your house? Witness is pointing to Marlon Delim, Robert Delim is not in Court and Bongbong is Ronald Delim. After these three (3) armed men entered your house, what happened then? My husband was brought out, sir. What is the name of your husband? Modesto Delim, sir."37

2. Randy said that when Marlon and Ronald barged into their house, Leon, armed with a handgun, acted as a lookout when he stood guard by the door of the house of Modesto and remained thereat until 7:00 a.m. of the next day: "FISCAL TOMBOC: When your father was pulled out from your house by these three persons, what did you and your mother do while these three persons were taking out of your house? A We did not do anything because Manuel and Leon Delim guarded us.

COURT: Where, in your house? A Yes, sir.

FISCAL TOMBOC: From that very time that your father was pulled out by these three persons Marlon, Robert and Ronal (sic), where were Leon and Manuel then? A They were at the door, sir.

COURT: Why do you know that they were guarding you? A Because they were at the door, sir.

FISCAL TOMBOC: What was their appearance that time when these two persons were guarding you, these Leon and Manuel? A Q They were armed, sir. What do you mean by armed?

A Q A Q A Q A Q

They have gun, sir. What kind of firearm? Short firearm, sir. By the way, where are these Leon and Manuel now, if you know? Leon is here, sir. About Manuel? None, sir. Will you please stand up and point at Leon, Mr. Witness?

A (Witness pointed to a person seated on the bench inside the courtroom, who when his name was asked, answered, Leon Delim)."38 3. Rita and Randy were ordered by Leon not to leave the house as Ronald and Marlon left the house with Modesto in tow. Rita and Randy were detained in their house up to 7:00 a.m. of January 24, 1999 to prevent them from seeking help from their relatives and police authorities. 4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m., the cadaver of Modesto was found under the thick bushes in a grassy area in the housing project located about 200 meters away from the house of Modesto. The cadaver exuded bad odor and was already in the state of decomposition: "Q A So what did you do then on January 27, where did you look for your father? The same place and at 3:00 o'clock P.M., we were able to find my father.

COURT: Where? A At the housing project at Paldit, Sison, Pangasinan, sir.

FISCAL TOMBOC: Do you have companions at that time when you were able to look for your father on January 27, 1999 at 3:00 o'clock P.M.? A Q A Q A Q A Yes, sir. Who? My Aunt, sir. What is the name of your Aunt? Nida Pucal, sir. Who else? Pepito Pucal, Bernard Osias and Daniel Delim, sir.

COURT: When you found your father, what was his condition? A He was dead, sir.

COURT: Go ahead. FISCAL TOMBOC: You said that he was already dead, what was his appearance then when you saw him dead?

He has bad odor, sir, in the state of decompsition (sic)."39

The testimony of Randy was corroborated by Dr. de Guzman who testified that the cadaver of Modesto was in a state of decomposition, with tiny white worms crawling from his wounds, and that his penis and scrotum were inflamed. The victim sustained five gunshot wounds and defensive wounds on the left arm and forearm: "PROS. TOMBOC: Q Will you please tell the Honorable Court your findings, Doctora?

WITNESS: A First finding: Upon seeing the cadaver, this is the position of the body, both upper extremities are flexed and both lower extremities are flexed (Nakakukot). Q A Q How many days had already elapsed when you autopsied the cadaver of the victim, Doctora? Four (4) days upon the recovery of the body, sir. And what was your findings Doctora?

A The body was already under the state of decomposition, sir, with foul odor and there were so many worms coming out from the injuries, there were tiny white worms, sir. Q What else did you observe Doctora?

A Upon seeing the cadaver I asked the relative to refer it to the NBI sir. Actually the victim was an igorot ( sic) and they have tradition that they will bury immediately. Whether they like it or not I should do it, sir. Q A What else Doctora? And the penis was inflammed (sic), the scrotum was also inflammed (sic), sir.

And for the head injuries there was 10 x 10 ml. GSW pre-auricular area, right; there was also 20 ml x 20 ml. GSW, mandibular area, right; I cannot also determine the exit. Q A So there were two (2) gunshot wounds (GSW) Doctora? Yes sir.

And there was also 10 x 10 ml. GSW, maxillary area, right; there was also 10 x 10 ml. GSW, below middle nose, directed upward (POE); and there was also 30 x 40 ml. GSW, mid parieto-occipital area (POEx). Q A How many all in all are the gunshot wound? Five (5) sir.

And also there was 2 x 1 cms. Lacerated wound, right cheek; 1 x 1 cm. stabbed wound, axillary area, left; 1 x 1 cm. stabbed wound, lateral aspect M/3rd, left arm; 1 x 1 cm. stabbed wound lateral aspect D/3rd, left arm; 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm; 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm; and #3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect, M/3rd, left forearm. Q A Q A How many stabbed wound are there Doctora? There were seven (7) stabbed wounds, sir. Those stabbed wounds were defensive wounds, Doctora? Yes sir."40

The state of decomposition of the cadaver, with tiny white worms swarming and feasting on it and the distention of his scrotum and penis are evidence that the cadaver was in the stage of putrefaction and that the victim had been dead for a period ranging from three to six days.41 Admittedly, there are variant factors determinative of the exact death of the victim. An equally persuasive authority states: "Chronological Sequence of Putrefactive Changes Occurring in Tropical Region: Time Since Death 48 hours 72 hours Condition of the Body Ova of flies seen. Trunk bloated. Face discolored and swollen. Blisters present. Moving maggots seen Whole body grossly swollen and disfigured. Hair and nails loose. Tissues soft and discolored."42

The lapse of two or three to four days from the seizure of the victim in the evening of January 23, 1999 to the discovery of his cadaver which was already in the state of putrefaction in the afternoon of January 27, 1999, about 200 meters away from his house, is consistent with and confirmatory of the contention of the prosecution that the victim was killed precisely by the very malefactors who seized him on January 23, 1999. 5. When police authorities went to the residences of all the malefactors, the latter had flown the coop and were nowhere to be found: "COURT: In connection with this case, you investigated the wife and son of Modesto Delim? A Q A Q A Q A Q A Q A Q Yes, sir. In the course of the investigation did you come to know who were the suspects? Yes, sir, she elaborated that the suspects were their neighbors, Marlon Delim and his brothers, sir. What are the names of the brothers? Manuel Delim, Leon Delim I cannot remember the others, sir. By reason of that information were you able to apprehend any of them for investigation? No, sir. Why? Because when we were dispatched by the Chief of Police no Delim brothers could be found, they all left the place, sir. In what place did you look for the brothers Delim? Within the vicinity, sir. In what place?

A Brgy. Bila and the place where the crime was committed in Brgy. Bila and the place where the cadaver was found in Paldit, sir. Q A Q A Q Where did you look for the Delim brothers? Nearby barangays, Immalog, sir. Wherelse (sic)? Labayog, Sison, sir. Wherelse?

A Q A

In mountainous part of Immalog, part of Tuba Benguet, sir. What was the result? Negative result, sir."43

6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald used to go to the house of Modesto and Rita: "COURT: These Leon and Manuel Delim are they known to you prior to that day, January 23, 1999? A Q A Q A Q A Yes, sir, I know them. Why do you know Manuel and Leon prior to January 23, 1999? They are my neighbors, sir. How about Marlon, Robert and Bongbong do you know them before January 23, 1999? I know them, sir. Why do you know them? They used to go to our house, sir.

Q I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all Delims and your husband's name is Modesto Delim are they related with each other? A Yes, sir."44

The sudden disappearance of Marlon, Ronald and Leon from their houses in Barangay Bila, Sison is strong circumstantial evidence of their guilt for the death of Modesto. Although flight after the commission of an offense does not create a legal presumption of guilt, nevertheless, the same is admissible in evidence against them and if not satisfactorily explained in a manner consistent with their innocence, will tend to show that they, in fact, killed Modesto.45 It is true that the prosecution failed to prove motive on the part of the malefactors to abduct and kill Modesto. Indeed, Randy and Rita testified that they were not aware of any misunderstanding or grudge between Modesto on the one hand and Marlon, Ronald and Leon and their co-accused on the other before the incident, or any motivation on the part of the three malefactors to cause harm to Modesto. Nonetheless, it cannot thereby be concluded that a person or persons other than Marlon, Ronald and Leon were criminally responsible for the death of the victim. It is a matter of judicial notice that nowadays persons have killed or committed serious crimes for no reason at all. 46 In this case, the inscrutable facts are that Marlon and Ronald, each of whom was armed with a handgun, forcibly took Modesto from his house at the gunpoint, hog-tied, put a piece of cloth in his mouth and after Ronald and Marlon had left the house with Modesto in tow, Rita heard three gunshots or so and the cadaver of Modesto was found concealed under the bushes and already in a state of putrefaction in the afternoon of January 27, 1999. Modesto sustained several gunshot wounds and died because of a gunshot wound on the head. The criminal acts and the connection of Marlon, Ronald and Leon with said acts having been proved by the prosecution beyond reasonable doubt, the act itself furnishes the evidence, that to its perpetration there was some causes or influences moving the mind. 47 The remarkable tapestry intricately woven by the prosecution should not be trashed simply because the malefactors had no motive to kill Modesto. Ranged against the evidence of the prosecution, the burden of evidence shifted on Marlon, Ronald and Leon to rebut the same and explain what happened to the victim after taking him from his house in the evening of January 23, 1999. They may have freed the victim shortly after taking him, or the victim may have been able to escape and that thereafter a person or some other persons may have killed him. However, Marlon, Ronald and Leon failed to give any explanation. Instead, they merely denied having seized and killed the victim and interposed alibi as their defense. Leon is equally guilty for the death of Modesto because the evidence on record shows that he conspired with accusedappellants Marlon and Ronald and accused Robert and Manuel in killing the victim. There is conspiracy when two or more persons agree to commit a felony and decide to commit it. 48 Conspiracy must be proven with the same quantum of evidence as the felony itself, more specifically by proof beyond reasonable doubt. Conspiracy is not presumed. It may be proved by direct evidence or by circumstantial evidence. Conspiracy is deducible from the acts of the malefactors before, during and after the commission of the crime which are indicative of a joint purpose, concerted action and concurrence of sentiment.49 To establish conspiracy, it is not essential that there be proof as to the existence of a previous

agreement to commit a crime.50 It is sufficient if, at the time of the commission of the crime, the accused had the same purpose and were united in its execution. If conspiracy is established, the act of one is deemed the act of all. It matters not who among the accused actually shot and killed the victim.51 This is based on the theory of a joint or mutual agency ad hoc for the prosecution of the common plan: "x x x The acts and declarations of an agent, within the scope of his authority, are considered and treated as the acts and declarations of his principal. 'What is so done by an agent, is done by the principal, through him, as his mere instrument.' Franklin Bank of Baltimore v. Pennsylvania D. & M. Steam Navigation Co ., 11 G. & J. 28, 33 (1839). 'If the conspiracy be proved to have existed, or rather if evidence be given to the jury of its existence, the acts of one in furtherance of the common design are the acts of all; and whatever one does in furtherance of the common design, he does as the agent of the co-conspirators.' R. v. O'Connell, 5 St.Tr. (N.S.) 1, 710."52 In the eyes of the law, conspirators are one man, they breathe one breath, they speak one voice, they wield one arm and the law says that the acts, words and declaration of each, while in the pursuit of the common design, are the acts, words and declarations of all.53 In the case at bar, Marlon, Ronald and Leon arrived together in the house of Modesto, each armed with a handgun. Marlon and Ronald barged into said house while Leon stood guard by the door thereof. After Marlon and Ronald had left with Modesto in tow, Leon stood by the door and warned Randy and Rita not to leave the house. Leon stood guard by the door of the house until 7:00 a.m. of January 24, 1999 when he left the house. The overt acts of all the malefactors were so synchronized and executed with precision evincing a preconceived plan or design of all the malefactors to achieve a common purpose, namely the killing of Modesto. Irrefragably, the tasks assigned to Leon in the commission of the crime were (a) to act as a lookout; (b) to ensure that Rita and Randy remain in their house to prevent them from seeking assistance from police authorities and their relatives before their mission to kill Modesto shall have been a fait accompli as well as the escape of Marlon and Ronald.54 Patently, Leon, a lookout for the group, is guilty of the killing of Modesto. 55 Leon may not have been at the situs criminis when Modesto was killed by Marlon and Ronald nevertheless he is a principal by direct participation. 56 If part of a crime has been committed in one place and part in another, each person concerned in the commission of either part is liable as principal. No matter how wide may be the separation of the conspirators, if they are all engaged in a common plan for the execution of a felony and all take their part in furtherance of the common design, all are liable as principals. Actual presence is not necessary if there is a direct connection between the actor and the crime.57 Ronald, Marlon and Leon, however, assail the testimonies of Randy and Rita alleging that the same were marred by inconsistencies. 1. Randy initially stated that he did not know where the assailants brought his father. Later however, Randy claimed that the malefactors proceeded to the direction of Paldit, Sison, Pangasinan; 2. Rita on the other hand identified Leon, Marlon and Ronald as those who barged into their house. She later changed her testimony and declared that it was Robert, together with Marlon and Ronald who barged into the house; 3. Rita likewise testified that two men stood outside the house guarding them. Later, she testified that after the three men brought out the victim, the two other accused entered the house and guarded them there; 4. Rita claimed that she went out to look for her husband the next day, or on January 25, 1999, and she was accompanied by her son Randy. However, Randy testified that he was alone when he looked for his father from January 24 to 26, 1999.58 We do not agree with Marlon, Ronald and Leon. Case law has it that the findings of facts of the trial court, its calibration of the collective testimonies of witnesses and its assessment of the probative weight thereof and its conclusions culled from its findings are accorded by the appellate court great respect, if not conclusive effect, because of its unique advantage of observing at close range the demeanor, deportment and conduct of the witnesses as they give their testimonies before the court. In the present case, the trial court gave credence and full probative weight to the testimonies of the witnesses of the prosecution. Moreover, there is no evidence on record that Randy and Rita were moved by any improper or ill motive in testifying against the malefactors and the other accused; hence, their testimonies must be given full credit and probative weight.59 The inconsistencies in the testimonies of Rita and Randy do not render them incredible or their testimonies barren of probative weight. It must be borne in mind that human memory is not as unerring as a photograph and a person's sense of observation is impaired by many factors including the shocking effect of a crime. A truth-telling witness is not always expected to give an error-free testimony considering the lapse of time and the treachery of human memory. What is primordial is that the mass of testimony jibes on material points, the slight clashing of statements dilute neither the witnesses' credibility nor the veracity of his testimony.60 Variations on the testimony of witnesses on the same side with respect to minor, collateral or incidental matters do not impair the weight of their united testimony to the prominent facts. 61Inconsistencies on minor and trivial matters only serve to strengthen rather than weaken the credibility of witnesses for they erase the suspicion of rehearsed testimony. 62

Moreover, the testimony of a witness should be construed in its entirety and not in truncated terms and the true meaning of answers to isolated questions propounded to a witness is to be ascertained by due consideration of all the questions propounded to the witness and his answers thereto.63 Randy's testimony that he did know where the malefactors brought his father is not inconsistent with his testimony that Ronald and Marlon brought his father towards the direction of Paldit, Sison, Pangasinan. Randy may not have known the destination of accused-appellants but he saw the direction to which they went. While it may be true that when asked to identify the three who barged into their house, Rita pointed to Leon as one of them, however, Rita had been consistent throughout her testimony that those who barged into their house were Ronald and Marlon. Leon's counsel never cross-examined Rita and impeached her testimony on her identification of Leon as one of those who barged into their house to give her an opportunity to explain her perceived inconsistency conformably with Rule 132, Section 13, of the Revised Rules of Evidence which reads: "Before a witness can be impeached by evidence that he has made at other times statements inconsistent with his present testimony, the statements must be related to him, with the circumstances of the times and places and the persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must be shown to the witness before any question is put to him concerning them."64 Hence, the presentation of the inconsistent statements made by Rita is insufficient for the desired impeachment of her.65As to whether Rita and Randy were together in looking for Modesto or Leon merely stood guard by the door of the house or entered the house are inconsequential. The fact is that Leon stood guard throughout the night to prevent Rita and Randy from seeking assistance for the seizure and killing of Modesto. This Court is convinced, as the trial court was, that the respective testimonies of Randy and Rita bear the earmarks of truth and sincerity. Despite intense and grueling cross-examination, they responded with consistency upon material details that could only come from a firsthand knowledge of the shocking events which unfolded before their eyes. The Court thus finds no cogent reason to disregard the findings of the trial court regarding their credibility. Marlon, Ronald and Leon contend that the trial court committed a reversible error in not giving credence and probative weight to their evidence to prove their defense of alibi. They aver that their collective evidence to prove their defense is strong. We do not agree. Case law has it that the defense of alibi is one of the weakest of defenses in criminal prosecution because the same is easy to concoct between relatives, friends and even those not related to the offender. 66 It is hard for the prosecution to disprove. For alibi to merit approbation by the trial court and this Court, Marlon, Ronald and Leon are burdened to prove with clear and convincing evidence that they were in a place other than the situs criminis at the time of the commission of the crime; that it was physically impossible for them to have committed the said crime. 67 They failed to discharge their burden. Moreover, Rita and Randy positively and spontaneously identified Marlon, Ronald and Leon as the culprits. The house of Ronald, where he claimed he was when the crime was committed, was only two kilometers away from the house of Modesto and can be negotiated by a tricycle. Leon failed to adduce any documentary evidence to prove his employment by Sally Asuncion. The barefaced fact that he was a resident of Laoag City does not constitute proof that he was in Laoag City on the day of the commission of the crime. With respect to Marlon, he failed to adduce evidence aside from his self-serving testimony that he resided in, left Dumaguete City and arrived in Manila on January 29, 1999. The trial court convicted Marlon, Ronald and Leon of murder with the qualifying circumstance of treachery in the killing of Modesto. The trial court likewise appreciated nighttime and abuse of superior strength and the use of unlicensed firearms as separate aggravating circumstances. The Office of the Solicitor General contends that indeed treachery was attendant in the killing of Modesto. Hence, Marlon, Ronald and Leon are guilty of murder defined in and penalized by Article 248 of the Revised Penal Code. The Court however finds that Marlon, Ronald and Leon are guilty only of homicide defined in and penalized by Article 248 of the Revised Penal Code. Qualifying circumstances such as treachery and abuse of superior strength must be alleged and proved clearly and conclusively as the crime itself. Mere conjectures, suppositions or presumptions are utterly insufficient and cannot produce the effect of qualifying the crime.68 As this Court held: "No matter how truthful these suppositions or presumptions may seem, they must not and cannot produce the effect of aggravating the condition of defendant." 69 Article 14, paragraph 16 of the Revised Penal Code provides that there is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and especially to insure its execution, without risk to himself arising from the defense which the offended party might make. For treachery to be appreciated as a qualifying circumstance, the prosecution is burdened to prove the following elements: (a) the employment of means of execution which gives the person attacked no opportunity to defend himself or retaliate; (b) the means of execution is deliberately or consciously adopted.70 Although the victim may have been defenseless at the time he was seized but there is no evidence as to the particulars of how he was assaulted and killed, treachery cannot be appreciated against the accused. 71 In this case, the victim was defenseless when seized by Marlon and Ronald. However, the prosecution failed to present any witness or conclusive evidence that Modesto was defenseless immediately before and when he was attacked and killed. It cannot be presumed that although he was defenseless when he was seized the victim was in the same situation when he was attacked, shot and stabbed by the malefactors. To take advantage of superior strength means to purposely use force that is out of

proportion to the means of defense available to the person attacked.72 What is primordial, this Court held in People v. Rogelio Francisco73 is that the assailants deliberately took advantage of their combined strength in order to consummate the crime . It is necessary to show that the malefactors cooperated in such a way as to secure advantage from their superiority in strength.74 In this case, the prosecution failed to adduce evidence that Marlon and Ronald deliberately took advantage of their numerical superiority when Modesto was killed. The barefaced facts that the malefactors outnumbered Modesto and were armed while Modesto was not does not constitute proof that the three took advantage of their numerical superiority and their handguns when Modesto was shot and stabbed.75 In sum then, we believe that Marlon, Ronald and Leon are guilty only of Homicide defined in and penalized by Article 249 of the Revised Penal Code with reclusion temporal in its full period. Although the special aggravating circumstance of the use of unlicensed firearms was proven during the trial, there is no allegation in the Information that Marlon, Ronald and Leon had no license to possess the firearm. Lack of license to possess a firearm is an essential element of the crime of violation of PD 1866 as amended by Republic Act No. 8294, or as a special aggravating circumstance in the felony of homicide or murder.76 Neither can dwelling, although proven, aggravate the crime because said circumstance was not alleged in the Information as required by Rule 110, Section 8, of the Revised Rules of Court.77 Although this rule took effect on December 1, 2000, after the commission of the offense in this case, nonetheless it had been given retroactive effect considering that the rule is favorable to the accused.78 There being no modifying circumstances in the commission of homicide, Marlon, Ronald and Leon should be meted an indeterminate penalty, the minimum of which shall be taken from the entirety of prision mayor, ranging from 6 years and one day to 12 years and the maximum period of which shall be taken from the medium period of reclusion temporal, ranging from 14 years, 8 months and one day to 17 years and 4 months. Consequently, the award for damages in favor of the heirs of the victim should be modified. The sum of P75,000.00 awarded as moral damages should be reduced to P50,000.00 in accordance with prevailing jurisprudence. 79 The amount of P25,000.00 as exemplary damages is in order. 80 In addition, civil indemnity in the amount of P50,000.00 should be awarded without need of proof, likewise in consonance with prevailing jurisprudence.81 IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is AFFIRMED with MODIFICATION. Accused-appellants Marlon Delim, Ronald Delim and Leon Delim are hereby found guilty beyond reasonable doubt of the felony of Homicide defined in and penalized by Article 249 of the Revised Penal Code. There being no modifying circumstances in the commission of the crime, each of accused-appellants is hereby meted an indeterminate penalty of from ten (10) years and one (1) day of prision mayor in its maximum period as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal in its medium period as maximum. Accused-appellants are hereby ordered to pay, jointly and severally, to the heirs of the victim the amount of P50,000.00 by way of civil indemnity, the amount of P50,000.00 by way of moral damages and the amount of P25,000.00 by way of exemplary damages. SO ORDERED. G.R. No. 172716 November 17, 2010

JASON IVLER y AGUILAR, Petitioner, vs. HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the Metropolitan Trial Court, Branch 71, Pasig City, and EVANGELINE PONCE, Respondents. DECISION CARPIO, J.: The Case The petition seeks the review1 of the Orders2 of the Regional Trial Court of Pasig City affirming sub-silencio a lower courts ruling finding inapplicable the Double Jeopardy Clause to bar a second prosecution for Reckless Imprudence Resulting in Homicide and Damage to Property. This, despite the accuseds previous conviction for Reckless Imprudence Resulting in Slight Physical Injuries arising from the same incident grounding the second prosecution. The Facts Following a vehicular collision in August 2004, petitioner Jason Ivler (petitioner) was charged before the Metropolitan Trial Court of Pasig City, Branch 71 (MeTC), with two separate offenses: (1) Reckless Imprudence Resulting in Slight Physical Injuries (Criminal Case No. 82367) for injuries sustained by respondent Evangeline L. Ponce (respondent Ponce); and (2) Reckless Imprudence Resulting in Homicide and Damage to Property (Criminal Case No. 82366) for the death of respondent

Ponces husband Nestor C. Ponce and damage to the spouses Ponces vehicle. Petitioner posted bail for his temporary release in both cases. On 7 September 2004, petitioner pleaded guilty to the charge in Criminal Case No. 82367 and was meted out the penalty of public censure. Invoking this conviction, petitioner moved to quash the Information in Criminal Case No. 82366 for placing him in jeopardy of second punishment for the same offense of reckless imprudence. The MeTC refused quashal, finding no identity of offenses in the two cases.3 After unsuccessfully seeking reconsideration, petitioner elevated the matter to the Regional Trial Court of Pasig City, Branch 157 (RTC), in a petition for certiorari (S.C.A. No. 2803). Meanwhile, petitioner sought from the MeTC the suspension of proceedings in Criminal Case No. 82366, including the arraignment on 17 May 2005, invoking S.C.A. No. 2803 as a prejudicial question. Without acting on petitioners motion, the MeTC proceeded with the arraignment and, because of petitioners absence, cancelled his bail and ordered his arrest. 4 Seven days later, the MeTC issued a resolution denying petitioners motion to suspend proceedings and postponing his arraignment until after his arrest. 5 Petitioner sought reconsideration but as of the filing of this petition, the motion remained unresolved. Relying on the arrest order against petitioner, respondent Ponce sought in the RTC the dismissal of S.C.A. No. 2803 for petitioners loss of standing to maintain the suit. Petitioner contested the motion. The Ruling of the Trial Court In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803, narrowly grounding its ruling on petitioners forfeiture of standing to maintain S.C.A. No. 2803 arising from the MeTCs order to arrest petitioner for his non-appearance at the arraignment in Criminal Case No. 82366. Thus, without reaching the merits of S.C.A. No. 2803, the RTC effectively affirmed the MeTC. Petitioner sought reconsideration but this proved unavailing.6 Hence, this petition. Petitioner denies absconding. He explains that his petition in S.C.A. No. 2803 constrained him to forego participation in the proceedings in Criminal Case No. 82366. Petitioner distinguishes his case from the line of jurisprudence sanctioning dismissal of appeals for absconding appellants because his appeal before the RTC was a special civil action seeking a pre-trial relief, not a post-trial appeal of a judgment of conviction.7 Petitioner laments the RTCs failure to reach the merits of his petition in S.C.A. 2803. Invoking jurisprudence, petitioner argues that his constitutional right not to be placed twice in jeopardy of punishment for the same offense bars his prosecution in Criminal Case No. 82366, having been previously convicted in Criminal Case No. 82367 for the same offense of reckless imprudence charged in Criminal Case No. 82366. Petitioner submits that the multiple consequences of such crime are material only to determine his penalty. Respondent Ponce finds no reason for the Court to disturb the RTCs decision forfeiting petitioners standing to maintain his petition in S.C.A. 2803. On the merits, respondent Ponce calls the Courts attention to jurisprudence holding that light offenses (e.g. slight physical injuries) cannot be complexed under Article 48 of the Revised Penal Code with grave or less grave felonies (e.g. homicide). Hence, the prosecution was obliged to separate the charge in Criminal Case No. 82366 for the slight physical injuries from Criminal Case No. 82367 for the homicide and damage to property. In the Resolution of 6 June 2007, we granted the Office of the Solicitor Generals motion not to file a comment to the petition as the public respondent judge is merely a nominal party and private respondent is represented by counsel. The Issues Two questions are presented for resolution: (1) whether petitioner forfeited his standing to seek relief in S.C.A. 2803 when the MeTC ordered his arrest following his non-appearance at the arraignment in Criminal Case No. 82366; and (2) if in the negative, whether petitioners constitutional right under the Double Jeopardy Clause bars further proceedings in Criminal Case No. 82366. The Ruling of the Court We hold that (1) petitioners non-appearance at the arraignment in Criminal Case No. 82366 did not divest him of personality to maintain the petition in S.C.A. 2803; and (2) the protection afforded by the Constitution shielding petitioner from prosecutions placing him in jeopardy of second punishment for the same offense bars further proceedings in Criminal Case No. 82366.

Petitioners Non-appearance Criminal Case No. 82366 to Maintain the Petition in S.C.A. 2803

at did

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Arraignment him of

in Standing

Dismissals of appeals grounded on the appellants escape from custody or violation of the terms of his bail bond are governed by the second paragraph of Section 8, Rule 124,8 in relation to Section 1, Rule 125, of the Revised Rules on Criminal Procedure authorizing this Court or the Court of Appeals to "also, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison or confinement, jumps bail or flees to a foreign country during the pendency of the appeal." The "appeal" contemplated in Section 8 of Rule 124 is a suit to review judgments of convictions. The RTCs dismissal of petitioners special civil action for certiorari to review a pre-arraignment ancillary question on the applicability of the Due Process Clause to bar proceedings in Criminal Case No. 82366 finds no basis under procedural rules and jurisprudence. The RTCs reliance on People v. Esparas9 undercuts the cogency of its ruling because Esparasstands for a proposition contrary to the RTCs ruling. There, the Court granted review to an appeal by an accused who was sentenced to death for importing prohibited drugs even though she jumped bail pending trial and was thus tried and convicted in absentia. The Court in Esparas treated the mandatory review of death sentences under Republic Act No. 7659 as an exception to Section 8 of Rule 124.10 The mischief in the RTCs treatment of petitioners non-appearance at his arraignment in Criminal Case No. 82366 as proof of his loss of standing becomes more evident when one considers the Rules of Courts treatment of a defendant who absents himself from post-arraignment hearings. Under Section 21, Rule 114 11 of the Revised Rules of Criminal Procedure, the defendants absence merely renders his bondsman potentially liable on its bond (subject to cancellation should the bondsman fail to produce the accused within 30 days); the defendant retains his standing and, should he fail to surrender, will be tried in absentia and could be convicted or acquitted. Indeed, the 30-day period granted to the bondsman to produce the accused underscores the fact that mere non-appearance does not ipso facto convert the accuseds status to that of a fugitive without standing. Further, the RTCs observation that petitioner provided "no explanation why he failed to attend the scheduled proceeding" 12at the MeTC is belied by the records. Days before the arraignment, petitioner sought the suspension of the MeTCs proceedings in Criminal Case No. 82366 in light of his petition with the RTC in S.C.A. No. 2803. Following the MeTCs refusal to defer arraignment (the order for which was released days after the MeTC ordered petitioners arrest), petitioner sought reconsideration. His motion remained unresolved as of the filing of this petition. Petitioners Conviction in Bars his Prosecution in Criminal Case No. 82366 Criminal Case No. 82367

The accuseds negative constitutional right not to be "twice put in jeopardy of punishment for the same offense" 13 protects him from, among others, post-conviction prosecution for the same offense, with the prior verdict rendered by a court of competent jurisdiction upon a valid information.14 It is not disputed that petitioners conviction in Criminal Case No. 82367 was rendered by a court of competent jurisdiction upon a valid charge. Thus, the case turns on the question whether Criminal Case No. 82366 and Criminal Case No. 82367 involve the "same offense." Petitioner adopts the affirmative view, submitting that the two cases concern the same offense of reckless imprudence. The MeTC ruled otherwise, finding that Reckless Imprudence Resulting in Slight Physical Injuries is an entirely separate offense from Reckless Imprudence Resulting in Homicide and Damage to Property "as the [latter] requires proof of an additional fact which the other does not."15 We find for petitioner. Reckless its Property the Penalty Imprudence Consequences are is on Material Only a Single Persons to Crime, and Determine

The two charges against petitioner, arising from the same facts, were prosecuted under the same provision of the Revised Penal Code, as amended, namely, Article 365 defining and penalizing quasi-offenses. The text of the provision reads: Imprudence and negligence. Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted a light felony, the penalty of arresto menor in its maximum period shall be imposed. Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed.

When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages to three times such value, but which shall in no case be less than twenty-five pesos. A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a light felony. In the imposition of these penalties, the court shall exercise their sound discretion, without regard to the rules prescribed in Article sixty-four. The provisions contained in this article shall not be applicable: 1. When the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of this article, in which case the court shall impose the penalty next lower in degree than that which should be imposed in the period which they may deem proper to apply. 2. When, by imprudence or negligence and with violation of the Automobile Law, to death of a person shall be caused, in which case the defendant shall be punished by prision correccional in its medium and maximum periods. Reckless imprudence consists in voluntary, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest. The penalty next higher in degree to those provided for in this article shall be imposed upon the offender who fails to lend on the spot to the injured parties such help as may be in this hand to give. Structurally, these nine paragraphs are collapsible into four sub-groupings relating to (1) the penalties attached to the quasioffenses of "imprudence" and "negligence" (paragraphs 1-2); (2) a modified penalty scheme for either or both quasi-offenses (paragraphs 3-4, 6 and 9); (3) a generic rule for trial courts in imposing penalties (paragraph 5); and (4) the definition of "reckless imprudence" and "simple imprudence" (paragraphs 7-8). Conceptually, quasi-offenses penalize "the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible," 16 unlike willful offenses which punish the intentional criminal act. These structural and conceptual features of quasi-offenses set them apart from the mass of intentional crimes under the first 13 Titles of Book II of the Revised Penal Code, as amended. Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct species of crime, separately defined and penalized under the framework of our penal laws, is nothing new. As early as the middle of the last century, we already sought to bring clarity to this field by rejecting in Quizon v. Justice of the Peace of Pampanga the proposition that "reckless imprudence is not a crime in itself but simply a way of committing it x x x"17 on three points of analysis: (1) the object of punishment in quasi-crimes (as opposed to intentional crimes); (2) the legislative intent to treat quasi-crimes as distinct offenses (as opposed to subsuming them under the mitigating circumstance of minimal intent) and; (3) the different penalty structures for quasi-crimes and intentional crimes: The proposition (inferred from Art. 3 of the Revised Penal Code) that "reckless imprudence" is not a crime in itself but simply a way of committing it and merely determines a lower degree of criminal liability is too broad to deserve unqualified assent. There are crimes that by their structure cannot be committed through imprudence: murder, treason, robbery, malicious mischief, etc. In truth, criminal negligence in our Revised Penal Code is treated as a mere quasi offense, and dealt with separately from willful offenses. It is not a mere question of classification or terminology. In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible. x x x x Were criminal negligence but a modality in the commission of felonies, operating only to reduce the penalty therefor, then it would be absorbed in the mitigating circumstances of Art. 13, specially the lack of intent to commit so grave a wrong as the one actually committed. Furthermore, the theory would require that the corresponding penalty should be fixed in proportion to the penalty prescribed for each crime when committed willfully. For each penalty for the willful offense, there would then be a corresponding penalty for the negligent variety. But instead, our Revised Penal Code (Art. 365) fixes the penalty for reckless imprudence at arresto mayor maximum, to prision correccional [medium], if the willful act would constitute a grave felony, notwithstanding that the penalty for the latter could range all the way from prision mayor to death, according to the case. It can be seen that the actual penalty for criminal negligence bears no relation to the individual willful crime, but is set in relation to a whole class, or series, of crimes.18 (Emphasis supplied)

This explains why the technically correct way to allege quasi-crimes is to state that their commission results in damage, either to person or property.19 Accordingly, we found the Justice of the Peace in Quizon without jurisdiction to hear a case for "Damage to Property through Reckless Imprudence," its jurisdiction being limited to trying charges for Malicious Mischief, an intentional crime conceptually incompatible with the element of imprudence obtaining in quasi-crimes. Quizon, rooted in Spanish law 20 (the normative ancestry of our present day penal code) and since repeatedly reiterated,21stands on solid conceptual foundation. The contrary doctrinal pronouncement in People v. Faller 22 that "[r]eckless impudence is not a crime in itself x x x [but] simply a way of committing it x x x," 23 has long been abandoned when the Court en banc promulgated Quizon in 1955 nearly two decades after the Court decided Faller in 1939. Quizon rejected Fallers conceptualization of quasi-crimes by holding that quasi-crimes under Article 365 are distinct species of crimes and not merely methods of committing crimes. Faller found expression in post-Quizon jurisprudence 24 only by dint of lingering doctrinal confusion arising from an indiscriminate fusion of criminal law rules defining Article 365 crimes and the complexing of intentional crimes under Article 48 of the Revised Penal Code which, as will be shown shortly, rests on erroneous conception of quasi-crimes. Indeed, the Quizonian conception of quasi-crimes undergirded a related branch of jurisprudence applying the Double Jeopardy Clause to quasi-offenses, barring second prosecutions for a quasi-offense alleging one resulting act after a prior conviction or acquittal of a quasi-offense alleging another resulting act but arising from the same reckless act or omission upon which the second prosecution was based. Prior Reckless Subsequent Quasi-Offense Conviction Prosecution or Imprudence for Acquittal the of Bars Same

The doctrine that reckless imprudence under Article 365 is a single quasi-offense by itself and not merely a means to commit other crimes such that conviction or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-offense, regardless of its various resulting acts, undergirded this Courts unbroken chain of jurisprudence on double jeopardy as applied to Article 365 starting with People v. Diaz, 25 decided in 1954. There, a full Court, speaking through Mr. Justice Montemayor, ordered the dismissal of a case for "damage to property thru reckless imprudence" because a prior case against the same accused for "reckless driving," arising from the same act upon which the first prosecution was based, had been dismissed earlier. Since then, whenever the same legal question was brought before the Court, that is, whether prior conviction or acquittal of reckless imprudence bars subsequent prosecution for the same quasi-offense, regardless of the consequences alleged for both charges, the Court unfailingly and consistently answered in the affirmative in People v. Belga26 (promulgated in 1957 by the Court en banc, per Reyes, J.), Yap v. Lutero 27 (promulgated in 1959, unreported, per Concepcion, J.), People v. Narvas28 (promulgated in 1960 by the Court en banc, per Bengzon J.), People v. Silva29 (promulgated in 1962 by the Court en banc, per Paredes, J.), People v. Macabuhay30 (promulgated in 1966 by the Court en banc, per Makalintal, J.), People v. Buan31 (promulgated in 1968 by the Court en banc, per Reyes, J.B.L., acting C. J.), Buerano v. Court of Appeals32 (promulgated in 1982 by the Court en banc, per Relova, J.), and People v. City Court of Manila33 (promulgated in 1983 by the First Division, per Relova, J.). These cases uniformly barred the second prosecutions as constitutionally impermissible under the Double Jeopardy Clause. The reason for this consistent stance of extending the constitutional protection under the Double Jeopardy Clause to quasioffenses was best articulated by Mr. Justice J.B.L. Reyes in Buan, where, in barring a subsequent prosecution for "serious physical injuries and damage to property thru reckless imprudence" because of the accuseds prior acquittal of "slight physical injuries thru reckless imprudence," with both charges grounded on the same act, the Court explained:34 Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different crimes and prosecutions.35 x x x (Emphasis supplied) Evidently, the Diaz line of jurisprudence on double jeopardy merely extended to its logical conclusion the reasoning of Quizon. There is in our jurisprudence only one ruling going against this unbroken line of authority. Preceding Diaz by more than a decade, El Pueblo de Filipinas v. Estipona,36 decided by the pre-war colonial Court in November 1940, allowed the subsequent prosecution of an accused for reckless imprudence resulting in damage to property despite his previous conviction for multiple physical injuries arising from the same reckless operation of a motor vehicle upon which the second prosecution was based. Estiponas inconsistency with the post-war Diaz chain of jurisprudence suffices to impliedly overrule it. At any rate, all doubts on this matter were laid to rest in 1982 in Buerano. 37 There, we reviewed the Court of Appeals conviction of an accused for "damage to property for reckless imprudence" despite his prior conviction for "slight and less serious physical injuries thru

reckless imprudence," arising from the same act upon which the second charge was based. The Court of Appeals had relied on Estipona. We reversed on the strength of Buan:38 Th[e] view of the Court of Appeals was inspired by the ruling of this Court in the pre-war case of People vs. Estipona decided on November 14, 1940. However, in the case of People vs. Buan, 22 SCRA 1383 (March 29, 1968), this Court, speaking thru Justice J. B. L. Reyes, held that Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under Article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different crimes and prosecutions. xxxx . . . the exoneration of this appellant, Jose Buan, by the Justice of the Peace (now Municipal) Court of Guiguinto, Bulacan, of the charge of slight physical injuries through reckless imprudence, prevents his being prosecuted for serious physical injuries through reckless imprudence in the Court of First Instance of the province, where both charges are derived from the consequences of one and the same vehicular accident, because the second accusation places the appellant in second jeopardy for the same offense.39 (Emphasis supplied) Thus, for all intents and purposes, Buerano had effectively overruled Estipona. It is noteworthy that the Solicitor General in Buerano, in a reversal of his earlier stance in Silva, joined causes with the accused, a fact which did not escape the Courts attention: Then Solicitor General, now Justice Felix V. Makasiar, in his MANIFESTATION dated December 12, 1969 (page 82 of the Rollo) admits that the Court of Appeals erred in not sustaining petitioners plea of double jeopardy and submits that "its affirmatory decision dated January 28, 1969, in Criminal Case No. 05123-CR finding petitioner guilty of damage to property through reckless imprudence should be set aside, without costs." He stressed that "if double jeopardy exists where the reckless act resulted into homicide and physical injuries. then the same consequence must perforce follow where the same reckless act caused merely damage to property-not death-and physical injuries. Verily, the value of a human life lost as a result of a vehicular collision cannot be equated with any amount of damages caused to a motors vehicle arising from the same mishap."40 (Emphasis supplied) Hence, we find merit in petitioners submission that the lower courts erred in refusing to extend in his favor the mantle of protection afforded by the Double Jeopardy Clause. A more fitting jurisprudence could not be tailored to petitioners case than People v. Silva, 41 a Diaz progeny. There, the accused, who was also involved in a vehicular collision, was charged in two separate Informations with "Slight Physical Injuries thru Reckless Imprudence" and "Homicide with Serious Physical Injuries thru Reckless Imprudence." Following his acquittal of the former, the accused sought the quashal of the latter, invoking the Double Jeopardy Clause. The trial court initially denied relief, but, on reconsideration, found merit in the accuseds claim and dismissed the second case. In affirming the trial court, we quoted with approval its analysis of the issue following Diaz and its progeny People v. Belga:42 On June 26, 1959, the lower court reconsidered its Order of May 2, 1959 and dismissed the case, holding: [T]he Court believes that the case falls squarely within the doctrine of double jeopardy enunciated in People v. Belga, x x x In the case cited, Ciriaco Belga and Jose Belga were charged in the Justice of the Peace Court of Malilipot, Albay, with the crime of physical injuries through reckless imprudence arising from a collision between the two automobiles driven by them (Crim. Case No. 88). Without the aforesaid complaint having been dismissed or otherwise disposed of, two other criminal complaints were filed in the same justice of the peace court, in connection with the same collision one for damage to property through reckless imprudence (Crim. Case No. 95) signed by the owner of one of the vehicles involved in the collision, and another for multiple physical injuries through reckless imprudence (Crim. Case No. 96) signed by the passengers injured in the accident. Both of these two complaints were filed against Jose Belga only. After trial, both defendants were acquitted of the charge against them in Crim. Case No. 88. Following his acquittal, Jose Belga moved to quash the complaint for multiple physical injuries through reckless imprudence filed against him by the injured passengers, contending that the case was just a duplication of the one filed by the Chief of Police wherein he had just been acquitted. The motion to quash was denied and after trial Jose Belga was convicted, whereupon he appealed to the Court of First Instance of Albay. In the meantime, the case for damage to property through reckless imprudence filed by one of the owners of the vehicles involved in the collision had been remanded to the Court of First Instance of Albay after Jose Belga had waived the second stage of the preliminary investigation. After such remand, the Provincial Fiscal filed in the Court of First Instance two informations against Jose Belga, one for physical injuries through reckless imprudence, and another for damage to property through reckless imprudence. Both cases were dismissed by the Court of First Instance, upon motion of the defendant Jose Belga who alleged double jeopardy in

a motion to quash. On appeal by the Prov. Fiscal, the order of dismissal was affirmed by the Supreme Court in the following language: . The question for determination is whether the acquittal of Jose Belga in the case filed by the chief of police constitutes a bar to his subsequent prosecution for multiple physical injuries and damage to property through reckless imprudence. In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March 30, 1954, the accused was charged in the municipal court of Pasay City with reckless driving under sec. 52 of the Revised Motor Vehicle Law, for having driven an automobile in a fast and reckless manner ... thereby causing an accident. After the accused had pleaded not guilty the case was dismissed in that court for failure of the Government to prosecute. But some time thereafter the city attorney filed an information in the Court of First Instance of Rizal, charging the same accused with damage to property thru reckless imprudence. The amount of the damage was alleged to be P249.50. Pleading double jeopardy, the accused filed a motion, and on appeal by the Government we affirmed the ruling. Among other things we there said through Mr. Justice Montemayor The next question to determine is the relation between the first offense of violation of the Motor Vehicle Law prosecuted before the Pasay City Municipal Court and the offense of damage to property thru reckless imprudence charged in the Rizal Court of First Instance. One of the tests of double jeopardy is whether or not the second offense charged necessarily includes or is necessarily included in the offense charged in the former complaint or information (Rule 113, Sec. 9). Another test is whether the evidence which proves one would prove the other that is to say whether the facts alleged in the first charge if proven, would have been sufficient to support the second charge and vice versa; or whether one crime is an ingredient of the other. x x x xxxx The foregoing language of the Supreme Court also disposes of the contention of the prosecuting attorney that the charge for slight physical injuries through reckless imprudence could not have been joined with the charge for homicide with serious physical injuries through reckless imprudence in this case, in view of the provisions of Art. 48 of the Revised Penal Code, as amended. The prosecutions contention might be true. But neither was the prosecution obliged to first prosecute the accused for slight physical injuries through reckless imprudence before pressing the more serious charge of homicide with serious physical injuries through reckless imprudence. Having first prosecuted the defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is not now in a position to press in this case the more serious charge of homicide with serious physical injuries through reckless imprudence which arose out of the same alleged reckless imprudence of which the defendant have been previously cleared by the inferior court.43 Significantly, the Solicitor General had urged us in Silva to reexamine Belga (and hence, Diaz) "for the purpose of delimiting or clarifying its application."44 We declined the invitation, thus: The State in its appeal claims that the lower court erred in dismissing the case, on the ground of double jeopardy, upon the basis of the acquittal of the accused in the JP court for Slight Physical Injuries, thru Reckless Imprudence. In the same breath said State, thru the Solicitor General, admits that the facts of the case at bar, fall squarely on the ruling of the Belga case x x x, upon which the order of dismissal of the lower court was anchored. The Solicitor General, however, urges a re-examination of said ruling, upon certain considerations for the purpose of delimiting or clarifying its application. We find, nevertheless, that further elucidation or disquisition on the ruling in the Belga case, the facts of which are analogous or similar to those in the present case, will yield no practical advantage to the government. On one hand, there is nothing which would warrant a delimitation or clarification of the applicability of the Belga case. It was clear. On the other, this Court has reiterated the views expressed in the Belga case, in the identical case of Yap v. Hon. Lutero, etc., L-12669, April 30, 1959.45 (Emphasis supplied) Article 48 Does Under Article 365 of the Revised Penal Code not Apply to Acts Penalized

The confusion bedeviling the question posed in this petition, to which the MeTC succumbed, stems from persistent but awkward attempts to harmonize conceptually incompatible substantive and procedural rules in criminal law, namely, Article 365 defining and penalizing quasi-offenses and Article 48 on complexing of crimes, both under the Revised Penal Code. Article 48 is a procedural device allowing single prosecution of multiple felonies falling under either of two categories: (1) when a single act constitutes two or more grave or less grave felonies (thus excluding from its operation light felonies 46); and (2) when an offense is a necessary means for committing the other. The legislature crafted this procedural tool to benefit the accused who, in lieu of serving multiple penalties, will only serve the maximum of the penalty for the most serious crime. In contrast, Article 365 is a substantive rule penalizing not an act defined as a felony but "the mental attitude x x x behind the act, the dangerous recklessness, lack of care or foresight x x x," 47 a single mental attitude regardless of the resulting consequences. Thus, Article 365 was crafted as one quasi-crime resulting in one or more consequences. Ordinarily, these two provisions will operate smoothly. Article 48 works to combine in a single prosecution multiple intentional crimes falling under Titles 1-13, Book II of the Revised Penal Code, when proper; Article 365 governs the prosecution of imprudent acts and their consequences. However, the complexities of human interaction can produce a hybrid quasi-offense

not falling under either models that of a single criminal negligence resulting in multiple non-crime damages to persons and property with varying penalties corresponding to light, less grave or grave offenses. The ensuing prosecutorial dilemma is obvious: how should such a quasi-crime be prosecuted? Should Article 48s framework apply to "complex" the single quasioffense with its multiple (non-criminal) consequences (excluding those amounting to light offenses which will be tried separately)? Or should the prosecution proceed under a single charge, collectively alleging all the consequences of the single quasi-crime, to be penalized separately following the scheme of penalties under Article 365? Jurisprudence adopts both approaches. Thus, one line of rulings (none of which involved the issue of double jeopardy) applied Article 48 by "complexing" one quasi-crime with its multiple consequences 48 unless one consequence amounts to a light felony, in which case charges were split by grouping, on the one hand, resulting acts amounting to grave or less grave felonies and filing the charge with the second level courts and, on the other hand, resulting acts amounting to light felonies and filing the charge with the first level courts. 49 Expectedly, this is the approach the MeTC impliedly sanctioned (and respondent Ponce invokes), even though under Republic Act No. 7691,50 the MeTC has now exclusive original jurisdiction to impose the most serious penalty under Article 365 which is prision correccional in its medium period. Under this approach, the issue of double jeopardy will not arise if the "complexing" of acts penalized under Article 365 involves only resulting acts penalized as grave or less grave felonies because there will be a single prosecution of all the resulting acts. The issue of double jeopardy arises if one of the resulting acts is penalized as a light offense and the other acts are penalized as grave or less grave offenses, in which case Article 48 is not deemed to apply and the act penalized as a light offense is tried separately from the resulting acts penalized as grave or less grave offenses. The second jurisprudential path nixes Article 48 and sanctions a single prosecution of all the effects of the quasi-crime collectively alleged in one charge, regardless of their number or severity, 51 penalizing each consequence separately. Thus, in Angeles v. Jose,52 we interpreted paragraph three of Article 365, in relation to a charge alleging "reckless imprudence resulting in damage to property and less serious physical injuries," as follows: [T]he third paragraph of said article, x x x reads as follows: When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damage to three times such value, but which shall in no case be less than 25 pesos. The above-quoted provision simply means that if there is only damage to property the amount fixed therein shall be imposed, but if there are also physical injuries there should be an additional penalty for the latter. The information cannot be split into two; one for the physical injuries, and another for the damage to property, x x x.53 (Emphasis supplied) By "additional penalty," the Court meant, logically, the penalty scheme under Article 365. Evidently, these approaches, while parallel, are irreconcilable. Coherence in this field demands choosing one framework over the other. Either (1) we allow the "complexing" of a single quasi-crime by breaking its resulting acts into separate offenses (except for light felonies), thus re-conceptualize a quasi-crime, abandon its present framing under Article 365, discard its conception under the Quizon and Diaz lines of cases, and treat the multiple consequences of a quasi-crime as separate intentional felonies defined under Titles 1-13, Book II under the penal code; or (2) we forbid the application of Article 48 in the prosecution and sentencing of quasi-crimes, require single prosecution of all the resulting acts regardless of their number and severity, separately penalize each as provided in Article 365, and thus maintain the distinct concept of quasi-crimes as crafted under Article 365, articulated in Quizon and applied to double jeopardy adjudication in the Diaz line of cases.1avvphi1 A becoming regard of this Courts place in our scheme of government denying it the power to make laws constrains us to keep inviolate the conceptual distinction between quasi-crimes and intentional felonies under our penal code. Article 48 is incongruent to the notion of quasi-crimes under Article 365. It is conceptually impossible for a quasi-offense to stand for (1) a single act constituting two or more grave or less grave felonies; or (2) an offense which is a necessary means for committing another. This is why, way back in 1968 in Buan, we rejected the Solicitor Generals argument that double jeopardy does not bar a second prosecution for slight physical injuries through reckless imprudence allegedly because the charge for that offense could not be joined with the other charge for serious physical injuries through reckless imprudence following Article 48 of the Revised Penal Code: The Solicitor General stresses in his brief that the charge for slight physical injuries through reckless imprudence could not be joined with the accusation for serious physical injuries through reckless imprudence, because Article 48 of the Revised Penal Code allows only the complexing of grave or less grave felonies. This same argument was considered and rejectedby this Court in the case of People vs. [Silva] x x x: [T]he prosecutions contention might be true. But neither was the prosecution obliged to first prosecute the accused for slight physical injuries through reckless imprudence before pressing the more serious charge of homicide with serious physical injuries through reckless imprudence. Having first prosecuted the defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is not now in a position to press in this

case the more serious charge of homicide with serious physical injuries through reckless imprudence which arose out of the same alleged reckless imprudence of which the defendant has been previously cleared by the inferior court. [W]e must perforce rule that the exoneration of this appellant x x x by the Justice of the Peace x x x of the charge of slight physical injuries through reckless imprudence, prevents his being prosecuted for serious physical injuries through reckless imprudence in the Court of First Instance of the province, where both charges are derived from the consequences of one and the same vehicular accident, because the second accusation places the appellant in second jeopardy for the same offense.54 (Emphasis supplied) Indeed, this is a constitutionally compelled choice. By prohibiting the splitting of charges under Article 365, irrespective of the number and severity of the resulting acts, rampant occasions of constitutionally impermissible second prosecutions are avoided, not to mention that scarce state resources are conserved and diverted to proper use. Hence, we hold that prosecutions under Article 365 should proceed from a single charge regardless of the number or severity of the consequences. In imposing penalties, the judge will do no more than apply the penalties under Article 365 for each consequence alleged and proven. In short, there shall be no splitting of charges under Article 365, and only one information shall be filed in the same first level court.55 Our ruling today secures for the accused facing an Article 365 charge a stronger and simpler protection of their constitutional right under the Double Jeopardy Clause. True, they are thereby denied the beneficent effect of the favorable sentencing formula under Article 48, but any disadvantage thus caused is more than compensated by the certainty of non-prosecution for quasi-crime effects qualifying as "light offenses" (or, as here, for the more serious consequence prosecuted belatedly). If it is so minded, Congress can re-craft Article 365 by extending to quasi-crimes the sentencing formula of Article 48 so that only the most severe penalty shall be imposed under a single prosecution of all resulting acts, whether penalized as grave, less grave or light offenses. This will still keep intact the distinct concept of quasi-offenses. Meanwhile, the lenient schedule of penalties under Article 365, befitting crimes occupying a lower rung of culpability, should cushion the effect of this ruling. WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2 February 2006 and 2 May 2006 of the Regional Trial Court of Pasig City, Branch 157. We DISMISS the Information in Criminal Case No. 82366 against petitioner Jason Ivler y Aguilar pending with the Metropolitan Trial Court of Pasig City, Branch 71 on the ground of double jeopardy. Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of Representatives. SO ORDERED. Mala in se vs. Mala Prohibita G.R. No. L-42288 February 16, 1935 THE PHILIPPINE ISLANDS, plaintiff-appellee,

THE PEOPLE OF vs. CORNELIO BAYONA, defendant-appellant. Gervasio Diaz Office of the Solicitor-General Hilado for appellee. VICKERS, J.:

for

appellant.

This is an appeal from a decision of Judge Braulio Bejasa in the Court of First Instance of Capiz, finding the defendant guilty of a violation of section 416 of the Election Law and sentencing him to suffer imprisonment for thirty days and to pay a fine of P50, with subsidiary imprisonment in case of insolvency, and to pay the costs. The facts as found by the trial judge are as follows: A eso de las once de la maana del dia 5 de junio de 1934, mientras se celebrahan las elecciones generales en el precinto electoral numero 4, situado en el Barrio de Aranguel del Municipio de Pilar, Provincia de Capiz, el aqui acusado fue sorprendido por Jose E. Desiderio, que era entonces el representante del Departamento del Interior para inspecionar las elecciones generales en la Provincia de Capiz, y por el comandante de la Constabularia F.B. Agdamag que iba en aquella ocasion con el citado Jose E. Desiderio, portando en su cinto el revolver Colt de calibre 32, No. 195382, Exhibit A, dentro del cerco que rodeaba el edificio destinado para el citado colegio electoral numero 4 y a una distancia de 22 metros del referido colegio electoral. Inmediatament Jose E. Desiderio se incauto del revolver en cuestion.

La defensa, por medio del testimonio de Jose D. Benliro y de Dioscoro Buenvenida, trato de establecer que el aqui acusado paro en la calle que daba frente al colegio electoral numero 4 a invitacion de dicho Jose D. Benliro y con el objeto de suplicarle al mencionado acusado para llevar a su casa a los electores del citado Jose D. Benliro que ya habian terminado de votar, y que cuando llegaron Jose E. Desidierio y el comadante F.B. Agdamag, el aqui acusado estaba en la calle. Desde el colegio electoral hasta el sitio en que, segun dichos testigos, estaba el acusado cuando se le quito el revolver Exhibit a, hay una distancia de 27 metros. Appellant's attorney makes the following assignments of error: 1. El Juzgado a quo erro al declarar que el apelante fue sorprendido con su revolver dentro del cerco de la casa escuela del Barrio de Aranguel, Municipio de Pilar, que fue habilitado como colegio electoral. 2. El Juzgado a quo erro al declarar al apelante culpable de la infraccion de la Ley Electoral querrellada y, por consiguiente, al condenarle a prision y multa. As to the question of fact raised by the first assignment of error, it is sufficient to say that the record shows that both Jose E. Desiderio, a representative of the Department of the Interior, and Major Agdamag of the Philippine Constabulary, who had been designated to supervise the elections in the Province of Capiz, testified positively that the defendant was within the fence surrounding the polling place when Desiderio took possession of the revolver the defendant was carrying. This also disposes of that part of the argument under the second assignment of error based on the theory that the defendant was in a public road, where he had a right to be, when he was arrested. The latter part of the argument under the second assignment of error is that if it be conceded that the defendant went inside of the fence, he is nevertheless not guilty of a violation of the Election Law, because he was called by a friend and merely approached him to find out what he wanted and had no interest in the election; that there were many people in the public road in front of the polling place, and the defendant could not leave his revolver in his automobile, which he himself was driving, without running the risk of losing it and thereby incurring in a violation of the law. As to the contention that the defendant could not leave his revolver in his automobile without the risk of losing it because he was alone, it is sufficient to say that under the circumstances it was not necessary for the defendant to leave his automobile merely because somebody standing near the polling place had called him, nor does the record show that it was necessary for the defendant to carry arms on that occasion. The Solicitor-General argues that since the Government does not especially construct buildings for electoral precincts but merely utilizes whatever building there may be available, and all election precincts are within fifty meters from some road, a literal application of the law would be absurd, because members of the police force or Constabulary in pursuit of a criminal would be included in that prohibition and could not use the road in question if they were carrying firearms; that people living in the vicinity of electoral precincts would be prohibited from cleaning or handling their firearms within their own residences on registration and election days; That the object of the Legislature was merely to prohibit the display of firearms with intention to influence in any way the free and voluntary exercise of suffrage; That if the real object of the Legislature was to insure the free exercise of suffrage, the prohibition in question should only be applied when the facts reveal that the carrying of the firearms was intended for the purpose of using them directly or indirectly to influence the free choice of the electors (citing the decision of this court in the case of People vs. Urdeleon [G.R. No. 31536, promulgated November 20, 1929, not reported], where a policeman, who had been sent to a polling place to preserve order on the request of the chairman of the board of election inspectors, was acquitted); that in the case at bar there is no evidence that the defendant went to the election precinct either to vote or to work for the candidacy of anyone, but on the other hand the evidence shows that the defendant had no intention to go to the electoral precinct; that he was merely passing along the road in front of the building where the election was being held when a friend of his called him; that while in the strict, narrow interpretation of the law the defendant is guilty, it would be inhuman and unreasonable to convict him. We cannot accept the reasons advanced by the Solicitor-General for the acquittal of the defendant. The law which the defendant violated is a statutory provision, and the intent with which he violated it is immaterial. It may be conceded that the defendant did not intend to intimidate any elector or to violate the law in any other way, but when he got out of his automobile and carried his revolver inside of the fence surrounding the polling place, he committed the act complained of, and he committed it willfully. The act prohibited by the Election Law was complete. The intention to intimidate the voters or to interfere otherwise with the election is not made an essential element of the offense. Unless such an offender actually makes use of his revolver, it would be extremely difficult, if not impossible, to prove that he intended to intimidate the voters. The rule is that in acts mala in se there must be a criminal intent, but in those mala prohibita it is sufficient if the prohibited act was intentionally done. "Care must be exercised in distinguishing the difference between the intent to commit the crime and the intent to perpetrate the act. ..." (U.S. vs. Go Chico, 14 Phil., 128.) While it is true that, as a rule and on principles of abstract justice, men are not and should not be held criminally responsible for acts committed by them without guilty knowledge and criminal or at least evil intent (Bishop's New Crim. Law, vol. I, sec.

286), the courts have always recognized the power of the legislature, on grounds of public policy and compelled by necessity, "the great master of things", to forbid in a limited class of cases the doing of certain acts, and to make their commission criminal without regard to the intent of the doer. (U.S. vs. Go Chico, 14 Phil., 128; U.S. vs. Ah Chong, 15 Phil., 488.) In such cases no judicial authority has the power to require, in the enforcement of the law, such knowledge or motive to be shown. (U.S. vs. Siy Cong Bieng and Co Kong, 30 Phil., 577.) The cases suggested by the Solicitor-General do not seem to us to present any difficulty in the enforcement of the law. If a man with a revolver merely passes along a public road on election day, within fifty meters of a polling place, he does not violate the provision of law in question, because he had no intent to perpetrate the act prohibited, and the same thing would be true of a peace officer in pursuing a criminal; nor would the prohibition extend to persons living within fifty meters of a polling place, who merely clean or handle their firearms within their own residences on election day, as they would not be carrying firearms within the contemplation of the law; and as to the decision in the case of People vs. Urdeleon, supra, we have recently held in the case of People vs. Ayre, and Degracia (p. 169, ante), that a policeman who goes to a polling place on the request of the board of election inspectors for the purpose of maintaining order is authorized by law to carry his arms. If we were to adopt the specious reasoning that the appellant should be acquitted because it was not proved that he tried to influence or intended to influence the mind of any voter, anybody could sell intoxicating liquor or hold a cockfight or a horse race on election day with impunity. As to the severity of the minimum penalty provided by law for a violation of the provision in question, that is a matter for the Chief Executive or the Legislature. For the foregoing reasons, the decision appealed from is affirmed, with the costs against the appellant. Avancea, C.J., Street, Abad Santos, and Hull, JJ., concur. G.R. No. 4963 September 15, 1909 UNITED STATES, plaintiff-appellee,

THE vs. GO CHICO, defendant-appellant.

Gibbs and Office of the Solicitor-General Harvey for appellee. MORELAND, J.:

Gale

for

appellant.

The defendant is charged with the violation of section 1 of Act No. 1696 of the Philippine Commission, which reads as follows: Any person who shall expose, or cause or permit to be exposed, to public view on his own premises, or who shall expose, or cause to be exposed, to public view, either on his own premises or elsewhere, any flag, banner, emblem, or device used during the late insurrection in the Philippine Islands to designate or identify those in armed rebellion against the United States, or any flag, banner, emblem, or device used or adopted at any time by the public enemies of the United States in the Philippine Island for the purpose of public disorder or of rebellion or insurrection against the authority of the United States in the Philippine Islands, or any flag, banner, emblem, or device of the Katipunan Society, or which is commonly known as such, shall be punished by a fine of not less that five hundred pesos for more than five thousand pesos, or by imprisonment for not less than three months nor more than five years, or by both such fine and imprisonment, in the discretion of the court. The defendant was tried in the Court of First Instance of the city of Manila on the 8th day of September, 1908. After hearing the evidence adduced the court adjudged the defendant guilty of the crime charged and sentenced him under that judgment to pay a fine of P500, Philippine currency, and to pay the costs of the action, and to suffer subsidiary imprisonment during the time and in the form and in the place prescribed by law until said fine should be paid. From that judgment and sentence the defendant appealed to this court. A careful examination of the record brought to this court discloses the following facts: That on or about the 4th day of August, 1908, in the city of Manila, the appellant Go Chico displayed in one of the windows and one of the show cases of his store, No. 89 Calle Rosario, a number of medallions, in the form of a small button, upon the faces of which were imprinted in miniature the picture of Emilio Aguinaldo, and the flag or banner or device used during the late insurrection in the Philippine Islands to designate and identify those in armed insurrection against the United States. On the day previous to the one above set forth the appellant had purchased the stock of goods in said store, of which the medallions formed a part, at a public sale made under authority of the sheriff of the city of Manila. On the day in question, the 4th of August aforesaid, the appellant was arranging his stock of goods for the purpose of displaying them to the public and in so doing placed in his showcase and in one of the windows of his store the medallions described. The appellant was ignorant

of the existence of a law against the display of the medallions in question and had consequently no corrupt intention. The facts above stated are admitted. The appellant rests his right to acquittal upon two propositions: First. That before a conviction under the law cited can be had, a criminal intent upon the part of the accused must be proved beyond a reasonable doubt. Second. That the prohibition of the law is directed against the use of the identical banners, devices, or emblems actually used during the Philippine insurrection by those in armed rebellion against the United States. In the opinion of this court it is not necessary that the appellant should have acted with the criminal intent. In many crimes, made such by statutory enactment, the intention of the person who commits the crime is entirely immaterial. This is necessarily so. If it were not, the statute as a deterrent influence would be substantially worthless. It would be impossible of execution. In many cases the act complained of is itself that which produces the pernicious effect which the statute seeks to avoid. In those cases the pernicious effect is produced with precisely the same force and result whether the intention of the person performing the act is good or bad. The case at bar is a perfect illustration of this. The display of a flag or emblem used particularly within a recent period, by the enemies of the Government tends to incite resistance to governmental functions and insurrection against governmental authority just as effectively if made in the best of good faith as if made with the most corrupt intent. The display itself, without the intervention of any other factor, is the evil. It is quite different from that large class of crimes, made such by the common law or by statute, in which the injurious effect upon the public depends upon the corrupt intention of the person perpetrating the act. If A discharges a loaded gun and kills B, the interest which society has in the act depends, not upon B's death, upon the intention with which A consummated the act. If the gun were discharged intentionally, with the purpose of accomplishing the death of B, then society has been injured and its security violated; but if the gun was discharged accidentally on the part of A, then society, strictly speaking, has no concern in the matter, even though the death of B results. The reason for this is that A does not become a danger to society and institutions until he becomes a person with a corrupt mind. The mere discharge of the gun and the death of B do not of themselves make him so. With those two facts must go the corrupt intent to kill. In the case at bar, however, the evil to society and the Governmental does not depend upon the state of mind of the one who displays the banner, but upon the effect which that display has upon the public mind. In the one case the public is affected by the intention of the actor; in the other by the act itself. It is stated in volume 12 of Cyc., page 148, that The legislature, however, may forbid the doing of an act and make its commission a crime without regard to the intent of the doer, and if such an intention appears the courts must give it effect although the intention may have been innocent. Whether or not in a given case the statute is to be so construed is to be determined by the court by considering the subject-matter of the prohibition as well as the language of the statute, and thus ascertaining the intention of the legislature. In the case of The People vs. Kibler (106 N. Y., 321) the defendant was charged with the sale of adulterated milk under a statute reading as follows: No person or persons shall sell or exchange or expose for sale or exchange any impure, unhealthy, adulterated, of unwholesome milk. It was proved in that case that one Vandeburg purchased at the defendant's store 1 pint of milk which was shown to contain a very small percentage of water more than that permitted by the statute. There was no dispute about the facts, but the objection made by the defendant was that he was not allowed, upon the trial, to show an absence of criminal intent, or to go the jury upon the question whether it existed, but was condemned under a charge from the court which made his intent totally immaterial and his guilt consist in having sold the adulterated article whether he knew it or not and however carefully he may have sought to keep on hand and sell the genuine article. The opinion of the court in that case says: As the law stands, knowledge or intention forms no elements of the offense. The act alone, irrespective of its motive, constitutes the crime. xxx xxx xxx

It is notorious that the adulteration of food products has grown to proportions so enormous as to menace the health and safety of the people. Ingenuity keeps pace with greed, and the careless and heedless consumers are exposed to increasing perils. To redress such evils is a plain duty but a difficult task. Experience has taught the lesson that repressive measures which depend for their efficiency upon proof of the dealer's knowledge or of his intent to deceive and defraud are of title use and rarely accomplish their purpose. Such an emergency may justify legislation which throws upon the seller the entire responsibility of the purity and soundness of what he sells and compels him to know and certain.

In the case of Gardner vs. The People (62 N. Y., 299) the question arose under a statute which provided that an inspector of elections of the city of New York should not be removed from office except "after notice in writing to the officer sought to be removed, which notice shall set forth clearly and distinctly the reasons for his removal," and further provided that any person who removed such an officer without such notice should be guilty of a misdemeanor. An officer named Sheridan was removed by Gardener, the defendant, without notice. Gardener was arrested and convicted of a misdemeanor under the statute. He appealed from the judgment of conviction and the opinion from which the following quotation is made was written upon the decision of that appeal. Chief Justice Church, writing the opinion of the court, says in relation to criminal intent: In short, the defense was an honest misconstruction of the law under legal device. The court ruled out the evidence offered, and held that intentionally doing the act prohibited constituted the offense. It is quite clear that the facts offered to be shown, if true, would relieve the defendant from the imputation of a corrupt intent, and, indeed, from any intent to violate the statute. The defendants made a mistake of law. Such mistakes do not excuse the commission of prohibited acts. "The rule on the subject appears to be, that in acts mala in se, intent governs but in those mala prohibit a, the only inquiry is, has the law been violated? xxx xxx xxx

The authorities seem to establish that sustain and indictment for doing a prohibited act, it is sufficient to prove that the act was knowingly and intentionally done. xxx xxx xxx

In this case, if the defendants could have shown that they believed that in fact notice had been given to the inspector, although it had not, they would not have been guilty of the offense, because the intention to do the act would have been wanting. Their plea is: True, we intended to remove the inspector without notice, but we thought the law permitted it. This was a mistake of law, and is not strictly a defense. xxx xxx xxx

If the offense is merely technical, the punishment can be made correspondingly nominal; while a rule requiring proof of a criminal intent to violate the statute, independent of an intent to do the act which the statute declares shall constitute the offense, would, in many cases, prevent the restraining influence which the statute was designed to secure. In the case of Fiedler vs. Darrin (50 N.Y., 437) the court says: But when an act is illegal, the intent of the offender is immaterial. In the case of The Commonwealth vs. Murphy (165 Mass., 66) the court says: In general, it may be said that there must be malus animus, or a criminal intent. But there is a large class of cases in which, on grounds of public policy, certain acts are made punishable without proof that the defendant understands the facts that give character to his act. In such cases it is deemed best to require everybody at his peril to ascertain whether his act comes within the legislative prohibition. xxx xxx xxx

Considering the nature of the offense, the purpose to be accomplished, the practical methods available for the enforcement of the law, and such other matters as throw light upon the meaning of the language, the question in interpreting a criminal statute is whether the intention of the legislature was to make knowledge of the facts an essential element of the offense, or to put upon everyone the burden of finding out whether his contemplated act is prohibited, and of refraining from it if it is. In the case of Halsted vs. The State (41 N. J. L., 552; 32 Am. Rep., 247), the question of a criminal intent arose under a statute, under which the defendant was convicted of a crime, providing that if any township committee or other body shall disburse or vote for the disbursement of public moneys in excess of appropriations made for the purpose, the persons constituting such board shall be guilty of a crime. The defendant was one who violated this law by voting to incur obligations in excess of the appropriation. He was convicted and appealed and the opinion from which the quotation is taken was written upon a decision of that appeal. That court says: When the State had closed, the defense offered to show that the defendant, in aiding in the passage and effectuation of the resolution which I have pronounced to be illegal, did so under the advice of counsel and in good faith, and from pure and honest motives, and that he therein exercise due care and caution.

xxx

xxx

xxx

As there is an undoubted competency in the lawmaker to declare an act criminal, irrespective of the knowledge or motive of the doer of such act, there can be of necessity, no judicial authority having the power to require, in the enforcement of the law, such knowledge or motive to be shown. In such instances the entire function of the court is to find out the intention of the legislature, and to enforce the law in absolute conformity to such intention. And in looking over the decided cases on the subject it will be found that in the considered adjudications this inquiry has been the judicial guide. In the case of Rex vs. Ogden (6 C. & P., 631; 25 E. C. L., 611), the prisoner was indicted for unlawfully transposing from one piece of wrought plate to another the lion-poisson contrary to the statutes. It was conceded that the act was done without any fraudulent intention. The court said: There are no words in the act of Parliament referring to any fraudulent intention. The words of it are, 'Shall transpose or remove, or cause of procure to be transposed or removed, from one piece of wrought plate to another. In the case of The State vs. McBrayer (98 N. C., 623) the court stated: It is a mistaken notion that positive, willful intent to violate the criminal law is an essential ingredient in every criminal offense, and that where is an absence of such intent there is no offense; this is especially true as to statutory offenses. When the statute plainly forbids an act to be done, and it is done by some person, the law implies conclusively the guilty intent, although the offender was honestly mistaken as to the meaning of the law he violates. When the language is plain and positive, and the offense is not made to depend upon the positive, willful intent and purpose, nothing is left to interpretation. In the case of the Commonwealth vs. Weiss (139 Pa. St., 247), the question arose on an appeal by the defendant from a judgment requiring him to pay a penalty for a violation of the statute of the State which provided that any person would be liable to pay a penalty "who shall manufacture, sell, or offer or expose for sale, or have in his possession with intent to sell," oleomargarine, etc. At the trial the defendant requested the court to instruct the injury that if they believed, from the evidence, that the defendant did not knowingly furnish or authorize to be furnished, or knew of there furnished, to any of his customers any oleomargarine, but, as far as he knew, furnished genuine butter, then the verdict must be for the defendant. The court refused to make the charge as requested and that is the only point upon which the defendant appealed. The court says: The prohibition is absolute and general; it could not be expressed in terms more explicit and comprehensive. The statutory definition of the offense embraces no word implying that the forbidden act shall be done knowingly or willfully, and if it did, the designed purpose of the act would be practically defeated. The intention of the legislature is plain, that persons engaged in the traffic so engage in it at their peril and that they can not set up their ignorance of the nature and qualities of the commodities they sell, as a defense. The following authorities are to the same effect: State vs. Gould (40 Ia., 374); Commonwealth vs. Farren (9 Allen, 489); Commonwealth vs. Nichols (10 Allen, 199); Commonwealth vs. Boyton (2 Allen, 160); Wharton's Criminal Law, section 2442; Commonwealth vs. Sellers (130 Pa., 32); 3 Greenleaf on Evidence, section 21; Farrell vs. The State (32 Ohio State, 456); Beekman vs. Anthony (56 Miss., 446); The People vs. Roby (52 Mich., 577). It is clear from the authorities cited that in the act under consideration the legislature did not intend that a criminal intent should be a necessary element of the crime. The statutory definition of the offense embraces no word implying that the prohibited act shall be done knowingly or willfully. The wording is plain. The Act means what it says. Nothing is left to the interpretation. Care must be exercised in distiguishing the differences between the intent to commit the crime and the intent to perpetrate the act. The accused did not consciously intend to commit a crime; but he did intend to commit an act, and the act is, by the very nature of things, the crime itself intent and all. The wording of the law is such that the intent and the act are inseparable. The act is the crime. The accused intended to put the device in his window. Nothing more is required to commit the crime. We do not believe that the second proposition of the accused, namely, that the law is applicable only to the identical banners, etc., actually used in the late insurrection, and not to duplicates of those banners, can be sustained. It is impossible that the Commission should have intended to prohibit the display of the flag or flags actually used in the insurrection, and, at the same time, permit exact duplicates thereof (saving, perhaps, size) to be displayed without hindrance. In the case before us, to say that the display of a certain banner is a crime and that the display of its exact duplicate is not is to say nonsense. The rules governing the interpretation of statutes are rules of construction not destruction. To give the interpretation contended for by the appellant would, as to this particular provision, nullify the statute altogether. The words "used during the late insurrection in the Philippine Islands to designate or identity those in armed rebellion against the United States" mean not only the identical flags actually used in the insurrection, but any flag which is of that type. This

description refers not to a particular flag, but to a type of flag. That phrase was used because there was and is no other way of describing that type of flag. While different words might be employed, according to the taste of the draftsman, the method of description would have to be the same. There is no concrete word known by which that flag could be aptly or properly described. There was no opportunity, within the scope of a legislative enactment, to describe the physical details. It had no characteristics whatever, apart from its use in the insurrection, by which it could, in such enactment, be identified. The great and the only characteristic which it had upon the which the Commission could seize as a means of description and identification was the fact that it was used in the insurrection. There was, therefore, absolutely no way in which the Commission could, in the Act, describe the flag except by reciting where and how it was used. It must not be forgotten that the Commission, by the words and phrases used, was not attempting to describe a particular flag, but a type of flag. They were not describing a flag used upon a particular field or in a certain battle, but a type of flag used by an army a flag under which many persons rallied and which stirred their sentiments and feelings wherever seen or in whatever form it appeared. It is a mere incident of description that the flag was used upon a particular field or in a particular battle. They were describing the flag not a flag. It has a quality and significance and an entity apart from any place where or form in which it was used. Language is rarely so free from ambiguity as to be incapable of being used in more than one sense, and the literal interpretation of a statute may lead to an absurdity or evidently fail to give the real intent of the legislature. When this is the case, resort is had to the principle that the spirit of a law controls the letter, so that a thing which is within the intention of a statute is as much within the statute as if it were within the letter, and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers, and the statute should be construed as to advance the remedy and suppress the mischief contemplated by the framers. (U. S. vs. Kirby, 7 Wall., 487; State Bolden, 107 La., 116, 118; U.S. vs. Buchanan, 9 Fed. Rep., 689; Green vs. Kemp, 13 Mass., 515; Lake Shore R. R. Co. vs. Roach, 80 N. Y., 339; Delafield vs. Brady, 108 N. Y., 524 Doyle vs. Doyle, 50 Ohio State, 330.) The intention of the legislature and the object aimed at, being the fundamental inquiry in judicial construction, are to control the literal interpretation of particular language in a statute, and language capable of more than one meaning is to be taken in that sense which will harmonize with such intention and object, and effect the purpose of the enactment. (26 Am. & Eng. Ency. of Law., 602.) Literally hundreds of cases might be cited to sustain this proposition. The preamble is no part of the statute, but as setting out the object and intention of the legislature, it is considered in the construction of an act. Therefore, whenever there is ambiguity, or wherever the words of the act have more than one meaning, and there is no doubt as to the subject-matter to which they are to be applied, the preamble may be used." (U. S. vs. Union Pacific R. R. Co., 91 U. S., 72; Platt vs. Union Pacific R. R. Co., 99 U. S., 48; Myer vs.Western Car Co., 102 U. S., 1; Holy Trinity Church vs. U. S., 143 U. S., 457; Coosaw Mining Co. vs. South Carolina, 144 U. S., 550; Cohn vs. Barrett, 5 Cal., 195; Barnes vs. Jones, 51 Cal., 303; Field vs. Gooding, 106 Mass., 310; People vs. Molineaux, 40 N. Y., 113; Smith vs. The People, 47 N. Y., 330; The People vs. Davenport, 91 N.Y., 547; The People vs. O'Brien, 111 N.Y., 1) The statute, then, being penal, must be construed with such strictness as to carefully safeguard the rights of the defendant and at the same time preserve the obvious intention of the legislature. If the language be plain, it will be construed as it reads, and the words of the statute given their full meaning; if ambiguous, the court will lean more strongly in favor of the defendant than it would if the statute were remedial. In both cases it will endeavor to effect substantial justice." (Bolles vs. Outing Co., 175 U. S., 262, 265; U. S. vs. Wiltberger, 5 Wheat., 76, 95; U. S. vs.Reese, 92 U. S., 214) It is said that notwithstanding this rule (the penal statutes must be construde strictly) the intention of the lawmakers must govern in the construction of penal as well as other statutes. This is true, but this is not a new, independent rule which subverts the old. It is a modification of the known maxim and amounts to this -- that though penal statutes are to be construed strictly, they are not be construed so strictly as to defeat the obvious purpose of the legislature. (U. S. vs. Wiltberger, 5 Wheat., 76; Taylor vs. Goodwin, L. R. 4, Q. B. Civ., 228.) In the latter case it was held that under a statute which imposed a penalty for "furiously driving any sort of carriage" a person could be convicted for immoderately driving a bicycle. It is presumed that the legislature intends to impart to its enactments such a meaning as will render then operative and effective, and to prevent persons from eluding or defeating them. Accordingly, in case of any doubt or obscurity, the construction will be such as to carry out these objects. (Black, Interpretation of Laws, p. 106.) In The People vs. Supervisors (43 N. Y., 130) the court said: The occasion of the enactment of a law always be referred to in interpreting and giving effect to it. The court should place itself in the situation of the legislature and ascertain the necessity and probable object of the statute, and then give such construction to the language used as to carry the intention of the legislature into effect so far as it can be ascertained from the terms of the statute itself. (U. S. vs. Union Pacific R. R. Co., 91 U. S., 72, 79.)

We do not believe that in construing the statute in question there is necessity requiring that clauses should be taken from the position given them and placed in other portions of the statute in order to give the whole Act a reasonable meaning. Leaving all of the clauses located as they now are in the statute, a reasonable interpretation, based upon the plain and ordinary meaning of the words used, requires that the Act should be held applicable to the case at bar. The judgment of the court below and the sentence imposed thereunder are hereby affirmed. So ordered. Arellano, C. J., Torres, and Carson, JJ., concur. Art. 4 Criminal Liability G.R. No. L-35574 September 28, 1984 PEOPLE OF THE vs. VALENTINA MANANQUIL Y LAREDO, defendant-appellant. The Solicitor General for plaintiff-appellee. Herminio Sugay for defendant-appellant. PHILIPPINES, plaintiff-appellee,

CUEVAS, J.: In an amended Information 1 filed before the then Court of First Instance of Rizal, VALENTINA MANANQUIL y LAREDO was accused of PARRICIDE allegedly committed as follows: That on or about the 6th day of March, 1965, in Pasay City, Philippines, and within the jurisdiction of this Hon. Court, the abovenamed accused, did then and there wilfully, unlawfully and feloniously, with evident premeditation, that is, having conceived and deliberated to kill her husband, Elias Day y Pablo, with whom she was united in lawful wedlock, enter (sic) the NAWASA building situated at Pasay City, where said Elias Day y Pablo was working as a security guard; and the said accused, having in her possession a bottle containing gasoline suddenly and without warning, poured the contents on the person of her husband, Elias Day y Pablo, ignited the gasoline, as a result of which, said Elias Day y Pablo suffered burns and injuries which subsequently caused his death. Contrary to law 2 Tried after pleading "NOT GUILTY" upon arraignment, accused was convicted and thereafter sentenced to reclusion perpetua to indemnify the heirs of the deceased in the amount of P12,000.00; and to pay costs. From the aforesaid judgment, she ventilated an appeal to the then Court of Appeals (which referred the appeal to us considering that the penalty imposed was reclusion perpetua, assailing her aforesaid conviction and contending that the trial court erred: 1) in convicting her solely on the basis of the alleged extrajudicial confession; 2) in finding that Pneumonia was a complication of the burns sustained by the victim; 3) in not finding her not to have cause the death of the deceased; and 4) in not acquitting her at least on ground of reasonable doubt. The prosecution's version of the incident as summarized in the People's Brief is as follows: On March 6, 1965, at about 11:00 o'clock in the evening, appellant went to the NAWASA Building at Pasay City where her husband was then working as a security guard. She had just purchased ten (10) centavo worth of gasoline from the Esso Gasoline Station at Taft Avenue which she placed in a coffee bottle (t.s.n., p. 13, January 13, 1969). She was angry of her husband, Elias Day y Pablo, because the latter had burned her clothing, was maintaining a mistress and had been taking all the food from their house. Upon reaching the NAWASA Building, she knocked at the door. Immediately, after the door was opened, Elias Day shouted at the appellant and castigated her saying, "PUTA BUGUIAN LAKAW GALIGAON" (t.s.n., p. 14, Id). The appellant tired of hearing the victim, then got the bottle of gasoline and poured the contents thereof on the face of the victim (t.s.n., p. 14, Id). Then, she got a matchbox and set the polo shirt of the victim a flame. (Exhs. "A" and "A-1", p. 197, Rec.) The appellant was investigated by elements of the Pasay City Police to whom she gave a written statement (Exh. "A", p. 197, Rec.) where she admitted having burned the victim.

Upon the other hand, the victim was taken first to the Philippine General Hospital and then to the Trinity General Hospital at Sta. Ana, Manila, when he died on March 10, 1965. (Exh. "C", p. 208, rec.) due to pneumonia, lobar bilateral Burns 2 secondary. 3 Appellant's story on the other hand runs, thus: It was before 10:00 o'clock p.m. when appellant returned from Olongapo City. She fed her grandson and put him to bed. After filing the tank with water, she remembered that the next day was a Sunday and she had to go to church. Her shoes were dirty but there was no gasoline with which to clean them. Taking with her an empty bottle of Hemo, she left for a nearby gasoline station and bought ten centavos worth of gasoline. Then she remembered that her husband needed gasoline for his lighter so she dropped by his place of work. (p. 13, Ibid.) Appellant saw her husband inside a bonding of the NAWASA standing by the window. As the iron grille was open, she entered and knocked at the wooden door. Elias opened the door, but when he saw his wife he shouted at her. Appellant said that she had brought the gasoline which he needed for his lighter, but Elias, who was under the influence of liquor, cursed her thus: "PUTA BUGUIAN LAKAW GALIGAON". Elias continued shouting and cursing even as appellant told him that she had come just to bring the gasoline that he wanted. Appellant trembled and became dizzy. She was beside herself and did not know that she was sprinkling the gasoline on her husband's face. She was tired and dizzy and had to sit down for a while. Then she remembered her grandson who was alone in the house so she went home leaving her husband who was walking to and fro and not paying attention to her. (pp. 13-14, Ibid., p. 2, March 20, 1969) She went to bed but could not sleep. She went back to the NAWASA compound to apologize to her husband. Upon reaching the NAWASA, however, she found that police officers were present. Her husband was walking all around still fuming mad, and when he saw her he chased her. A policeman pulled appellant aside and asked if she was the wife of Elias. When she replied in the affirmative, the police officer accused her of burning her husband. She denied the accusation. But the police took her to the headquarters, and prepared a written statement, Exhibits A, A-1. Appellant was made to sign said statement upon a promise that she would be released if she signed it. Although she did not know the contents, she signed it because of the promise. (pp. 14-16. Id.; p. 5, March 20,1969) 4 Appellant's assigned errors boil down to two (2) main issues: (1) whether or not appellant's extrajudicial confession was voluntarily given; and (2) whether or not the burns sustained by the victim contributed to cause pneumonia which was the cause of the victim's death. Right after the burning incident, appellant was picked up by the police operatives of Pasay City. She was thereafter investigated by Sgt. Leopoldo Garcia of the Pasay City Police who took her statement in Tagalog and in Question and Answer form which was reduced into writing. 5 After Sgt. Garcia was through taking her statement, she was brought to Fiscal Paredes who asked her questions regarding the said statement and its execution and before whom said statement was subscribed and sworn to by her. In that investigation, appellant categorically admitted having thrown gasoline at her husband and thereafter set him aflame as evidenced by this pertinent portion of her statementT Ano ang nangyari at iyong binuksan ng gasolina ang iyong asawa na si Elias Day? S Dahil may sala siya, at sinunog niya ang aking mga damit, at may babae pa, at saka lahat ng aming pagkain sa bahay ay hinahakot. T Ng dahil dito sa mga binanggit mong ito ay ano ang ginawa mo sa iyong asawa? S Ako po ay nagdilim ang aking isipan at ang ginawa ko ay naisip kong buhusan ng gasolina, kaya ang aking ginawa ay bumili ako ng halagang 10 sentimos sa Esso Gasoline Station sa Tall Avenue at inilagay ko sa isang boti. T Pagkatapos na ikaw ay makabili ng gasolina sa station ng Esso sa Taft Avenue dito sa Pasay City, ay ano ang ginawa mo? S Ako po ay nagpunta sa kanya na pinaggoguardiahan sa Nawasa at pagdating ko nuon ay kumatok ako sa pintuan ng Nawasa, at nang marinig niya ang aking katok sa pinto ay binuksan niya ang pintuan, at pagkabukas ng pintuan ay nakita niya ako, at nagalit siya at ako ay minura ng puta putan Ina mo, lalakad ka ng gabi, at namumuta raw ako, at pagkatapos na ako ay mamura ay hinahabol pa ako ng suntok, kayat ang ginawa ko po kinuha ko ang aking dalang bote na may gasolina at aking ibinuhos sa kanyang katawan at aking kinuha ang posporo at aking sinindihang at hangang magliyab ang suot niyang polo shirt, na may guhit na itim at puti. T Alam mo ba na kung ano ang iyong ginawa sa iyong asawa kanginang humigit kumulang na mag-iika alas 11:00 ng gabi Marzo 6, 1965? S Opo, aking sinunog ang aking asawa. (Exhs. A & A-1 Emphasis supplied)

She would now like her aforesaid extrajudicial confession discredited by asserting that she did not understand its contents because she is not a Tagala aside from having reached only the primary grades; and furthermore, that said statement was signed by her merely upon the promise of the policemen that she will later be released. We find appellant's aforesaid assertions a mere pretense too flimsy to be accepted as true. For the truth is that appellant knew and understood Tagalog despite her not being a Tagala, having stayed in Manila since 1951, continuously up to the time of the burning incident in question for which she was investigated. During this period of almost fourteen years, she was in daily association with Tagalogs communicating with them in Pilipino. This is clear from her admission on cross-examination which runs thusQ But you can understand Tagalog because of the length of time that you litem been living here in Manila? A Yes. Q And as a matter of fact, when you buy something from the store, you speak Tagalog? A Yes. Q And when you ride in a jeep or bus, you speak Tagalog? A Yes. Q And you were well understood by these Tagalog people? A Yes. Q And as a matter of fact, you can understand Tagalog? A Yes, Q And you can also read Tagalog? A Yes. Q You can read? A Yes, but I do not litem interest to read. TSN, March 29, 1969, pp. 11-12). All through shout the entire investigation and even at the time appellant A as before Fiscal Paredes, before whom she subscribed and swore to the truth of an what appeared in her statement, 6 no denunciation of any sort was made nor levelled by her against the police investigators. Neither was there any complaint aired by her to the effect that she merely affixed her signatures thereto because of the promise by the police that she will be released later. We therefore find her aforesaid claim highly incredible and a mere concoction. For why will the police still resort to such trickery when the very sworn statement given by her proved by its contents that appellant was indeed very cooperative. In fact, almost all the recitals and narrations appearing in the said statement were practically repeated by her on the witness stand thus authenticating the truth and veracity of her declarations contained therein. Moreover, We find said statement replete with details which could not litem been possibly supplied by the police investigators who litem no previous knowledge of, nor acquaintance with her and the victim, especially with respect to the circumstances and incidents which preceded the fatal incident that brought about the death of the latter. We therefore find no error in the trial court's pronouncement that appellant's sworn statement was voluntarily given by her; that she fully understood its contents; and that she willingly affixed her signatures thereto. Well settled is the rule that extrajudicial confession may be regarded as conclusive proof of guilt when taken without maltreatment or intimidation 7 and may serve as a basis of the declarant's conviction. 8 It is presumed to be voluntary until the contrary is proven. The burden of proof is upon the person who gave the confession. 9 That presumption has not been overcome in the instant case. Indeed the trial court could not be faulted for relying heavily on accused-appellant's sworn statement in assessing her guhit since it was given shortly after the incident took place. By then, she had yet no time to concoct any fabrication favorable to her. Shock by the aftermath consequences of her criminal design she must litem been motivated by no other purpose except to admit the undeniable. On the other hand, when she took the witness stand, disclaiming any responsibility for the burning of her husband, it was already January 13, 1969 . . . more than five years after the incident and decidedly after she had the benefit of too many consultations.

That appellant has murder in her heart and meant to do harm to her husband when she went to the latter's place of work on that fatal night and intended an the consequences of her nefarious act finds clearer manifestation and added support in her total indifference and seemingly unperturbed concern over the fate that had befallen the victim . . . her husband . . . especially at times when he needed her most. Being the wife, she must be the closest to him and the hardest hit by the mishap if she has not authored the same nor voluntarily participated therein. She was then reasonably expected to come to his succor and alleviate him from his sufferings. And yet, the records do not show her having seen her husband even once while the latter lay seriously ill at the hospital hovering between life and death. Neither did she attend his funeral nor was she ever present during the wake while the victim's remains lay in state. That she was under detention does not excuse nor justify those glaring and significant omissions. For she could litem asked the court's permission for any of the enumerated undertakings which we believe would not litem been denied. But she did not even attempt. Indeed, the more we scrutinize appellant's alibi and explanation, we become more convinced of the falsity and incredibility of her assertions. For instance, her claim that her purpose in buying gasoline at so an unholy hour of the night, past ten o clock in the evening, solely for the purpose of cleaning her shoes which she would wear in going to church the following Sunday, hardly recommend acceptance. That she dropped at her husband's place of work also at the middle of the night for no other purpose except to deliver to him gasoline for his cigarette lighter, is likewise too taxing upon one's credulity . . . more so if we litem to consider the previous spat she had with the deceased in the morning of that fatal day. In her vain attempt to exculpate herself, appellant would like Us to believe that her husband died of pneumonia because the latter drank liquor as shown by the toxicology report indicating presence of alcohol in the victim's body. Hence, assuming she set her husband on fire, she is not criminally liable for her husband's death. We are not persuaded by appellant's aforesaid ratiocination The claim that the victim drank liquor while confined in the hospital would not suffice to exculpate the appellant. For as testified by Dr. Reyes, pneumonia could not be caused by taking alcohol. In fact, alcohol, according to him, unless taken in excessive dosage so as to produce an almost comatose condition would not cause suffocation nor effect a diminution of the oxygen content of the body. 10 In fine, as correctly pointed out by the Hon. Solicitor General, the victim's taking of liquor was not an efficient supervening cause of his death which took place on March 10, 1965, just four days after the burning. The cause of death as shown by the necropsy report is pneumonia, lobar bilateral. Burns 2' secondary. There is no question that the burns sustained by the victim as shown by The post-mortem findings immunity about 62% of the victim's entire body. The evidence shows that pneumonia was a mere complication of the burns sustained. While accepting pneumonia as the immediate cause of death, the court a quo held on to state that this could not litem resulted had not the victim suffered from second degree burns. It concluded, and rightly so, that with pneumonia having developed, the burns became as to the cause of death, merely contributory. We agree. Appellant's case falls squarely under Art, 4, Par. 1 of the Revised Penal Code which provides: Art. 4. Criminal Liability. Criminal liability shall be incurred. 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended. the essential requisites of which are: (a) that an intentional felony has been committed; and (b) that the wrong done to the aggrieved party be the direct, natural and logical consequence of the felony committed by the offender. 11 The reason for the rule as spelled out in the earlier cases of PP vs. Moldes, 61 Phil. 1, 3 & 4; and PP vs. Quianzon, 62 Phil. 162, citing 13 RCL 748, 751 is as follows One who inflicts injury on another is deemed guilty of homicide if the injury contributes immediately or immediately to the death of such other. The fact that other causes contribute to the death does not relieve the actor of responsibility. He would still be liable "even if the deceased might litem recovered if he had taken proper care of himself, or submitted to surgical operation, or that unskilled or improper treatment aggravated the wound and contributed to the death, or that death was men." caused by a surgical operation rendered necessary by the condition of the wound. The principle on which this rule is founded is one of universal application. It lies at the foundation of criminal jurisprudence. It is that every person is held to contemplate and be responsible for the natural consequences of his own acts. If a person inflicts a wound with a deadly weapon in a manner as to put life in jeopardy, and death follows as a consequence of this felonious and wicked act, it does not alter its nature or diminish its criminality to prove that other causes cooperated in producing the fatal result. Neglect of the wound or its unskilled and improper treatment which are themselves consequences of the criminal act, must in law be deemed to litem been among those which are in contemplation of the guilty party and for which he must be responsible The rule has its foundation on a wise and practical policy. A different doctrine would tend to give immunity to crime and to take away from human life a salutary and essential safeguard. Amidst the conflicting theories of medical men and the uncertainties attendant upon the treatment of bodily ailments and injuries it would be easy in many cases of homicide to raise a doubt as to the immediate cause of death, and thereby open a wide door by which persons guilty of the highest crime might escape conviction and punishment.

In convicting the accused, the trial court imposed upon her the obligation to indemnify the heirs of the deceased only in the amount of P12,000.00. That should now be increased to P30,000.00. WHEREFORE, except as thus modified, the judgment appealed from is hereby AFFIRMED with costs against appellant. It appearing however that appellant Valentina Mananquil is now 71 years of age, this Court recommends her for executive clemency. For the purpose, let His Excellency, President Ferdinand E. Marcos, be furnished with a copy of this decision thru the Hon. Minister of Justice. SO ORDERED. G.R. No. 155791. March 16, 2005 MELBA vs. DANTE ANDRES and RANDYVER PACHECO, Respondents. DECISION CALLEJO, SR., J.: At around 7:30 a.m. on November 13, 1995, eleven-year-old Edison Garcia, a Grade 4 elementary school pupil, and his playmate, Wilson Quinto, who was also about eleven years old, were at Barangay San Rafael, Tarlac, Tarlac. They saw respondents Dante Andres and Randyver Pacheco by the mouth of a drainage culvert. Andres and Pacheco invited Wilson to go fishing with them inside the drainage culvert.1 Wilson assented. When Garcia saw that it was dark inside, he opted to remain seated in a grassy area about two meters from the entrance of the drainage system.2 Respondent Pacheco had a flashlight. He, along with respondent Andres and Wilson, entered the drainage system which was covered by concrete culvert about a meter high and a meter wide, with water about a foot deep. 3 After a while, respondent Pacheco, who was holding a fish, came out of the drainage system and left 4 without saying a word. Respondent Andres also came out, went back inside, and emerged again, this time, carrying Wilson who was already dead. Respondent Andres laid the boys lifeless body down in the grassy area. 5 Shocked at the sudden turn of events, Garcia fled from the scene. 6 For his part, respondent Andres went to the house of petitioner Melba Quinto, Wilsons mother, and informed her that her son had died. Melba Quinto rushed to the drainage culvert while respondent Andres followed her.7 The cadaver of Wilson was buried without any autopsy thereon having been conducted. The police authorities of Tarlac, Tarlac, did not file any criminal complaint against the respondents for Wilsons death. Two weeks thereafter, or on November 28, 1995, National Bureau of Investigation (NBI) investigators took the sworn statements of respondent Pacheco, Garcia and petitioner Quinto.8 Respondent Pacheco alleged that he had never been to the drainage system catching fish with respondent Andres and Wilson. He also declared that he saw Wilson already dead when he passed by the drainage system while riding on his carabao. On February 29, 1996, the cadaver of Wilson was exhumed. Dr. Dominic Aguda of the NBI performed an autopsy thereon at the cemetery and submitted his autopsy report containing the following postmortem findings: POSTMORTEM FINDINGS Body in previously embalmed, early stage of decomposition, attired with white long sleeves and dark pants and placed inside a wooden coffin in a niche-apartment style. Hematoma, 14.0 x 7.0 cms., scalp, occipital region. Abrasion, 4.0 x 3.0 cms., right face, 5.0 x 3.0 cms., left forearm. Laryngo tracheal lumina congested and edematous containing muddy particles with bloody path. Lungs hyperinflated, heavy and readily pits on pressure; section contains bloody froth. Brain autolyzed and liquefied. Stomach partly autolyzed. QUINTO, Petitioners,

CAUSE OF DEATH: Asphyxia by drowning; traumatic head injuries, contributory.9 The NBI filed a criminal complaint for homicide against respondents Andres and Pacheco in the Office of the Provincial Prosecutor, which found probable cause for homicide by dolo against the two. An Information was later filed with the Regional Trial Court (RTC) of Tarlac, Tarlac, charging the respondents with homicide. The accusatory portion reads: That at around 8 oclock in the morning of November 13, 1995, in the Municipality of Tarlac, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the said accused Dante Andres and Randyver Pacheco y Suliven @ Randy, conspiring, confederating, and helping one another, did then and there willfully, unlawfully, and feloniously attack, assault, and maul Wilson Quinto inside a culvert where the three were fishing, causing Wilson Quinto to drown and die. CONTRARY TO LAW.10 After presenting Garcia, the prosecution presented Dr. Dominic Aguda, who testified on direct examination that the hematoma at the back of the victims head and the abrasion on the latters left forearm could have been caused by a strong force coming from a blunt instrument or object. The injuries in the larynx and trachea also indicated that the victim died of drowning, as some muddy particles were also found on the lumina of the larynx and trachea (" Nakahigop ng putik"). Dr. Aguda stated that such injury could be caused when a person is put under water by pressure or by force. 11 On cross-examination, Dr. Aguda declared that the hematoma on the scalp was caused by a strong pressure or a strong force applied to the scalp coming from a blunt instrument. He also stated that the victim could have fallen, and that the occipital portion of his head could have hit a blunt object. Dr. Aguda also declared that the 14x7-centimeter hematoma at the back of Wilsons head could have rendered the latter unconscious, and, if he was thrown in a body of water, the boy could have died by drowning. In answer to clarificatory questions made by the court, the doctor declared that the 4x3-centimeter abrasion on the right side of Wilsons face could have also been caused by rubbing against a concrete wall or pavement, or by contact with a rough surface. He also stated that the trachea region was full of mud, but that there was no sign of strangulation.12 After the prosecution had presented its witnesses and the respondents had admitted the pictures showing the drainage system including the inside portions thereof,13 the prosecution rested its case. The respondents filed a demurer to evidence which the trial court granted on the ground of insufficiency of evidence, per its Order dated January 28, 1998. It also held that it could not hold the respondents liable for damages because of the absence of preponderant evidence to prove their liability for Wilsons death. The petitioner appealed the order to the Court of Appeals (CA) insofar as the civil aspect of the case was concerned. In her brief, she averred that THE TRIAL COURT ERRED IN DISMISSING THE CASE AND IN RULING THAT NO PREPONDERANT EVIDENCE EXISTS TO HOLD ACCUSED-APPELLEES CIVILLY LIABLE FOR THE DEATH OF THE VICTIM WILSON QUINTO. 14 The CA rendered judgment affirming the assailed order of the RTC on December 21, 2001. It ruled as follows: The acquittal in this case is not merely based on reasonable doubt but rather on a finding that the accused-appellees did not commit the criminal acts complained of. Thus, pursuant to the above rule and settled jurisprudence, any civil action ex delicto cannot prosper. Acquittal in a criminal action bars the civil action arising therefrom where the judgment of acquittal holds that the accused did not commit the criminal acts imputed to them. (Tan v. Standard Vacuum Oil Co., 91 Phil. 672)15 The petitioner filed the instant petition for review and raised the following issues: I WHETHER OR NOT THE EXTINCTION OF RESPONDENTS CRIMINAL LIABILITY, LIKEWISE, CARRIES WITH IT THE EXTINCTION OF THEIR CIVIL LIABILITY. II WHETHER OR NOT PREPONDERANT EVIDENCE EXISTS TO HOLD RESPONDENTS CIVILLY LIABLE FOR THE DEATH OF WILSON QUINTO.16

The petitioner avers that the trial court indulged in mere possibilities, surmises and speculations when it held that Wilson died because (a) he could have fallen, his head hitting the stones in the drainage system since the culvert was slippery; or (b) he might have been bitten by a snake which he thought was the prick of a fish fin, causing his head to hit hard on the top of the culvert; or (c) he could have lost consciousness due to some ailment, such as epilepsy. The petitioner also alleges that the trial court erred in ruling that the prosecution failed to prove any ill motive on the part of the respondents to kill the victim, and in considering that respondent Andres even informed her of Wilsons death. The petitioner posits that the trial court ignored the testimony of the Medico-Legal Expert, Dr. Aguda; the nature, location and number of the injuries sustained by the victim which caused his death; as well as the locus criminis. The petitioner insists that the behavior of the respondents after the commission of the crime betrayed their guilt, considering that respondent Pacheco left the scene, leaving respondent Andres to bring out Wilsons cadaver, while respondent Andres returned inside the drainage system only when he saw Garcia seated in the grassy area waiting for his friend Wilson to come out. The petitioner contends that there is preponderant evidence on record to show that either or both the respondents caused the death of her son and, as such, are jointly and severally liable therefor. In their comment on the petition, the respondents aver that since the prosecution failed to adduce any evidence to prove that they committed the crime of homicide and caused the death of Wilson, they are not criminally and civilly liable for the latters death. The petition has no merit. Every person criminally liable for a felony is also civilly liable. 17 The civil liability of such person established in Articles 100, 102 and 103 of the Revised Penal Code includes restitution, reparation of the damage caused, and indemnification for consequential damages.18 When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. 19 With the implied institution of the civil action in the criminal action, the two actions are merged into one composite proceeding, with the criminal action predominating the civil.20 The prime purpose of the criminal action is to punish the offender in order to deter him and others from committing the same or similar offense, to isolate him from society, to reform and rehabilitate him or, in general, to maintain social order. 21 The sole purpose of the civil action is the restitution, reparation or indemnification of the private offended party for the damage or injury he sustained by reason of the delictual or felonious act of the accused. 22 While the prosecution must prove the guilt of the accused beyond reasonable doubt for the crime charged, it is required to prove the cause of action of the private complainant against the accused for damages and/or restitution. The extinction of the penal action does not carry with it the extinction of the civil action. However, the civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the civil action that the act or omission from where the civil liability may arise does not exist.23 Moreover, a person committing a felony is criminally liable for all the natural and logical consequences resulting therefrom although the wrongful act done be different from that which he intended. 24 "Natural" refers to an occurrence in the ordinary course of human life or events, while "logical" means that there is a rational connection between the act of the accused and the resulting injury or damage. The felony committed must be the proximate cause of the resulting injury. Proximate cause is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the result would not have occurred. The proximate legal cause is that acting first and producing the injury, either immediately, or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor.25 There must be a relation of "cause and effect," the cause being the felonious act of the offender, the effect being the resultant injuries and/or death of the victim. The "cause and effect" relationship is not altered or changed because of the pre-existing conditions, such as the pathological condition of the victim ( las condiciones patologica del lesionado); the predisposition of the offended party (la predisposicion del ofendido); the physical condition of the offended party ( la constitucion fisica del herido); or the concomitant or concurrent conditions, such as the negligence or fault of the doctors ( la falta de medicos para sister al herido); or the conditions supervening the felonious act such as tetanus, pulmonary infection or gangrene.26 The felony committed is not the proximate cause of the resulting injury when: (a) there is an active force that intervened between the felony committed and the resulting injury, and the active force is a distinct act or fact absolutely foreign from the felonious act of the accused; or (b) the resulting injury is due to the intentional act of the victim.27

If a person inflicts a wound with a deadly weapon in such a manner as to put life in jeopardy and death follows as a consequence of their felonious act, it does not alter its nature or diminish its criminality to prove that other causes cooperated in producing the factual result. The offender is criminally liable for the death of the victim if his delictual act caused, accelerated or contributed to the death of the victim. 28 A different doctrine would tend to give immunity to crime and to take away from human life a salutary and essential safeguard.29 This Court has emphasized that: Amid the conflicting theories of medical men, and the uncertainties attendant upon the treatment of bodily ailments and injuries, it would be easy in many cases of homicide to raise a doubt as to the immediate cause of death, and thereby to open a wide door by which persons guilty of the highest crime might escape conviction and punishment. 30 In People v. Quianzon,31 the Supreme Court held: The Supreme Court of Spain, in a Decision of April 3, 1879, said in a case similar to the present, the following: Inasmuch as a man is responsible for the consequences of his act and in this case, the physical condition and temperament of the offended party nowise lessen the evil, the seriousness whereof is to be judged, not by the violence of the means employed, but by the result actually produced; and as the wound which the appellant inflicted upon the deceased was the cause which determined his death, without his being able to counteract its effects, it is evident that the act in question should be qualified as homicide, etc.32 In the present case, the respondents were charged with homicide by dolo. In People v. Delim,33 the Court delineated the burden of the prosecution to prove the guilt of the accused for homicide or murder: In the case at bar, the prosecution was burdened to prove the corpus delicti which consists of two things: first, the criminal act and second, defendants agency in the commission of the act. Wharton says that corpus delicti includes two things: first, the objective; second, the subjective element of crimes. In homicide (by dolo) and in murder cases, the prosecution is burdened to prove: (a) the death of the party alleged to be dead; (b) that the death was produced by the criminal act of some other than the deceased and was not the result of accident, natural cause or suicide; and (c) that defendant committed the criminal act or was in some way criminally responsible for the act which produced the death. To prove the felony of homicide or murder, there must be incontrovertible evidence, direct or circumstantial, that the victim was deliberately killed (with malice); in other words, that there was intent to kill. Such evidence may consist inter alia in the use of weapons by the malefactors, the nature, location and number of wounds sustained by the victim and the words uttered by the malefactors before, at the time or immediately after the killing of the victim. If the victim dies because of a deliberate act of the malefactor, intent to kill is conclusively presumed.34 Insofar as the civil aspect of the case is concerned, the prosecution or the private complainant is burdened to adduce preponderance of evidence or superior weight of evidence. Although the evidence adduced by the plaintiff is stronger than that presented by the defendant, he is not entitled to a judgment if his evidence is not sufficient to sustain his cause of action. The plaintiff must rely on the strength of his own evidence and not upon the weakness of that of the defendants.35 Section 1, Rule 133 of the Revised Rules of Evidence provides how preponderance of evidence is determined: Section 1. Preponderance of evidence, how determined. In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstance of the case, the witnesses manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability of their testimony, their interest or want of interest, and also their personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.36 In the present case, we rule that, as held by the trial court and the CA, the prosecution failed to adduce preponderant evidence to prove the facts on which the civil liability of the respondents rest, i.e., that the petitioner has a cause of action against the respondents for damages. It bears stressing that the prosecution relied solely on the collective testimonies of Garcia, who was not an eyewitness, and Dr. Aguda. We agree with the petitioner that, as evidenced by the Necropsy Report of Dr. Dominic Aguda, the deceased sustained a 14x7-centimeter hematoma on the scalp. But as to how the deceased sustained the injury, Dr. Aguda was equivocal. He presented two possibilities: (a) that the deceased could have been hit by a blunt object or instrument applied with full force; or (b) the deceased could have slipped, fell hard and his head hit a hard object: COURT: The Court would ask questions.

Q So it is possible that the injury, that is the hematoma, caused on the back of the head might be due to the victims falling on his back and his head hitting a pavement? A Well, the 14x7-centimeter hematoma is quite extensive, so if the fall is strong enough and would fall from a high place and hit a concrete pavement, then it is possible. Q Is it possible that if the victim slipped on a concrete pavement and the head hit the pavement, the injury might be caused by that slipping? A It is also possible. Q So when the victim was submerged under water while unconscious, it is possible that he might have taken in some mud or what? A Yes, Sir. Q So it is your finding that the victim was submerged while still breathing? A Yes, Your Honor, considering that the finding on the lung also would indicate that the victim was still alive when he was placed under water.37 The doctor also admitted that the abrasion on the right side of the victims face could have been caused by rubbing against a concrete wall or pavement: Q The abrasion 4x3 centimeters on the right [side of the] face, would it be caused by the face rubbing against a concrete wall or pavement? A Yes, Sir. Abrasion is usually caused by a contact of a skin to a rough surface. Q Rough surface? A Yes, Your Honor. Q When you say that the trachea region was full of mud, were there no signs that the victim was strangled? A There was no sign of strangulation, Your Honor.38 The trial court gave credence to the testimony of Dr. Aguda that the deceased might have slipped, causing the latter to fall hard and hit his head on the pavement, thus: Q -Could it be possible, Doctor, that this injury might have been caused when the victim fell down and that portion of the body or occipital portion hit a blunt object and might have been inflicted as a result of falling down? A - If the fall if the victim fell and he hit a hard object, well, it is also possible.39 The trial court took into account the following facts: Again, it could be seen from the pictures presented by the prosecution that there were stones inside the culvert. (See Exhibit "D" to "D-3"). The stones could have caused the victim to slip and hit his head on the pavement. Since there was water on the culvert, the portion soaked with water must be very slippery, aside from the fact that the culvert is round. If the victim hit his head and lost consciousness, he will naturally take in some amount of water and drown.40 The CA affirmed on appeal the findings of the trial court, as well as its conclusion based on the said findings. We agree with the trial and appellate courts. The general rule is that the findings of facts of the trial court, its assessment of probative weight of the evidence of the parties, and its conclusion anchored on such findings, affirmed no less by the CA, are given conclusive effect by this Court, unless the trial court ignored, misapplied or misconstrued cogent facts and circumstances which, if considered, would change the outcome of the case. The petitioner failed to show any justification to warrant a reversal of the findings or conclusions of the trial and appellate courts.

That the deceased fell or slipped cannot be totally foreclosed because even Garcia testified that the drainage culvert was dark, and that he himself was so afraid that he refused to join respondents Andres and Pacheco inside. 41 Respondent Andres had no flashlight; only respondent Pacheco had one. Moreover, Dr. Aguda failed to testify and explain what might have caused the abrasion on the left forearm of the deceased. He, likewise, failed to testify whether the abrasions on the face and left forearm of the victim were made ante mortem orpost mortem. The petitioner even failed to adduce preponderance of evidence that either or both the respondents hit the deceased with a blunt object or instrument, and, consequently, any blunt object or instrument that might have been used by any or both of the respondents in hitting the deceased. It is of judicial notice that nowadays persons have killed or committed serious crimes for no reason at all. 42 However, the absence of any ill-motive to kill the deceased is relevant and admissible in evidence to prove that no violence was perpetrated on the person of the deceased. In this case, the petitioner failed to adduce proof of any ill-motive on the part of either respondent to kill the deceased before or after the latter was invited to join them in fishing. Indeed, the petitioner testified that respondent Andres used to go to their house and play with her son before the latters death: Q Do you know this Dante Andres personally? A Not much but he used to go to our house and play with my son after going from her mother who is gambling, Sir. Q But you are acquainted with him, you know his face? A Yes, Sir. Q Will you please look around this courtroom and see if he is around? A (Witness is pointing to Dante Andres, who is inside the courtroom.)43 When the petitioners son died inside the drainage culvert, it was respondent Andres who brought out the deceased. He then informed the petitioner of her sons death. Even after informing the petitioner of the death of her son, respondent Andres followed the petitioner on her way to the grassy area where the deceased was: Q Did not Dante Andres follow you? A He went with me, Sir. Q So when you went to the place where your son was lying, Dante Andres was with you? A No, Sir. When I was informed by Dante Andres that my son was there at the culvert, I ran immediately. He [was] just left behind and he just followed, Sir. Q So when you reached the place where your son was lying down, Dante Andres also came or arrived? A It was only when we boarded the jeep that he arrived, Sir.44 In sum, the petitioner failed to adduce preponderance of evidence to prove a cause of action for damages based on the deliberate acts alleged in the Information. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. No costs. SO ORDERED. G.R. No. 42607 September 28, 1935 THE PHILIPPINE ISLANDS, plaintiff-appellee,

THE PEOPLE OF vs. JUAN QUIANZON, defendant-appellant.

Pedro B. Office of the Solicitor-General Hilado for appellee. RECTO, J.:

Pobre

for

appellant.

Charged with and convicted of the crime of homicide in the Court of First Instance of Ilocos Norte, and sentenced to an indeterminate penalty of from six years and one day of prision mayor, as minimum to fourteen years, seven months and one day of reclusion temporal, as maximum, Juan Quianzon appeal to this court for the review of the case. On February 1, 1934, a novena for the suffrage of the soul of the deceased person was being held in the house of Victoria Cacpal in a barrio, near the poblacion, of the municipality of Paoay, Ilocos Norte, with the usual attendance of the relatives and friends. The incident that led to the filling of these charges took place between 3 to 4 o'clock in the afternoon. Andres Aribuabo, one of the persons present, went to ask for food of Juan Quianzon, then in the kitchen, who, to all appearances, had the victuals in his care. It was the second or third time that Aribuabo approached Quianzon with the same purpose whereupon the latter, greatly peeved, took hold of a firebrand and applied ran to the place where the people were gathered exclaiming that he is wounded and was dying. Raising his shirt, he showed to those present a wound in his abdomen below the navel. Aribuabo died as a result of this wound on the tenth day after the incident. There is no conflict between the prosecution and the defense as regards the foregoing facts. The question to be determined is who wounded Aribuabo. The prosecution claims that it was Juan Quianzon and, to prove it, called Simeon Cacpal, Roman Bagabay, Gregorio Dumlao and Julian Llaguno to the witness stand. The first witness, Simeon Cacpal, claims to have witnessed the wounding of Andres Aribuabo in the abdomen by Juan Quianzon. However, we find the testimony of this witness so improbable, incongruent and contradictory that we consider meritorious the claim of the defense that it was an error of the lower court to have taken it into consideration in formulating the findings of its judgment. Not so with respect to the testimony of the other witnesses. Roman Bagabay, one of the persons present at said gathering, testified that he saw Juan Quianzon apply a firebrand to the neck of Andres Aribuabo who shortly afterwards went toward the place where the witness and the other guests were gathered, telling that he was wounded and was going to die and naming Juan Quianzon as the person who wounded him. He also testified that Juan Quianzon, upon being asked immediately by him about the incident, admitted to him attacked Aribuabo with a bamboo spit. Gregorio Dumalao, a barrio lieutenant, who, upon being informed of the incident, forthwith conducted an investigation, questioned Aribuabo and the latter told him that it was the accused who had wounded him. He likewise questioned the accused and the latter, in turn, stated that he had wounded the deceased with a bamboo spit. Upon being brought before Juan Llaguno, chief of police of Paoay, for questioning, Quianzon confessed to Llaguno that he had applied a firebrand to Aribuabo's neck and had later wounded him with a bamboo spit. Before the chief of police could put this confession of Quianzon in writing, the later retracted, denying that he had wounded Aribuabo, for which reason in the affidavit Exhibit B the fact of having applied a firebrand to Aribuabo's neck appears admitted by Quianzon but not of having wounded the deceased with a bamboo spit. The disinterestedness of these three witnesses for the prosecution, Bagabay, Dumalo and Llaguno, is not questioned by the defense. Neither the accused, in his testimony, nor his counsel, in the brief filed by him in this court, was able to assign any unlawful, corrupt or wicked motive that might have actuated them to testify falsely in this case and knowingly bring about the imprisonment of an innocent person. Bagabay is not even a relative of the deceased. Dumlao, the barrio lieutenant, is a nephew of the accused. Llaguno, chief of police of Paoay, is an officer of the law whose intervention of this case was purely in compliance with his official duties. All the appellant has been able to state in his brief to question the credibility of these witnesses is that they were contradicted by Simeon Cacpal, the other witness for the prosecution, who testified that he had not seen them speak neither to Aribuabo nor to Quianzon in the afternoon of the crime. But the position of the defense in invoking Simeon Cacpal's testimony for the purpose of discrediting the other witnesses for the prosecution is untenable, after having vigorously impeached said testimony, branding it as improbable, incongruent and contradictory. If Cacpal is a false witness and the court believes this claim of the defense as true , none of his statements may be taken into account or should exert any influence in the consideration of the other evidence in the case. After discharging testimony of Simeon Cacpal, the evidence presented by the prosecution relative to the appellant's criminal liability for the death of Andres Aribuabo, briefly consists, first, in the victim's statement immediately after receiving the wound, naming the accused as the author of the aggression, and the admission forthwith made by the accused that he had applied a firebrand to Aribuabo's neck and had wounded him, besides, with a bamboo spit. Both statements are competent evidence in the law, admissible as a part of the res gestae (section 279 and 298, No. 7, of the Code of Civil Procedure; U.S. vs. Macuti, 26 Phil., 170; People vs. Portento and Portento, 48 Phil., 971). Second, in the extrajudicial confession of the accused to the barrio lieutenant, Dumlao, and later to the chief of police Llaguno, in the same afternoon of the crime, that he was the author of Aribuabo's wound and that he had inflicted it by means of a bamboo spit. Inasmuch as this confession, although extrajudicial, is strongly corroborated and appears to have been made by the accused freely and voluntarily, it constitutes evidence against him relative to his liability as author of the crime charged (U.S. vs. so Fo, 23 Phil., 379; People vs. Cabrera, 43 Phil., 64, 82; U.S. vs. Jamino, 3 P.R.A., 52; Francisco's Quizzer on Evidence). The defense of the accused consisted simply in denying that he had wounded the deceased and that he had confessed his guilt to the witnesses Bagabay, Dumlao and Llaguno. But such denial cannot prevail against the adverse testimony of these three veracious and disinterested witnesses, all the more because neither the accused nor any other witness for the defense

has stated or insinuated that another person, not the accused, might be the author of the wound which resulted in Aribuabo's death, and because it is admitted by the defense that it was the accused, whom Aribuabo had been pestering with request for food, who attacked the latter, burning his neck with a firebrand, afetr which Aribuaboappeared wounded in the abdomen, without the accused and the witnesses for the defense explaining how and by whom the aggression had been made. It is contended by the defense that even granting that it was the accused who inflicted the wound which resulted in Aribuabo's death, he should not be convicted of homicide but only of serious physical injuries because said wound was not necessarily fatal and the deceased would have survived it had he not twice removed the drainage which Dr. Mendoza had placed to control or isolate the infection. This contention is without merit. According to the physician who examined whether he could survive or not." It was a wound in the abdomen which occasionally results in traumatic peritonitis. The infection was cause by the fecal matter from the large intestine which has been perforated. The possibility, admitted by said physician that the patient might have survived said wound had he not removed the drainage, does not mean that the act of the patient was the real cause of his death. Even without said act the fatal consequence could have followed, and the fact that the patient had so acted in a paroxysm of pain does not alter the juridical consequences of the punishable act of the accused. One who inflicts an injury on another is deemed by the law to be guilty of homicide if the injury contributes mediately or immediately to the death of such other. The fact that the other causes contribute to the death does not relieve the actor of responsibility. . . . (13 R. C.L., 748.) Furthermore, it does not appear that the patient, in removing the drainage, had acted voluntarily and with the knowledge that he was performing an act prejudicial to his health, inasmuch as self-preservation is the strongest instinct in living beings. It much be assumed, therefore, that he unconsciously did so due to his pathological condition and to his state of nervousness and restlessness on account of the horrible physical pain caused by the wound, aggravated by the contract of the drainage tube with the inflammed peritoneum. "When the peritonitis is due to traumatism, or to a perforation of the stomach, intestine or gall-bladder, etc., it is indicated by violent shivering and pain first localized at a point in the abdomen, extending later to the entire abdominal wall; acute intolerable pain, which is aggravated by the slightest movement, becoming unbearable upon contact with the hand, a rag, or the bedclothes. The pain is continuous but it gives frequent paroxysms. The abdomen is swollen, tense. Vomittings of the greenish matter, which are very annoying and terribly painful, take from the beginning and continue while the disease lasts." (XVI Spanish-America Encyclopaedic Dictionary, 176; see also XXI Encyclopaedia Britannica, 1911 ed., 171.) If to this is added the fact that the victim in this case was mentally deranged, according to the defense itself, it becomes more evident that the accused is wrong in imputing the natural consequences of his criminal act to an act of his victim. The question herein raised by the appellant has already been finally settled by jurisprudence. The Supreme Court of Spain, in a decision of April 3, 1879, said in the case similar to the present, the following: "Inasmuch as a man is responsible for the consequences of his act and in this case the physical condition and temperament of the offended party nowise lessen the evil, the seriousness whereof is to be judged, not by the violence of the means employed, but by the result actually produced; and as the wound which the appellant inflicted upon the deceased was the cause which determined his death, without his being able to counteract its effects, it is evident that the act in question should be qualified as homicide, etc." In the case of People vs. Almonte (56 Phil., 54), the abdominal wound was less serious than that received by Aribuabo in this case, as it was not penetrating, merely involving the muscular tissue. In said case the death of the victim was due to a secondary hemorrhage produced twenty-four hours after the wound had been inflicted, because of the "bodily movements of the patient, who was in a state of nervousness, sitting up in bed, getting up and pacing about the room, as as a consequence of which he internal vessels, already congested because of the wound, bled, and the hemorrhage thus produced caused his death." The court in deciding the question stated that "when a person dies in consequence of an internal hemorrhage brought on by moving about against the doctor's orders, not because of carelessness or a desire to increase the criminal liability of his assailant, but because of his nervous condition due to the wound inflicted by said assailant, the crime is homicide and not merely slight physical injuries, simply because the doctor was of the opinion that the wound might have healed in seven days." The grounds for this rule of jurisprudence are correctly set forth in 13 R.C.L., 751, as follows: While the courts may have vacilated from time to time it may be taken to be settled rule of the common law that on who inflicts an injury on another will be held responsible for his death, although it may appear that the deceased might have recovered if he had taken proper care of himself, or submitted to a surgical operation, or that unskilled or improper treatment aggravated the wound and contributed to the death, or that death was immediately caused by a surgical operation rendered necessary by the condition of the wound. The principle on which this rule is founded is one of universal application, and lies at the foundation of the criminal jurisprudence. It is, that every person is to be held to contemplate and to be responsible for the natural consequences of his own acts. If a person inflicts a wound with a deadly weapon in such a manner as to put life in jeopardy, and death follows as a consequence of this felonious and wicked act, it does not alter its nature or diminish its criminality to prove that other causes co-operated in producing the fatal result. Indeed, it may be said that neglect of the wound or its unskillful and improper treatment, which are of themselves consequences of the criminal act, which might naturally follow in any case, must in law be deemed to have been among those which were in contemplation of the guilty party, and for which he is to be held responsible. But, however, this may be, the rule surely seems to have its foundation in a wise and practical policy. A different doctrine would tend to give immunity to crime and to take away from human life a salutary and essential safeguard. Amid the conflicting theories of the medical men, and the uncertainties attendant upon the treatment of bodily

ailments and injuries, it would be easy in many cases of homicide to raise a doubt as to the immediate cause of death, and thereby to open a wide door by which persons guilty of the highest crime might escape conviction and punishment. Assuming that we should disregard Simeon Cacpal's testimony, there is no evidence of record that the crime charged was committed by means of the knife, Exhibit A, and we only have the extrajudicial admission of the accused that he had committed it by means of a bamboo spit with which the wound of the deceased might have been caused because, according to the physician who testified in this case, it was produced by a "sharp and penetrating" instrument. Inasmuch as the mitigating circumstances of lack of instruction and of intention to commit so grave a wrong as the committed should be taken into consideration in favor of the appellant, without any aggravating circumstances adverse to him, we modify the appealed judgment by sentencing him to an indeterminate penalty with a minimum of four years of prision correccional and a maximum of a eight years of prision mayor, affirming it in all other respect, with cost to said appellant. G.R. No. 72964 January 7, 1988 FILOMENO vs. HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE PHILIPPINES, respondents. URBANO, petitioner,

GUTIERREZ, JR., J.: This is a petition to review the decision of the then Intermediate Appellate Court which affirmed the decision of the then Circuit Criminal Court of Dagupan City finding petitioner Filomeno Urban guilty beyond reasonable doubt of the crime of homicide. The records disclose the following facts of the case. At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to his ricefield at Barangay Anonang, San Fabian, Pangasinan located at about 100 meters from the tobacco seedbed of Marcelo Javier. He found the place where he stored his palay flooded with water coming from the irrigation canal nearby which had overflowed. Urbano went to the elevated portion of the canal to see what happened and there he saw Marcelo Javier and Emilio Erfe cutting grass. He asked them who was responsible for the opening of the irrigation canal and Javier admitted that he was the one. Urbano then got angry and demanded that Javier pay for his soaked palay. A quarrel between them ensued. Urbano unsheathed his bolo (about 2 feet long, including the handle, by 2 inches wide) and hacked Javier hitting him on the right palm of his hand, which was used in parrying the bolo hack. Javier who was then unarmed ran away from Urbano but was overtaken by Urbano who hacked him again hitting Javier on the left leg with the back portion of said bolo, causing a swelling on said leg. When Urbano tried to hack and inflict further injury, his daughter embraced and prevented him from hacking Javier. Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about 50 meters away from where the incident happened. Emilio then went to the house of Barangay Captain Menardo Soliven but not finding him there, Emilio looked for barrio councilman Felipe Solis instead. Upon the advice of Solis, the Erfes together with Javier went to the police station of San Fabian to report the incident. As suggested by Corporal Torio, Javier was brought to a physician. The group went to Dr. Guillermo Padilla, rural health physician of San Fabian, who did not attend to Javier but instead suggested that they go to Dr. Mario Meneses because Padilla had no available medicine. After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo Padilla who conducted a medicolegal examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C" dated September 28, 1981) which reads: TO WHOM IT MAY CONCERN: This is to certify that I have examined the wound of Marcelo Javier, 20 years of age, married, residing at Barangay Anonang, San Fabian, Pangasinan on October 23, 1980 and found the following: 1 -Incised wound 2 inches in length at the upper portion of the lesser palmar prominence, right. As to my observation the incapacitation is from (7-9) days period. This wound was presented to me only for medico-legal examination, as it was already treated by the other doctor. (p. 88, Original Records) Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences. Urbano promised to pay P700.00 for the medical expenses of Javier. Hence, on October 27, 1980, the two accompanied by Solis appeared before the San Fabian Police to formalize their amicable settlement. Patrolman Torio recorded the event in the police blotter (Exhibit A), to wit:

xxx xxx xxx Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties appeared before this Station accompanied by brgy. councilman Felipe Solis and settled their case amicably, for they are neighbors and close relatives to each other. Marcelo Javier accepted and granted forgiveness to Filomeno Urbano who shoulder (sic) all the expenses in his medical treatment, and promising to him and to this Office that this will never be repeated anymore and not to harbour any grudge against each other. (p. 87, Original Records.) Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional P300.00 was given to Javier at Urbano's house in the presence of barangay captain Soliven. At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a very serious condition. When admitted to the hospital, Javier had lockjaw and was having convulsions. Dr. Edmundo Exconde who personally attended to Javier found that the latter's serious condition was caused by tetanus toxin. He noticed the presence of a healing wound in Javier's palm which could have been infected by tetanus. On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr. Exconde are as follows: Date Diagnosis 11-14-80 ADMITTED due to trismus adm. at DX TETANUS 1:30 AM Still having frequent muscle spasm. With diffi#35, 421 culty opening his mouth. Restless at times. Febrile 11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessation of respiration and HR after muscular spasm. 02 inhalation administered. Ambo bag resuscitation and cardiac massage done but to no avail. Pronounced dead by Dra. Cabugao at 4:18 P.M. PMC done and cadaver brought home by relatives. (p. 100, Original Records) In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide before the then Circuit Criminal Court of Dagupan City, Third Judicial District. Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as charged. He was sentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS of prision mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as maximum, together with the accessories of the law, to indemnify the heirs of the victim, Marcelo Javier, in the amount of P12,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. He was ordered confined at the New Bilibid Prison, in Muntinlupa, Rizal upon finality of the decision, in view of the nature of his penalty. The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the award of indemnity to the heirs of the deceased to P30,000.00 with costs against the appellant. The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was based on an affidavit of Barangay Captain Menardo Soliven (Annex "A") which states: That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan, and up to the present having been reelected to such position in the last barangay elections on May 17, 1982;

That sometime in the first week of November, 1980, there was a typhoon that swept Pangasinan and other places of Central Luzon including San Fabian, a town of said province; That during the typhoon, the sluice or control gates of the Bued irrigation dam which irrigates the ricefields of San Fabian were closed and/or controlled so much so that water and its flow to the canals and ditches were regulated and reduced; That due to the locking of the sluice or control gates of the dam leading to the canals and ditches which will bring water to the ricefields, the water in said canals and ditches became shallow which was suitable for catching mudfishes; That after the storm, I conducted a personal survey in the area affected, with my secretary Perfecto Jaravata; That on November 5, 1980, while I was conducting survey, I saw the late Marcelo Javier catching fish in the shallow irrigation canals with some companions; That few days there after,or on November l5, l980, I came to know that said Marcelo Javier died of tetanus. (p. 33, Rollo) The motion was denied. Hence, this petition. In a resolution dated July 16, 1986, we gave due course to the petition. The case involves the application of Article 4 of the Revised Penal Code which provides that "Criminal liability shall be incurred: (1) By any person committing a felony (delito) although the wrongful act done be different from that which he intended ..." Pursuant to this provision "an accused is criminally responsible for acts committed by him in violation of law and for all the natural and logical consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631). The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of which Javier suffered a 2inch incised wound on his right palm; that on November 14, 1981 which was the 22nd day after the incident, Javier was rushed to the hospital in a very serious condition and that on the following day, November 15, 1981, he died from tetanus. Under these circumstances, the lower courts ruled that Javier's death was the natural and logical consequence of Urbano's unlawful act. Hence, he was declared responsible for Javier's death. Thus, the appellate court said: The claim of appellant that there was an efficient cause which supervened from the time the deceased was wounded to the time of his death, which covers a period of 23 days does not deserve serious consideration. True, that the deceased did not die right away from his wound, but the cause of his death was due to said wound which was inflicted by the appellant. Said wound which was in the process of healing got infected with tetanus which ultimately caused his death. Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim suffered lockjaw because of the infection of the wound with tetanus. And there is no other way by which he could be infected with tetanus except through the wound in his palm (tsn., p. 78, Oct. 5, 1981). Consequently, the proximate cause of the victim's death was the wound which got infected with tetanus. And the settled rule in this jurisdiction is that an accused is liable for all the consequences of his unlawful act. (Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; People v. Cornel 78 Phil. 418). Appellant's allegation that the proximate cause of the victim's death was due to his own negligence in going back to work without his wound being properly healed, and lately, that he went to catch fish in dirty irrigation canals in the first week of November, 1980, is an afterthought, and a desperate attempt by appellant to wiggle out of the predicament he found himself in. If the wound had not yet healed, it is impossible to conceive that the deceased would be reckless enough to work with a disabled hand. (pp. 20-21, Rollo) The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due to his own negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got infected with tetanus when after two weeks he returned to his farm and tended his tobacco plants with his bare hands exposing the wound to harmful elements like tetanus germs. The evidence on record does not clearly show that the wound inflicted by Urbano was infected with tetanus at the time of the infliction of the wound. The evidence merely confirms that the wound, which was already healing at the time Javier suffered the symptoms of the fatal ailment, somehow got infected with tetanus However, as to when the wound was infected is not clear from the record. In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of proximate cause: xxx xxx xxx

... A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American Jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows: ... "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred."And more comprehensively, "the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom." (at pp. 185-186) The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time Javier was wounded until his death which would exculpate Urbano from any liability for Javier's death. We look into the nature of tetanusThe incubation period of tetanus, i.e., the time between injury and the appearance of unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of patients become symptomatic within 14 days. A short incubation period indicates severe disease, and when symptoms occur within 2 or 3 days of injury the mortality rate approaches 100 percent. Non-specific premonitory symptoms such as restlessness, irritability, and headache are encountered occasionally, but the commonest presenting complaints are pain and stiffness in the jaw, abdomen, or back and difficulty swallowing. As the progresses, stiffness gives way to rigidity, and patients often complain of difficulty opening their mouths. In fact, trismus in the commonest manifestation of tetanus and is responsible for the familiar descriptive name of lockjaw. As more muscles are involved, rigidity becomes generalized, and sustained contractions called risus sardonicus. The intensity and sequence of muscle involvement is quite variable. In a small proportion of patients, only local signs and symptoms develop in the region of the injury. In the vast majority, however, most muscles are involved to some degree, and the signs and symptoms encountered depend upon the major muscle groups affected. Reflex spasm usually occur within 24 to 72 hours of the first symptom, an interval referred to as the onset time . As in the case of the incubation period, a short onset time is associated with a poor prognosis. Spasms are caused by sudden intensification of afferent stimuli arising in the periphery, which increases rigidity and causes simultaneous and excessive contraction of muscles and their antagonists. Spasms may be both painful and dangerous. As the disease progresses, minimal or inapparent stimuli produce more intense and longer lasting spasms with increasing frequency. Respiration may be impaired by laryngospasm or tonic contraction of respiratory muscles which prevent adequate ventilation. Hypoxia may then lead to irreversible central nervous system damage and death. Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of more than 6 days. Trismus is usually present, but dysphagia is absent and generalized spasms are brief and mild. Moderately severe tetanus has a somewhat shorter incubation period and onset time; trismus is marked, dysphagia and generalized rigidity are present, but ventilation remains adequate even during spasms. The criteria for severe tetanus include a short incubation time, and an onset time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent prolonged, generalized convulsive spasms. (Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005; Emphasis supplied) Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the incubation period of the disease. In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo which Urbano used in hacking him. This incident took place on October 23, 1980. After 22 days, or on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle spasms. The following day, November 15, 1980, he died. If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at the time, it is more medically probable that Javier should have been infected with only a mild cause of tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking incident or more than 14 days after the infliction of the wound. Therefore, the onset time should have been more than six days . Javier, however, died on the second day from the onset time. The more credible conclusion is that at the time Javier's wound was inflicted by the appellant, the severe form of tetanus that killed him was not yet present. Consequently, Javier's wound could have been infected with tetanus after the hacking incident. Considering the circumstance surrounding Javier's death, his wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died. The rule is that the death of the victim must be the direct, natural, and logical consequence of the wounds inflicted upon him by the accused. (People v. Cardenas, supra) And since we are dealing with a criminal conviction, the proof that the accused caused the victim's death must convince a rational mind beyond reasonable doubt. The medical findings, however, lead us to a distinct possibility that the infection of the wound by tetanus was an efficient intervening cause later or between the time

Javier was wounded to the time of his death. The infection was, therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil. 1038). Doubts are present. There is a likelihood that the wound was but the remote cause and its subsequent infection, for failure to take necessary precautions, with tetanus may have been the proximate cause of Javier's death with which the petitioner had nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118). "A prior and remote cause cannot be made the be of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause. And if an independent negligent act or defective condition sets into operation the instances which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause." (45 C.J. pp. 931-932). (at p. 125) It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very least, the records show he is guilty of inflicting slight physical injuries. However, the petitioner's criminal liability in this respect was wiped out by the victim's own act. After the hacking incident, Urbano and Javier used the facilities of barangay mediators to effect a compromise agreement where Javier forgave Urbano while Urbano defrayed the medical expenses of Javier. This settlement of minor offenses is allowed under the express provisions of Presidential Decree G.R. No. 1508, Section 2(3). (See also People v. Caruncho, 127 SCRA 16). We must stress, however, that our discussion of proximate cause and remote cause is limited to the criminal aspects of this rather unusual case. It does not necessarily follow that the petitioner is also free of civil liability. The well-settled doctrine is that a person, while not criminally liable, may still be civilly liable. Thus, in the recent case of People v. Rogelio Ligon y Tria, et al . (G.R. No. 74041, July 29, 1987), we said: xxx xxx xxx ... While the guilt of the accused in a criminal prosecution must be established beyond reasonable doubt, only a preponderance of evidence is required in a civil action for damages. (Article 29, Civil Code). The judgment of acquittal extinguishes the civil liability of the accused only when it includes a declaration that the facts from which the civil liability might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA 559). The reason for the provisions of article 29 of the Civil Code, which provides that the acquittal of the accused on the ground that his guilt has not been proved beyond reasonable doubt does not necessarily exempt him from civil liability for the same act or omission, has been explained by the Code Commission as follows: The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is one of the most serious flaws in the Philippine legal system. It has given use to numberless instances of miscarriage of justice, where the acquittal was due to a reasonable doubt in the mind of the court as to the guilt of the accused. The reasoning followed is that inasmuch as the civil responsibility is derived from the criminal offense, when the latter is not proved, civil liability cannot be demanded. This is one of those causes where confused thinking leads to unfortunate and deplorable consequences. Such reasoning fails to draw a clear line of demarcation between criminal liability and civil responsibility, and to determine the logical result of the distinction. The two liabilities are separate and distinct from each other. One affects the social order and the other, private rights. One is for the punishment or correction of the offender while the other is for reparation of damages suffered by the aggrieved party. The two responsibilities are so different from each other that article 1813 of the present (Spanish) Civil Code reads thus: "There may be a compromise upon the civil action arising from a crime; but the public action for the imposition of the legal penalty shall not thereby be extinguished." It is just and proper that, for the purposes of the imprisonment of or fine upon the accused, the offense should be proved beyond reasonable doubt. But for the purpose of indemnity the complaining party, why should the offense also be proved beyond reasonable doubt? Is not the invasion or violation of every private right to be proved only by a preponderance of evidence? Is the right of the aggrieved person any less private because the wrongful act is also punishable by the criminal law? "For these reasons, the Commission recommends the adoption of the reform under discussion. It will correct a serious defect in our law. It will close up an inexhaustible source of injustice-a cause for disillusionment on the part of the innumerable persons injured or wronged." The respondent court increased the P12,000.00 indemnification imposed by the trial court to P30,000.00. However, since the indemnification was based solely on the finding of guilt beyond reasonable doubt in the homicide case, the civil liability of the petitioner was not thoroughly examined. This aspect of the case calls for fuller development if the heirs of the victim are so minded.

WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then Intermediate Appellate Court, now Court of Appeals, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of homicide. Costs de oficio. SO ORDERED. Impossible Crimes G.R. No. 103119 October 21, 1992 SULPICIO vs. HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. INTOD, petitioner,

CAMPOS, JR., J.: Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of Appeals 1 affirming in toto the judgment of the Regional Trial Court, Branch XIV, Oroquieta City, finding him guilty of the crime of attempted murder. From the records, we gathered the following facts. In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig went to Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go with them to the house of Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a meeting with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to be killed because of a land dispute between them and that Mandaya should accompany the four (4) men, otherwise, he would also be killed. At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the instance of his companions, Mandaya pointed the location of Palangpangan's bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said room. It turned out, however, that Palangpangan was in another City and her home was then occupied by her sonin-law and his family. No one was in the room when the accused fired the shots. No one was hit by the gun fire. Petitioner and his companions were positively identified by witnesses. One witness testified that before the five men left the premises, they shouted: "We will kill you (the witness) and especially Bernardina Palangpangan and we will come back if ( sic) you were not injured". 2 After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as affirmed by the Court of Appeals, holding that Petitioner was guilty of attempted murder. Petitioner seeks from this Court a modification of the judgment by holding him liable only for an impossible crime, citing Article 4(2) of the Revised Penal Code which provides: Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal Responsibility shall be incurred: xxx xxx xxx 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. Petitioner contends that, Palangpangan's absence from her room on the night he and his companions riddled it with bullets made the crime inherently impossible. On the other hand, Respondent People of the Philippines argues that the crime was not impossible. Instead, the facts were sufficient to constitute an attempt and to convict Intod for attempted murder. Respondent alleged that there was intent. Further, in its Comment to the Petition, respondent pointed out that: . . . The crime of murder was not consummated, not because of the inherent impossibility of its accomplishment (Art. 4(2), Revised Penal Code), but due to a cause or accident other than petitioner's and his accused's own spontaneous desistance (Art. 3., Ibid.) Palangpangan did not sleep at her house at that time. Had it not been for this fact, the crime is possible, not impossible. 3

Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the Old Penal Code where: . . . it was necessary that the execution of the act has been commenced, that the person conceiving the idea should have set about doing the deed, employing appropriate means in order that his intent might become a reality, and finally, that the result or end contemplated shall have been physically possible. So long as these conditions were not present, the law and the courts did not hold him criminally liable. 5 This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the Positivist School, recognizes in the offender his formidability, 7 and now penalizes an act which were it not aimed at something quite impossible or carried out with means which prove inadequate, would constitute a felony against person or against property. 8 The rationale of Article 4(2) is to punish such criminal tendencies. 9 Under this article, the act performed by the offender cannot produce an offense against person or property because: (1) the commission of the offense is inherently impossible of accomplishment: or (2) the means employed is either (a) inadequate or (b) ineffectual. 10 That the offense cannot be produced because the commission of the offense is inherently impossible of accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the offender must be by its nature one impossible of accomplishment. 11 There must be either impossibility of accomplishing the intended act 12 in order to qualify the act an impossible crime. Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. 13 Thus: Legal impossibility would apply to those circumstances where (1) the motive, desire and expectation is to perform an act in violation of the law; (2) there is intention to perform the physical act; (3) there is a performance of the intended physical act; and (4) the consequence resulting from the intended act does not amount to a crime. 14 The impossibility of killing a person already dead 15 falls in this category. On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime. 16 One example is the man who puts his hand in the coat pocket of another with the intention to steal the latter's wallet and finds the pocket empty. 17 The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would be, although in reality, the victim was not present in said place and thus, the petitioner failed to accomplish his end. One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused, with intent to kill, aimed and fired at the spot where he thought the police officer would be. It turned out, however, that the latter was in a different place. The accused failed to hit him and to achieve his intent. The Court convicted the accused of an attempt to kill. It held that: The fact that the officer was not at the spot where the attacking party imagined where he was, and where the bullet pierced the roof, renders it no less an attempt to kill. It is well settled principle of criminal law in this country that where the criminal result of an attempt is not accomplished simply because of an obstruction in the way of the thing to be operated upon, and these facts are unknown to the aggressor at the time, the criminal attempt is committed. In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim because the latter did not pass by the place where he was lying-in wait, the court held him liable for attempted murder. The court explained that: It was no fault of Strokes that the crime was not committed. . . . It only became impossible by reason of the extraneous circumstance that Lane did not go that way; and further, that he was arrested and prevented from committing the murder. This rule of the law has application only where it is inherently impossible to commit the crime. It has no application to a case where it becomes impossible for the crime to be committed, either by outside interference or because of miscalculation as to a supposed opportunity to commit the crime which fails to materialize; in short it has no application to the case when the impossibility grows out of extraneous acts not within the control of the party. In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was nothing to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit: It being an accepted truth that defendant deserves punishment by reason of his criminal intent, no one can seriously doubt that the protection of the public requires the punishment to be administered, equally whether in the unseen depths of the pocket, etc., what was supposed to exist was really present or not. The community suffers from the mere alarm of crime. Again: Where the thing intended (attempted) as a crime and what is done is a sort to create alarm, in other words, excite

apprehension that the evil; intention will be carried out, the incipient act which the law of attempt takes cognizance of is in reason committed. In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that the latter was inside. However, at that moment, the victim was in another part of the house. The court convicted the accused of attempted murder. The aforecited cases are the same cases which have been relied upon by Respondent to make this Court sustain the judgment of attempted murder against Petitioner. However, we cannot rely upon these decisions to resolve the issue at hand. There is a difference between the Philippine and the American laws regarding the concept and appreciation of impossible crimes. In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and made the punishable. Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent regarding this matter. What it provided for were attempts of the crimes enumerated in the said Code. Furthermore, in said jurisdiction, the impossibility of committing the offense is merely a defense to an attempt charge. In this regard, commentators and the cases generally divide the impossibility defense into two categories: legal versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court held that: . . . factual impossibility of the commission of the crime is not a defense. If the crime could have been committed had the circumstances been as the defendant believed them to be, it is no defense that in reality the crime was impossible of commission. Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an attempt. In U.S. vs. Berrigan, 24 the accused was indicated for attempting to smuggle letters into and out of prison. The law governing the matter made the act criminal if done without knowledge and consent of the warden. In this case, the offender intended to send a letter without the latter's knowledge and consent and the act was performed. However, unknown to him, the transmittal was achieved with the warden's knowledge and consent. The lower court held the accused liable for attempt but the appellate court reversed. It held unacceptable the contention of the state that "elimination of impossibility as a defense to a charge of criminal attempt, as suggested by the Model Penal Code and the proposed federal legislation, is consistent with the overwhelming modern view". In disposing of this contention, the Court held that the federal statutes did not contain such provision, and thus, following the principle of legality, no person could be criminally liable for an act which was not made criminal by law. Further, it said: Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the offense of attempt irrespective of legal impossibility until such time as such legislative changes in the law take place, this court will not fashion a new non-statutory law of criminal attempt. To restate, in the United States, where the offense sought to be committed is factually impossible or accomplishment, the offender cannot escape criminal liability. He can be convicted of an attempt to commit the substantive crime where the elements of attempt are satisfied. It appears, therefore, that the act is penalized, not as an impossible crime, but as an attempt to commit a crime. On the other hand, where the offense is legally impossible of accomplishment, the actor cannot be held liable for any crime neither for an attempt not for an impossible crime. The only reason for this is that in American law, there is no such thing as an impossible crime. Instead, it only recognizes impossibility as a defense to a crime charge that is, attempt. This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of accomplishing the criminal intent is not merely a defense, but an act penalized by itself. Furthermore, the phrase "inherent impossibility" that is found in Article 4(2) of the Revised Penal Code makes no distinction between factual or physical impossibility and legal impossibility. Ubi lex non distinguit nec nos distinguere debemos. The factual situation in the case at bar present a physical impossibility which rendered the intended crime impossible of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to make the act an impossible crime. To uphold the contention of respondent that the offense was Attempted Murder because the absence of Palangpangan was a supervening cause independent of the actor's will, will render useless the provision in Article 4, which makes a person criminally liable for an act "which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment . . ." In that case all circumstances which prevented the consummation of the offense will be treated as an accident independent of the actor's will which is an element of attempted and frustrated felonies. WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent Court of Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of an impossible crime as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Having in mind the social danger and degree of criminality shown by Petitioner, this Court sentences him to suffer the penalty of six (6) months of arresto mayor, together with the accessory penalties provided by the law, and to pay the costs.

SO ORDERED. G.R. No. 95322 March 1, 1993 PEOPLE OF THE vs. PABLITO DOMASIAN AND DR. SAMSON TAN, accused-appellant. The Solicitor General for plaintiff-appellee. Silvestre L. Tagarao for appellant Pablito Domasian. Lino M. Patajo for appellant Dr. Samson Tan. CRUZ, J.: The boy was detained for only about three hours and was released even before his parents received the ransom note. But it spawned a protracted trial spanning all of 8 years and led to the conviction of the two accused. 1 The victim was Enrico Paulo Agra, who was 8 years old at the time of the incident in question. The accused were Pablito Domasian and Samson Tan, the latter then a resident physician in the hospital owned by Enrico's parents. They were represented by separate lawyers at the trial and filed separate briefs in this appeal. The evidence of the prosecution showed that in the morning of March 11, 1982, while Enrico was walking with a classmate along Roque street in the poblacion of Lopez, Quezon, he was approached by a man who requested his assistance in getting his father's signature on a medical certificate. Enrico agreed to help and rode with the man in a tricycle to Calantipayan, where he waited outside while the man went into a building to get the certificate. Enrico became apprehensive and started to cry when, instead of taking him to the hospital, the man flagged a minibus and forced him inside, holding him firmly all the while. The man told him to stop crying or he would not be returned to his father. When they alighted at Gumaca, they took another tricycle, this time bound for the municipal building from where they walked to the market. Here the man talked to a jeepney driver and handed him an envelope addressed to Dr. Enrique Agra, the boy's father. The two then boarded a tricycle headed for San Vicente, with the man still firmly holding Enrico, who continued crying. This aroused the suspicion of the driver, Alexander Grate, who asked the man about his relationship with the boy. The man said he and the boy were brothers, making Grate doubly suspicious because of the physical differences between the two and the wide gap between their ages. Grate immediately reported the matter to two barangay tanods when his passengers alighted from the tricycle. Grate and the tanods went after the two and saw the man dragging the boy. Noticing that they were being pursued, the man told Enrico to run fast as their pursuers might behead them. Somehow, the man managed to escape, leaving Enrico behind. Enrico was on his way home in a passenger jeep when he met his parents, who were riding in the hospital ambulance and already looking for him. 2 At about 1:45 in the afternoon of the same day, after Enrico's return, Agra received an envelope containing a ransom note. The note demanded P1 million for the release of Enrico and warned that otherwise the boy would be killed. Agra thought the handwriting in the note was familiar. After comparing it with some records in the hospital, he gave the note to the police, which referred it to the NBI for examination. 3 The test showed that it bad been written by Dr. Samson Tan. 4 On the other hand, Enrico was shown a folder of pictures in the police station so be could identify the man who had detained him, and he pointed to the picture of Pablito Domasian. 5 Domasian and Tan were subsequently charged with the crime of kidnapping with serious illegal detention in the Regional Trial Court of Quezon. 6 The defense of both accused was denial and alibi. Domasian claimed that at the time of the incident he was watching a mahjong game in a friend's house and later went to an optical clinic with his wife for the refraction of his eyeglasses. 7 Dr. Tan for his part said he was in Manila. 8 After trial Judge Enrico A. Lanzanas found both accused guilty as charged and sentenced them to suffer the penalty of reclusion perpetua and all accessory penalties. They were also required to pay P200,000.00 to Dr. and Mrs. Enrique Agra as actual and moral damages and attorney's fees. In the present appeal, the accused-appellants reiterate their denial of any participation in the incident in question. They belittle the credibility of the prosecution witnesses and submit that their own witnesses are more believable. Tan specifically challenges the findings of the NBI and offers anew the opposite findings of the PC/INP showing that he was not the writer of the ransom note. He maintains that in any case, the crime alleged is not kidnapping with serious illegal detention as no detention in an enclosure was involved. If at all, it should be denominated and punished only as grave coercion. Finally, both PHILIPPINES, plaintiff-appellee,

Domasian and Tan insist that there is no basis for the finding of a conspiracy between them to make them criminally liable in equal degree. First, on the credibility of the witnesses. This is assessed in the first instance by the trial judge, whose finding in this regard is received with much respect by the appellate court because of his opportunity to directly observe the demeanor of the witnesses on the stand. In the case at bar, Judge Lanzanas relied heavily on the testimony of the victim himself, who positively identified Domasian as the person who detained him for three hours. The trial court observed that the boy was "straight-forward, natural and consistent" in the narration of his detention. The boy's naivete made him even more believable. Tirso Ferreras, Enrico's classmate and also his age, pointed to Domasian with equal certainty, as the man who approached Enrico when they were walking together that morning of March 11, 1982. Grate, the tricycle driver who suspected Enrico's companion and later chased him, was also positive in identifying Domasian. All these three witnesses did not know Domasian until that same morning and could have no ill motive in testifying against him. By contrast, Eugenia Agtay, who testified for the defense, can hardly be considered a disinterested witness because she admitted she had known Domasian for 3 years. The defense asks why Domasian openly took Enrico to several public places if the intention was to kidnap and detain him. That is for Domasian himself to answer. We do no have to probe the reasons for the irrational conduct of an accused. The more important question, as we see it, is why Domasian detained Enrico in the first place after pretending he needed the boy's help. That is also for Domasian to explain. As for Enrico's alleged willingness to go with Domasian, this was manifested only at the beginning, when he believed the man sincerely needed his assistance. But he was soon disabused. His initial confidence gave way to fear when Domasian, after taking him so far away from the hospital where he was going, restrained and threatened him if he did not stop crying. Domasian's alibi cannot stand against his positive identification by Enrico, Grate and Ferreras, let alone the contradictions made by his corroborating witness, Dr. Irene Argosino, regarding the time he was in the optical clinic and the manner of his payment for the refraction. 9 Tan's alibi is not convincing either. The circumstance that he may have been in Manila at the time of the incident does not prove that he could not have written the ransom note except at that time. Concerning the note, Rule 132, Section 22, of the Rules of Court provides as follows: The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person and has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court with writings admitted or treated as genuine by the party against whom the evidence is offered or proved to be genuine to the satisfaction of the judge. Two expert witnesses were presented in the case at bar, one from the NBI, 10 who opined that the ransom note and the standard documents were written by one and the same person, and another from the PC/INP 11who expressed a contrary conclusion. The trial court chose to believe the NBI expert because his examination and analysis "was more comprehensive than the one conducted by the PC/INP handwriting expert, who virtually limited his reliance on the perceived similarities and dissimilarities in the pattern and style of the writing, thereby disregarding the basic principle in handwriting identification that it is not the form alone nor anyone feature but rather a combination of all the qualities that identify." We have held that the value of the opinion of a handwriting expert depends not upon his mere statements of whether a writing is genuine or false, but upon the assistance he may afford in pointing out distinguishing marks, characteristics and discrepancies in and between genuine and false specimens of writing which would ordinarily escape notice or detection from an unpracticed observer. 12 The test of genuineness ought to be the resemblance, not the formation of letters in some other specimens but to the general character of writing, which is impressed on it as the involuntary and unconscious result of constitution, habit or other permanent course, and is, therefore itself permanent. 13 Presented with the conflicting opinions of the witnesses in the case at bar, the Court feels that the scales should tilt in favor of the prosecution. Significantly, the NBI opinion was bolstered by the testimony of Agra, who believed that the ransom note was written by Tan, with whose handwriting he was familiar because they had been working in the hospital for four years and he had seen that handwriting every day in Tan's prescriptions and daily reports. 14 Cesar v. Sandiganbayan 15 is not applicable because that case involved a forgery or the deliberate imitation of another person's signature. In the case before us, there was in fact an effort to disguise the ransom note writer's penmanship to prevent his discovery. As for the nature of the crime committed, Article 267 of the Revised Penal Code provides as follows: Art. 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or detain another, or in any manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than five days. 2. If it shall have been committed simulating public authority. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; of if threats to kill him shall have been made. 4. If the person kidnapped or detained shall be a minor, female or a public officer. The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person; even if none of the circumstances above-mentioned were present in the commission of the offense. Contrary to Tan's submission, this crime may consist not only in placing a person in an enclosure but also in detaining him or depriving him in any manner of his liberty. 16 In the case at bar, it is noted that although the victim was not confined in an enclosure, he was deprived of his liberty when Domasian restrained him from going home and dragged him first into the minibus that took them to the municipal building in Gumaca, thence to the market and then into the tricycle bound for San Vicente. The detention was committed by Domasian, who was a private individual, and Enrico was a minor at that time. The crime clearly comes under Par. 4 of the above-quoted article. Tan claims that the lower court erred in not finding that the sending of the ransom note was an impossible crime which he says is not punishable. His reason is that the second paragraph of Article 4 of the Revised Penal Code provides that criminal liability shall be incurred "by any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means." As the crime alleged is not against persons or property but against liberty, he argues that it is not covered by the said provision. Tan conveniently forgets the first paragraphs of the same article, which clearly applies to him, thus: Art. 4. Criminal liability. Criminal liability shall be incurred: 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended. xxx xxx xxx Even before the ransom note was received, the crime of kidnapping with serious illegal detention had already been committed. The act cannot be considered an impossible crime because there was no inherent improbability of its accomplishment or the employment of inadequate or ineffective means. The delivery of the ransom note after the rescue of the victim did not extinguish the offense, which had already been consummated when Domasian deprived Enrico of his liberty. The sending of the ransom note would have had the effect only of increasing the penalty to death under the last paragraph of Article 267 although this too would not have been possible under the new Constitution. On the issue of conspiracy, we note first that it exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it, whether they act through physical volition of one or all, proceeding severally or collectively. 17 It is settled that conspiracy can be inferred from and proven by the acts of the accused themselves when said acts point to a joint purpose and design, concerted action and community of interests. 18 In the instant case, the trial court correctly held that conspiracy was proved by the act of Domasian in detaining Enrico; the writing of the ransom note by Tan; and its delivery by Domasian to Agra. These acts were complementary to each other and geared toward the attainment of the common ultimate objective, viz., to extort the ransom of P1 million in exchange for Enrico's life. The motive for the offense is not difficult to discover. According to Agra, Tan approached him six days before the incident happened and requested a loan of at least P15,000.00. Agra said he had no funds at that moment and Tan did not believe him, angrily saying that Agra could even raise a million pesos if he really wanted to help. 19 The refusal obviously triggered the plan to kidnap Enrico and demand P1 million for his release. The constitutional issues raised by Domasian do not affect the decision in this case. His claim that he was arrested without warrant and then tortured and held incommunicado to extort a confession from him does not vitiate his conviction. He never gave any confession. As for the allegation that the seizure of the documents used for comparison with the ransom note was made without a search warrant, it suffices to say that such documents were taken by Agra himself and not by the NBI agents or other police authorities. We held in the case of People vs. Andre Marti, 20 that the Bill of Rights cannot be invoked against acts of private individuals, being directed only against the government and its law-enforcement agencies and limitation on official action.

We are satisfied that Tan and Domasian, in conspiracy with each other, committed the crime of kidnapping as defined and penalized under Article 267 of the Revised Penal Code and so deserve the penalty imposed upon them by the trial court. WHEREFORE, the appealed decision is AFFIRMED, with costs against the accused-appellants. Let a copy of this decision be sent to the Commission on Human Rights for investigation of the alleged violation of the constitutional rights of Pablito Domasian. SO ORDERED. Stages of a felony I. Subjective and Objective Phase of a felony G.R. No. L-12155 February 2, 1917 UNITED STATES, plaintiff-appellee,

THE vs. PROTASIO EDUAVE, defendant-appellant. Manuel Roxas Attorney-General Avancea for appellee. MORELAND, J.:

for

appellant.

We believe that the accused is guilty of frustrated murder. We are satisfied that there was an intent to kill in this case. A deadly weapon was used. The blow was directed toward a vital part of the body. The aggressor stated his purpose to kill, thought he had killed, and threw the body into the bushes. When he gave himself up he declared that he had killed the complainant. There was alevosia to qualify the crime as murder if death had resulted. The accused rushed upon the girl suddenly and struck her from behind, in part at least, with a sharp bolo, producing a frightful gash in the lumbar region and slightly to the side eight and one-half inches long and two inches deep, severing all of the muscles and tissues of that part. The motive of the crime was that the accused was incensed at the girl for the reason that she had theretofore charged him criminally before the local officials with having raped her and with being the cause of her pregnancy. He was her mother'squerido and was living with her as such at the time the crime here charged was committed. That the accused is guilty of some crime is not denied. The only question is the precise crime of which he should be convicted. It is contended, in the first place, that, if death has resulted, the crime would not have been murder but homicide, and in the second place, that it is attempted and not frustrated homicide. As to the first contention, we are of the opinion that the crime committed would have been murder if the girl had been killed. It is qualified by the circumstance of alevosia, the accused making a sudden attack upon his victim from the rear, or partly from the rear, and dealing her a terrible blow in the back and side with his bolo. Such an attack necessitates the finding that it was made treacherously; and that being so the crime would have been qualified as murder if death had resulted. As to the second contention, we are of the opinion that the crime was frustrated and not attempted murder. Article 3 of the Penal Code defines a frustrated felony as follows: A felony is frustrated when the offender performs all the acts of execution which should produce the felony as a consequence, but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. An attempted felony is defined thus: There is an attempt when the offender commences the commission of the felony directly by overt acts, and does not perform all the acts of execution which constitute the felony by reason of some cause or accident other than his own voluntarily desistance. The crime cannot be attempted murder. This is clear from the fact that the defendant performed all of the acts which should have resulted in the consummated crime and voluntarily desisted from further acts. A crime cannot be held to be attempted

unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all of the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it can not be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment when all of the acts have been performed which should result in the consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance. To put it in another way, in case of an attempt the offender never passes the subjective phase of the offense. He is interrupted and compelled to desist by the intervention of outside causes before the subjective phase is passed. On the other hand, in case of frustrated crimes the subjective phase is completely passed. Subjectively the crime is complete. Nothing interrupted the offender while he was passing through the subjective phase. The crime, however, is not consummated by reason of the intervention of causes independent of the will of the offender. He did all that was necessary to commit the crime. If the crime did not result as a consequence it was due to something beyond his control. The subjective phase is that portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which, with the prior acts, should result in the consummated crime. From that time forward the phase is objective. It may also be said to be that period occupied by the acts of the offender over which he has control that period between the point where he begins and the points where hevoluntarily desists. If between these two points the offender is stopped by reason of any cause outside of his own voluntary desistance, the subjective phase has not been passed and it is an attempt. If he is not so stopped but continues until he performs the last act, it is frustrated. That the case before us is frustrated is clear. The penalty should have been thirteen years of cadena temporal there being neither aggravating nor mitigating circumstance. As so modified, the judgment is affirmed with costs. So ordered. II. Rape G.R. No. 88724 April 3, 1990 THE PEOPLE OF vs. CEILITO ORITA alias "Lito," defendant-appellant. The Office of the Solicitor General for plaintiff-appellee. C. Manalo for defendant-appellant. THE PHILIPPINES, plaintiff-appellee,

MEDIALDEA, J.: The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in the said case reads as follows (p. 47,Rollo): The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as follows: That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, above named accused with lewd designs and by the use of a Batangas knife he conveniently provided himself for the purpose and with threats and intimidation, did, then and there wilfully, unlawfully and feloniously lay with and succeeded in having sexual intercourse with Cristina S. Abayan against her will and without her consent. CONTRARY TO LAW.

Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the witnesses for the People testified and the exhibits were formally offered and admitted, the prosecution rested its case. Thereafter, the defense opted not to present any exculpatory evidence and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the dispositive portion of which reads (pp. 59-60, Rollo): WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @ LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the aggravating circumstances of dwelling and nightime ( sic) with no mitigating circumstance to offset the same, and considering the provisions of the Indeterminate Sentence Law, imposes on accused an imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S. ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment in case of insolvency, and to pay costs. SO ORDERED. Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29, 1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p. 102, Rollo): WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty of the crime of rape, and consequently, sentenced to suffer imprisonment of reclusion perpetua and to indemnify the victim in the amount of P30,000.00. SO ORDERED. On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988 decision and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of 1948. The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo): Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier. In the early morning of March 20, 1983, complainant arrived at her boarding house. Her classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after her classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a sudden, somebody held her and poked a knife to her neck. She then recognized appellant who was a frequent visitor of another boarder (pp. 8-9, ibid). She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door which led to the first floor was locked from the inside, appellant forced complainant to use the back door leading to the second floor (p. 77, ibid). With his left arm wrapped around her neck and his right hand poking a "balisong" to her neck, appellant dragged complainant up the stairs (p. 14, ibid). When they reached the second floor, he commanded her to look for a room. With the Batangas knife still poked to her neck, they entered complainant's room. Upon entering the room, appellant pushed complainant who hit her head on the wall. With one hand holding the knife, appellant undressed himself. He then ordered complainant to take off her clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and panty (p. 20, ibid). He ordered her to lie down on the floor and then mounted her. He made her hold his penis and insert it in her vagina. She followed his order as he continued to poke the knife to her. At said position, however, appellant could not fully penetrate her. Only a portion of his penis entered her as she kept on moving (p. 23, ibid). Appellant then lay down on his back and commanded her to mount him. In this position, only a small part again of his penis was inserted into her vagina. At this stage, appellant had both his hands flat on the floor. Complainant thought of escaping (p. 20, ibid). She dashed out to the next room and locked herself in. Appellant pursued her and climbed the partition. When she saw him inside the room, she ran to another room. Appellant again chased her. She fled to another room and jumped out through a window (p. 27, ibid). Still naked, she darted to the municipal building, which was about eighteen meters in front of the boarding house, and knocked on the door. When there was no answer, she ran around the building and knocked on the back door. When the policemen who were inside the building opened the door, they found complainant naked sitting on the stairs crying. Pat. Donceras, the first policeman to see her, took off his jacket and wrapped it around her. When they discovered what happened, Pat. Donceras and

two other policemen rushed to the boarding house. They heard a sound at the second floor and saw somebody running away. Due to darkness, they failed to apprehend appellant. Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where she was physically examined. Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical Certificate (Exhibit "A") which states: Physical Examination Patient is fairly built, came in with loose clothing with no under-clothes; appears in state of shock, per unambulatory. PE Findings Pertinent Findings only. Neck- Circumscribed hematoma at Ant. neck. Breast Well developed, conical in shape with prominent nipples; linear abrasions below (L) breast. Back Multiple pinpoint marks. Extremities Abrasions at (R) and (L) knees. Vulva No visible abrasions or marks at the perineal area or over the vulva, errythematous(sic) areas noted surrounding vaginal orifice, tender, hymen intact; no laceration fresh and old noted; examining finger can barely enter and with difficulty; vaginal canal tight; no discharges noted. As aforementioned, the trial court convicted the accused of frustrated rape. In this appeal, the accused assigns the following errors: 1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses; and 2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused. The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore casted doubt to its candor, truth and validity." (p. 33, Rollo) A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as manifestations of truthfulness on material points. These little deviations also confirm that the witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but such honest lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be a strong indication of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves a little discussion which is, the testimony of the victim that the accused asked her to hold and guide his penis in order to have carnal knowledge of her. According to the accused, this is strange because "this is the only case where an aggressor's advances is being helped-out by the victim in order that there will be a consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the testimony of the victim ended there. The victim testified further that the accused was holding a Batangas knife during the aggression. This is a material part of the victim's testimony which the accused conveniently deleted. We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court on the credibility of witnesses should be accorded the highest respect because it has the advantage of observing the demeanor of witnesses and can discern if a witness is telling the truth (People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding the testimony of the victim (p 56, Rollo): As correctly pointed out in the memorandum for the People, there is not much to be desired as to the sincerity of the offended party in her testimony before the court. Her answer to every question profounded ( sic), under all circumstances, are plain and straightforward. To the Court she was a picture of supplication hungry and thirsty for the immediate vindication of the affront to her honor. It is inculcated into the mind of the Court that the accused had wronged her; had traversed illegally her honor.

When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape was committed provided her testimony is clear and free from contradiction and her sincerity and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that she was raped but she testified convincingly on how the rape was committed. The victim's testimony from the time she knocked on the door of the municipal building up to the time she was brought to the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in the medical certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude) declared that the abrasions in the left and right knees, linear abrasions below the left breast, multiple pinpoint marks, circumscribed hematoma at the anterior neck, erythematous area surrounding the vaginal orifice and tender vulva, are conclusive proof of struggle against force and violence exerted on the victim (pp. 52-53, Rollo). The trial court even inspected the boarding house and was fully satisfied that the narration of the scene of the incident and the conditions therein is true (p. 54, Rollo): . . . The staircase leading to the first floor is in such a condition safe enough to carry the weight of both accused and offended party without the slightest difficulty, even in the manner as narrated. The partitions of every room were of strong materials, securedly nailed, and would not give way even by hastily scaling the same. A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al., G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo): . . . And the jump executed by the offended party from that balcony (opening) to the ground which was correctly estimated to be less than eight (8) meters, will perhaps occasion no injury to a frightened individual being pursued. Common experience will tell us that in occasion of conflagration especially occuring ( sic) in high buildings, many have been saved by jumping from some considerable heights without being injured. How much more for a frightened barrio girl, like the offended party to whom honor appears to be more valuable than her life or limbs? Besides, the exposure of her private parts when she sought assistance from authorities, as corroborated, is enough indication that something not ordinary happened to her unless she is mentally deranged. Sadly, nothing was adduced to show that she was out of her mind. In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We ruled that: What particularly imprints the badge of truth on her story is her having been rendered entirely naked by appellant and that even in her nudity, she had to run away from the latter and managed to gain sanctuary in a house owned by spouses hardly known to her. All these acts she would not have done nor would these facts have occurred unless she was sexually assaulted in the manner she narrated. The accused questions also the failure of the prosecution to present other witnesses to corroborate the allegations in the complaint and the non-presentation of the medico-legal officer who actually examined the victim. Suffice it to say that it is up to the prosecution to determine who should be presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the medico-legal officer who actually examined the victim, the trial court stated that it was by agreement of the parties that another physician testified inasmuch as the medico-legal officer was no longer available. The accused did not bother to contradict this statement. Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on its face. Some were not even substantiated and do not, therefore, merit consideration. We are convinced that the accused is guilty of rape. However, We believe the subject matter that really calls for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial court was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim and thus convicted the accused of frustrated rape only. The accused contends that there is no crime of frustrated rape. The Solicitor General shares the same view. Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape: Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious and 3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present. xxx xxx xxx

Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193). On the other hand, Article 6 of the same Code provides: Art. 6. Consummated, frustrated, and attempted felonies. Consummated felonies as well as those which are frustrated and attempted, are punishable. A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. Correlating these two provisions, there is no debate that the attempted and consummated stages apply to the crime of rape. Our concern now is whether or not the frustrated stage applies to the crime of rape. The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which would produce the felony and (2) that the felony is not produced due to causes independent of the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a distinction between attempted and frustrated felonies which is readily understood even by law students: . . . A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all of the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it can not be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment when all of the acts have been performed which should result in the consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance. Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished . Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime . Thus, the felony is consummated. In a long line of cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The offender merely commenced the commission of a felony directly by overt acts . Taking into account the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed. Of course, We are aware of our earlier pronouncement in the case of People v. Eria 50 Phil. 998 [1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of penetration of the genital organ of the offended party. However, it appears that this is a "stray" decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead provision. The Eria case, supra, might have prompted the law-making body to include the crime of frustrated rape in the amendments introduced by said laws. In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the trial court relied on the testimony of Dr. Zamora when he "categorically declared that the findings in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to the offended party the answer as to whether or not there actually was penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo): . . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether there was penetration or not. It is true, and the Court is not oblivious,

that conviction for rape could proceed from the uncorroborated testimony of the offended party and that a medical certificate is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the people relied upon cannot be applicable to the instant case. The testimony of the offended party is at variance with the medical certificate. As such, a very disturbing doubt has surfaced in the mind of the court. It should be stressed that in cases of rape where there is a positive testimony and a medical certificate, both should in all respect, compliment each other, for otherwise to rely on the testimony alone in utter disregard of the manifest variance in the medical certificate, would be productive of mischievous results. The alleged variance between the testimony of the victim and the medical certificate does not exist. On the contrary, it is stated in the medical certificate that the vulva was erythematous (which means marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and tender. It bears emphasis that Dr. Zamora did not rule out penetration of the genital organ of the victim. He merely testified that there was uncertainty whether or not there was penetration. Anent this testimony, the victim positively testified that there was penetration, even if only partially (pp. 302, 304, t.s.n., May 23, 1984): Q Was the penis inserted on your vagina? A It entered but only a portion of it. xxx xxx xxx Q What do you mean when you said comply, or what act do you referred (sic) to, when you said comply? A I inserted his penis into my vagina. Q And was it inserted? A Yes only a little. The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely corroborative and is not an indispensable element in the prosecution of this case (People v. Alfonso, supra). Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused because after a thorough review of the records, We find the evidence sufficient to prove his guilt beyond reasonable doubt of the crime of consummated rape. Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The trial court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited Constitutional provision did not declare the abolition of the death penalty but merely prohibits the imposition of the death penalty, the Court has since February 2, 1987 not imposed the death penalty whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua, being a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of any mitigating or aggravating circumstances (in relation to Article 63, paragraph 1, Revised Penal Code; seePeople v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702). ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00. SO ORDERED. G.R. No. 129433 March 30, 2000 THE PHILIPPINES, plaintiff,

PEOPLE OF vs. PRIMO CAMPUHAN Y BELLO accused. BELLOSILLO, J.:

On 3 April 1990 this Court in People v. Orita 1 finally did away with frustrated rape 2 and allowed only attempted rape and consummated rape to remain in our statute books. The instant case lurks at the threshold of another emasculation of the stages of execution of rape by considering almost every attempt at sexual violation of a woman as consummated rape, that is, if the contrary view were to be adopted. The danger there is that that concept may send the wrong signal to every roaming lothario, whenever the opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since after all any attempted fornication would be considered consummated rape and punished as such. A mere strafing of the citadel of passion would then be considered a deadly fait accompli, which is absurd. In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the victim since by it he attained his objective. All the elements of the offense were already present and nothing more was left for the offender to do, having performed all the acts necessary to produce the crime and accomplish it. We ruled then that perfect penetration was not essential; any penetration of the female organ by the male organ, however slight, was sufficient. The Court further held that entry of the labia or lips of the female organ, even without rupture of the hymen or laceration of the vagina, was sufficient to warrant conviction for consummated rape. We distinguished consummated rape from attempted rape where there was no penetration of the female organ because not all acts of execution were performed as the offender merely commenced the commission of a felony directly by overt acts. 3 The inference that may be derived therefrom is that complete or full penetration of the vagina is not required for rape to be consummated. Any penetration, in whatever degree, is enough to raise the crime to its consummated stage. But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of the female organ, even if there be no rupture of the hymen or laceration of the vagina, to warrant a conviction for consummated rape. While the entry of the penis into the lips of the female organ was considered synonymous with mere touching of the external genitalia, e.g., labia majora, labia minora, etc.,4 the crucial doctrinal bottom line is that touching must be inextricably viewed in light of, in relation to, or as an essential part of, the process of penile penetration, and not just mere touching in the ordinary sense. In other words, the touching must be tacked to the penetration itself. The importance of the requirement of penetration, however slight, cannot be gainsaid because where entry into the labia or the lips of the female genitalia has not been established, the crime committed amounts merely to attempted rape. Verily, this should be the indicium of the Court in determining whether rape has been committed either in its attempted or in its consummated stage; otherwise, no substantial distinction would exist between the two, despite the fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably spells the difference between life and death for the accused a reclusive life that is not even perpetua but only temporal on one hand, and the ultimate extermination of life on the other. And, arguing on another level, if the case at bar cannot be deemed attempted but consummated rape, what then would constitute attempted rape? Must our field of choice be thus limited only to consummated rape and acts of lasciviousness since attempted rape would no longer be possible in light of the view of those who disagree with thisponencia? On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a quo to the extreme penalty of death, 5 hence this case before us on automatic review under Art. 335 of the Revised Penal Code as amended by RA 7659. 6 As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down from the second floor of their house to prepare Milo chocolate drinks for her two (2) children. At the ground floor she met Primo Campuhan who was then busy filling small plastic bags with water to be frozen into ice in the freezer located at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!" 7prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan inside her children's room kneeling before Crysthel whose pajamas or "jogging pants" and panty were already removed, while his short pants were down to his knees. According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified, she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to block his path. Corazon then ran out and shouted for help thus prompting her brother, a cousin and an uncle who were living within their compound, to chase the accused. 8 Seconds later, Primo was apprehended by those who answered Corazon's call for help. They held the accused at the back of their compound until they were advised by their neighbors to call the barangay officials instead of detaining him for his misdeed. Physical examination of the victim yielded negative results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on Crysthel's body as her hymen was intact and its orifice was only 0.5 cm. in diameter. Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against him for his refusal to run an errand for her. 9 He asserted that in truth Crysthel was in a playing mood and wanted to ride on his back when she suddenly pulled him down causing both of them to fall down on the floor. It was in this fallen position that Corazon chanced upon them and became hysterical. Corazon slapped him and accused him of raping her child. He got mad but restrained himself from hitting back when he realized she was a woman. Corazon called for help from her brothers to stop him as he ran down from the second floor.

Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the house of Conrado Plata but Vicente followed him there. Primo pleaded for a chance to explain as he reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives and neighbors of Vicente prevailed upon him to take Primo to the barangay hall instead, and not to maul or possibly kill him. Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs. The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her narration should not be given any weight or credence since it was punctured with implausible statements and improbabilities so inconsistent with human nature and experience. He claims that it was truly inconceivable for him to commit the rape considering that Crysthel's younger sister was also in the room playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence alone as possible eyewitnesses and the fact that the episode happened within the family compound where a call for assistance could easily be heard and responded to, would have been enough to deter him from committing the crime. Besides, the door of the room was wide open for anybody to see what could be taking place inside. Primo insists that it was almost inconceivable that Corazon could give such a vivid description of the alleged sexual contact when from where she stood she could not have possibly seen the alleged touching of the sexual organs of the accused and his victim. He asserts that the absence of any external signs of physical injuries or of penetration of Crysthel's private parts more than bolsters his innocence. In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthel's vagina." The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising the penalty, from reclusion perpetua to death, to the single indivisible penalty of death under RA 7659, Sec. 11, the offended party being below seven (7) years old. We have said often enough that in concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge. 10 But the act of touching should be understood here as inherently part of the entry of the penis into the labias of the female organ and not mere touching alone of the mons pubis or thepudendum. In People v. De la Pea 11 we clarified that the decisions finding a case for rape even if the attacker's penis merely touched the external portions of the female genitalia were made in the context of the presence or existence of an erect penis capable of full penetration. Where the accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into the victim's vagina, the Court nonetheless held that rape was consummated on the basis of the victim's testimony that the accused repeatedly tried, but in vain, to insert his penis into her vagina and in all likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her vulva , 12 or that the penis of the accused touched the middle part of her vagina. 13 Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim's vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. 14 As the labias, which are required to be "touched" by the penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape. The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora. 15 Jurisprudence dictates that the labia majora must be entered for rape to be consummated, 16 and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female organ," 17 but has also progressed into being described as "the introduction of the male organ into the labia of the pudendum," 18 or "the bombardment of the drawbridge." 19 But, to our mild, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of passion. A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving that Primo's penis was able to penetrate Crysthel's vagina however slight. Even if we grant arguendo that Corazon witnessed Primo in the act of

sexually molesting her daughter, we seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and Crysthel. When asked what she saw upon entering her children's room Corazon plunged into saying that she saw Primo poking his penis on the vagina of Crysthel without explaining her relative position to them as to enable her to see clearly and sufficiently, in automotive lingo, the contact point. It should be recalled that when Corazon chanced upon Primo and Crysthel, the former was allegedly in a kneeling position, which Corazon described thus: Q: How was Primo holding your daughter? A: (The witness is demonstrating in such a way that the chest of the accused is pinning down the victim, while his right hand is holding his penis and his left hand is spreading the legs of the victim). It can reasonably be drawn from the foregoing narration that Primo's kneeling position rendered an unbridled observation impossible. Not even a vantage point from the side of the accused and the victim would have provided Corazon an unobstructed view of Primo's penis supposedly reaching Crysthel's external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo would have hidden his movements from Corazon's sight, not to discount the fact that Primo's right hand was allegedly holding his penis thereby blocking it from Corazon's view. It is the burden of the prosecution to establish how Corazon could have seen the sexual contact and to shove her account into the permissive sphere of credibility. It is not enough that she claims that she saw what was done to her daughter. It is required that her claim be properly demonstrated to inspire belief. The prosecution failed in this respect, thus we cannot conclude without any taint of serious doubt that inter-genital contact was at all achieved. To hold otherwise would be to resolve the doubt in favor of the prosecution but to run roughshod over the constitutional right of the accused to be presumed innocent. Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely appearance, thus giving her the opportunity to fully witness his beastly act. We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain where he is and persist in satisfying his lust even when he knows fully well that his dastardly acts have already been discovered or witnessed by no less than the mother of his victim. For, the normal behavior or reaction of Primo upon learning of Corazon's presence would have been to pull his pants up to avoid being caught literally with his pants down. The interval, although relatively short, provided more than enough opportunity for Primo not only to desist from but even to conceal his evil design. What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the court Q: Did the penis of Primo touch your organ? A: Yes, sir. But when asked further whether his penis penetrated her organ, she readily said, "No." Thus Q: But did his penis penetrate your organ? A: No, sir. 20 This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this case was consummated. It has foreclosed the possibility of Primo's penis penetrating her vagina, however slight. Crysthel made a categorical statement denying penetration, 27 obviously induced by a question propounded to her who could not have been aware of the finer distinctions between touching and penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child, whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of worldly sophistication, an adult interpretation that because the penis of the accused touched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the accused touched the middle portion of her vagina and entered the labia of her pudendum as the prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel. 22 Corazon did not say, nay, not even hint that Primo's penis was erect or that he responded with an erection. 23 On the contrary, Corazon even narrated that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate his victim. Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied by the child's own assertion that she resisted Primo's advances by putting her legs close together; 24 consequently, she did not feel any intense pain but just felt "not happy" about what Primo did to her. 25 Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court had anchored its conclusion that rape nevertheless was consummated on the victim's testimony that she felt pain, or the medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or the hymenal tags were no longer visible. 26 None was shown in this case. Although a child's testimony must be received with due consideration on account of her tender age, the Court endeavors at the same time to harness only what in her story appears to be true, acutely aware of the equally guaranteed rights of the accused.

Thus, we have to conclude that even on the basis of the testimony of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to death.1wphi1 Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external signs of physical injuries on complaining witness' body to conclude from a medical perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the absence of complete penetration of the hymen does not negate the possibility of contact, she clarified that there was no medical basis to hold that there was sexual contact between the accused and the victim. 27 In cases of rape where there is a positive testimony and a medical certificate, both should in all respects complement each other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the manifest variance in the medical certificate, would be productive of unwarranted or even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in reality entered the labial threshold of the female organ to accurately conclude that rape was consummated. Failing in this, the thin line that separates attempted rape from consummated rape will significantly disappear. Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of rape directly by overt acts, and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance. All the elements of attempted rape and only of attempted rape are present in the instant case, hence, the accused should be punished only for it. The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of its periods. WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to pay damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight (8) years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20) days of reclusion temporal medium as maximum. Costs de oficio. SO ORDERED. III. Theft G. R. No. 160188 June 21, 2007 NATIVIDAD, petitioner,

ARISTOTEL VALENZUELA y vs. PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS NACHURA, respondents. DECISION TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively concedes having performed the felonious acts imputed against him, but instead insists that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its consummated stage of which he was convicted. The proposition rests on a common theory expounded in two well-known decisions 1 rendered decades ago by the Court of Appeals, upholding the existence of frustrated theft of which the accused in both cases were found guilty. However, the rationale behind the rulings has never been affirmed by this Court. As far as can be told,2 the last time this Court extensively considered whether an accused was guilty of frustrated or consummated theft was in 1918, in People v. Adiao.3 A more cursory treatment of the question was followed in 1929, in People v. Sobrevilla, 4 and in 1984, in Empelis v. IAC.5 This petition now gives occasion for us to finally and fully measure if or how frustrated theft is susceptible to commission under the Revised Penal Code. I.

The basic facts are no longer disputed before us. The case stems from an Information 6 charging petitioner Aristotel Valenzuela (petitioner) and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super Sale Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his post at the open parking area of the supermarket. Lago saw petitioner, who was wearing an identification card with the mark "Receiving Dispatching Unit (RDU)," hauling a push cart with cases of detergent of the well-known "Tide" brand. Petitioner unloaded these cases in an open parking space, where Calderon was waiting. Petitioner then returned inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide Ultramatic and again unloaded these boxes to the same area in the open parking space.7 Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the parking space where Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were apprehended at the scene, and the stolen merchandise recovered.8 The filched items seized from the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods with an aggregate value of P12,090.00.9 Petitioner and Calderon were first brought to the SM security office before they were transferred on the same day to the Baler Station II of the Philippine National Police, Quezon City, for investigation. It appears from the police investigation records that apart from petitioner and Calderon, four (4) other persons were apprehended by the security guards at the scene and delivered to police custody at the Baler PNP Station in connection with the incident. However, after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and Calderon were charged with theft by the Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the incident.10 After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by Lago and his fellow security guards after a commotion and brought to the Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super Sale Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada.11 As the queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket. It was while they were eating that they heard the gunshot fired by Lago, leading them to head out of the building to check what was transpiring. As they were outside, they were suddenly "grabbed" by a security guard, thus commencing their detention.12Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio Valenzuela, 13 had been at the parking lot, walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The gunshot caused him and the other people at the scene to start running, at which point he was apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the security office until around 9:00 p.m., at which time he and the others were brought to the Baler Police Station. At the station, petitioner denied having stolen the cartons of detergent, but he was detained overnight, and eventually brought to the prosecutors office where he was charged with theft.14 During petitioners cross-examination, he admitted that he had been employed as a "bundler" of GMS Marketing, "assigned at the supermarket" though not at SM.15 In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They were sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to seven (7) years of prision mayor as maximum. 17 The RTC found credible the testimonies of the prosecution witnesses and established the convictions on the positive identification of the accused as perpetrators of the crime. Both accused filed their respective Notices of Appeal,18 but only petitioner filed a brief19 with the Court of Appeals, causing the appellate court to deem Calderons appeal as abandoned and consequently dismissed. Before the Court of Appeals, petitioner argued that he should only be convicted of frustrated theft since at the time he was apprehended, he was never placed in a position to freely dispose of the articles stolen. 20 However, in its Decision dated 19 June 2003, 21 the Court of Appeals rejected this contention and affirmed petitioners conviction.22 Hence the present Petition for Review, 23 which expressly seeks that petitioners conviction "be modified to only of Frustrated Theft."24 Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual participation in the theft of several cases of detergent with a total value of P12,090.00 of which he was charged. 25 As such, there is no cause for the Court to consider a factual scenario other than that presented by the prosecution, as affirmed by the RTC and the Court of Appeals. The only question to consider is whether under the given facts, the theft should be deemed as consummated or merely frustrated. II. In arguing that he should only be convicted of frustrated theft, petitioner cites26 two decisions rendered many years ago by the Court of Appeals: People v. Dio27 and People v. Flores.28 Both decisions elicit the interest of this Court, as they modified trial court convictions from consummated to frustrated theft and involve a factual milieu that bears similarity to the present case.

Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet the appellate court did not expressly consider the import of the rulings when it affirmed the conviction. It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores rulings since they have not yet been expressly adopted as precedents by this Court. For whatever reasons, the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the silence on our part, Dio and Flores have attained a level of renown reached by very few other appellate court rulings. They are comprehensively discussed in the most popular of our criminal law annotations, 29 and studied in criminal law classes as textbook examples of frustrated crimes or even as definitive of frustrated theft. More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law exams more than they actually occur in real life. Indeed, if we finally say that Dio and Flores are doctrinal, such conclusion could profoundly influence a multitude of routine theft prosecutions, including commonplace shoplifting. Any scenario that involves the thief having to exit with the stolen property through a supervised egress, such as a supermarket checkout counter or a parking area pay booth, may easily call for the application of Dio and Flores. The fact that lower courts have not hesitated to lay down convictions for frustrated theft further validates that Dio and Flores and the theories offered therein on frustrated theft have borne some weight in our jurisprudential system. The time is thus ripe for us to examine whether those theories are correct and should continue to influence prosecutors and judges in the future. III. To delve into any extended analysis of Dio and Flores, as well as the specific issues relative to "frustrated theft," it is necessary to first refer to the basic rules on the three stages of crimes under our Revised Penal Code.30 Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is consummated "when all the elements necessary for its execution and accomplishment are present." It is frustrated "when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator." Finally, it is attempted "when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance." Each felony under the Revised Penal Code has a "subjective phase," or that portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which, with prior acts, should result in the consummated crime.31 After that point has been breached, the subjective phase ends and the objective phase begins.32 It has been held that if the offender never passes the subjective phase of the offense, the crime is merely attempted.33 On the other hand, the subjective phase is completely passed in case of frustrated crimes, for in such instances, "[s]ubjectively the crime is complete."34 Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies on the other. So long as the offender fails to complete all the acts of execution despite commencing the commission of a felony, the crime is undoubtedly in the attempted stage. Since the specific acts of execution that define each crime under the Revised Penal Code are generally enumerated in the code itself, the task of ascertaining whether a crime is attempted only would need to compare the acts actually performed by the accused as against the acts that constitute the felony under the Revised Penal Code. In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that all of the acts of execution have been performed by the offender. The critical distinction instead is whether the felony itself was actually produced by the acts of execution. The determination of whether the felony was "produced" after all the acts of execution had been performed hinges on the particular statutory definition of the felony. It is the statutory definition that generally furnishes the elements of each crime under the Revised Penal Code, while the elements in turn unravel the particular requisite acts of execution and accompanying criminal intent. The long-standing Latin maxim "actus non facit reum, nisi mens sit rea" supplies an important characteristic of a crime, that "ordinarily, evil intent must unite with an unlawful act for there to be a crime," and accordingly, there can be no crime when the criminal mind is wanting.35 Accepted in this jurisdiction as material in crimes mala in se, 36 mens rea has been defined before as "a guilty mind, a guilty or wrongful purpose or criminal intent," 37 and "essential for criminal liability."38 It follows that the statutory definition of our mala in se crimes must be able to supply what the mens rea of the crime is, and indeed the U.S. Supreme Court has comfortably held that "a criminal law that contains no mens rea requirement infringes on constitutionally protected rights."39 The criminal statute must also provide for the overt acts that constitute the crime. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also be an actus reus.40 It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is produced. As a postulate in the craftsmanship of constitutionally sound laws, it is extremely preferable that the language of the law expressly provide when the felony is produced. Without such provision, disputes would inevitably ensue on the elemental question

whether or not a crime was committed, thereby presaging the undesirable and legally dubious set-up under which the judiciary is assigned the legislative role of defining crimes. Fortunately, our Revised Penal Code does not suffer from such infirmity. From the statutory definition of any felony, a decisive passage or term is embedded which attests when the felony is produced by the acts of execution. For example, the statutory definition of murder or homicide expressly uses the phrase "shall kill another," thus making it clear that the felony is produced by the death of the victim, and conversely, it is not produced if the victim survives. We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are spelled out as follows: Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latters consent. Theft is likewise committed by: 1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner; 2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him; and 3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products. Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which theft may be committed.41 In the present discussion, we need to concern ourselves only with the general definition since it was under it that the prosecution of the accused was undertaken and sustained. On the face of the definition, there is only one operative act of execution by the actor involved in theft the taking of personal property of another. It is also clear from the provision that in order that such taking may be qualified as theft, there must further be present the descriptive circumstances that the taking was with intent to gain; without force upon things or violence against or intimidation of persons; and it was without the consent of the owner of the property. Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal Code, namely: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.42 In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law as defined by Gaius, was so broad enough as to encompass "any kind of physical handling of property belonging to another against the will of the owner,"43 a definition similar to that by Paulus that a thief "handles (touches, moves) the property of another."44 However, with the Institutes of Justinian, the idea had taken hold that more than mere physical handling, there must further be an intent of acquiring gain from the object, thus: "[f]urtum est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve." 45 This requirement of animo lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has since been abandoned in Great Britain.46 In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to characterize theft. Justice Regalado notes that the concept of apoderamiento once had a controversial interpretation and application. Spanish law had already discounted the belief that mere physical taking was constitutive of apoderamiento, finding that it had to be coupled with "the intent to appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the lawful owner of the thing."47 However, a conflicting line of cases decided by the Court of Appeals ruled, alternatively, that there must be permanency in the taking48 or an intent to permanently deprive the owner of the stolen property;49 or that there was no need for permanency in the taking or in its intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of the owner already constituted apoderamiento.50 Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there was no need of an intent to permanently deprive the owner of his property to constitute an unlawful taking.51 So long as the "descriptive" circumstances that qualify the taking are present, including animo lucrandi and apoderamiento, the completion of the operative act that is the taking of personal property of another establishes, at least, that the transgression went beyond the attempted stage. As applied to the present case, the moment petitioner obtained physical possession of the cases of detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed without need to inflict violence or intimidation against persons nor force upon things, and accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction for only attempted theft would have afforded him. On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft would have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce theft as a consequence, "do not produce [such theft] by reason of

causes independent of the will of the perpetrator." There are clearly two determinative factors to consider: that the felony is not "produced," and that such failure is due to causes independent of the will of the perpetrator. The second factor ultimately depends on the evidence at hand in each particular case. The first, however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised Penal Code52 as to when a particular felony is "not produced," despite the commission of all the acts of execution. So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly is the felony of theft "produced." Parsing through the statutory definition of theft under Article 308, there is one apparent answer provided in the language of the law that theft is already "produced" upon the "tak[ing of] personal property of another without the latters consent." U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was charged with theft after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the Custom House. At no time was the accused able to "get the merchandise out of the Custom House," and it appears that he "was under observation during the entire transaction."54 Based apparently on those two circumstances, the trial court had found him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and holding instead that the accused was guilty of consummated theft, finding that "all the elements of the completed crime of theft are present." 55 In support of its conclusion that the theft was consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion of which we replicate below: The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ] in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that the policemen who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from taking full possession of the thing stolen and even its utilization by him for an interval of time." (Decision of the Supreme Court of Spain, October 14, 1898.) Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account of the solemnity of the act, although noticing the theft, did not do anything to prevent it. Subsequently, however, while the defendant was still inside the church, the offended party got back the money from the defendant. The court said that the defendant had performed all the acts of execution and considered the theft as consummated. (Decision of the Supreme Court of Spain, December 1, 1897.) The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the case took a small box, which was also opened with a key, from which in turn he took a purse containing 461 reales and 20 centimos, and then he placed the money over the cover of the case; just at this moment he was caught by two guards who were stationed in another room near-by. The court considered this as consummated robbery, and said: "[x x x] The accused [x x x] having materially taken possession of the money from the moment he took it from the place where it had been, and having taken it with his hands with intent to appropriate the same, he executed all the acts necessary to constitute the crime which was thereby produced; only the act of making use of the thing having been frustrated, which, however, does not go to make the elements of the consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.)56 It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in all these cases had been able to obtain full possession of the personal property prior to their apprehension. The interval between the commission of the acts of theft and the apprehension of the thieves did vary, from "sometime later" in the 1898 decision; to the very moment the thief had just extracted the money in a purse which had been stored as it was in the 1882 decision; and before the thief had been able to spirit the item stolen from the building where the theft took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no consequence in those cases, as it was ruled that the thefts in each of those cases was consummated by the actual possession of the property belonging to another. In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than consummated theft. The case is People v. Sobrevilla,57 where the accused, while in the midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers of the victim when the latter, perceiving the theft, "caught hold of the [accused]s shirt-front, at the same time shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the defendant, who was afterwards caught by a policeman." 58 In rejecting the contention that only frustrated theft was established, the Court simply said, without further comment or elaboration: We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that determines the crime of theft. If the pocket-book was afterwards recovered, such recovery does not affect the [accuseds] criminal liability, which arose from the [accused] having succeeded in taking the pocket-book.59 If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the fact that the offender was able to succeed in obtaining physical possession of the stolen item, no matter how momentary, was able to consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this case. Yet to simply affirm without further comment would be disingenuous, as there is another school of thought on when theft is consummated, as reflected in the Dio and Flores decisions. Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The accused therein, a driver employed by the United States Army, had driven his truck into the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army personnel. After he had finished unloading, accused drove away his truck from the Port, but as he was approaching a checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later contended that he had been stopped by four men who had loaded the boxes with the agreement that they were to meet him and retrieve the rifles after he had passed the checkpoint. The trial court convicted accused of consummated theft, but the Court of Appeals modified the conviction, holding instead that only frustrated theft had been committed. In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles "pass through the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it would be allowed to pass through the check point without further investigation or checking."60 This point was deemed material and indicative that the theft had not been fully produced, for the Court of Appeals pronounced that "the fact determinative of consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or less momentary." 61Support for this proposition was drawn from a decision of the Supreme Court of Spain dated 24 January 1888 (1888 decision), which was quoted as follows: Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya producido en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena.62 Integrating these considerations, the Court of Appeals then concluded: This court is of the opinion that in the case at bar, in order to make the booty subject to the control and disposal of the culprits, the articles stolen must first be passed through the M.P. check point, but since the offense was opportunely discovered and the articles seized after all the acts of execution had been performed, but before the loot came under the final control and disposal of the looters, the offense can not be said to have been fully consummated, as it was frustrated by the timely intervention of the guard. The offense committed, therefore, is that of frustrated theft.63 Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of apprehension is determinative as to whether the theft is consummated or frustrated. This theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which according to the division of the court that decided it, bore "no substantial variance between the circumstances [herein] and in [Dio]."64 Such conclusion is borne out by the facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his truck at the terminal of the stevedoring company. The truck driver proceeded to show the delivery receipt to the guard on duty at the gate of the terminal. However, the guards insisted on inspecting the van, and discovered that the "empty" sea van had actually contained other merchandise as well. 65 The accused was prosecuted for theft qualified by abuse of confidence, and found himself convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative that he was guilty only of attempted theft, but the appellate court pointed out that there was no intervening act of spontaneous desistance on the part of the accused that "literally frustrated the theft." However, the Court of Appeals, explicitly relying on Dio, did find that the accused was guilty only of frustrated, and not consummated, theft. As noted earlier, the appellate court admitted it found "no substantial variance" between Dio and Flores then before it. The prosecution in Flores had sought to distinguish that case from Dio, citing a "traditional ruling" which unfortunately was not identified in the decision itself. However, the Court of Appeals pointed out that the said "traditional ruling" was qualified by the words "is placed in a situation where [the actor] could dispose of its contents at once." 66 Pouncing on this qualification, the appellate court noted that "[o]bviously, while the truck and the van were still within the compound, the petitioner could not have disposed of the goods at once." At the same time, the Court of Appeals conceded that "[t]his is entirely different from the case where a much less bulk and more common thing as money was the object of the crime, where freedom to dispose of or make use of it is palpably less restricted,"67 though no further qualification was offered what the effect would have been had that alternative circumstance been present instead. Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to whether the crime of theft was produced is the ability of the actor "to freely dispose of the articles stolen, even if it were only momentary." Such conclusion was drawn from an 1888 decision of the Supreme Court of Spain which had pronounced that in determining whether theft had been consummated, "es preciso que so haga en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas o menos momentaneamente." The qualifier "siquiera sea mas o menos momentaneamente" proves another important consideration, as it implies that if the actor was in a capacity to freely dispose of the stolen items before apprehension, then the theft could be deemed consummated. Such circumstance was not present in either Dio or Flores, as the stolen items in both cases were retrieved from the actor before they could be physically extracted from the guarded compounds from which

the items were filched. However, as implied in Flores, the character of the item stolen could lead to a different conclusion as to whether there could have been "free disposition," as in the case where the chattel involved was of "much less bulk and more common x x x, [such] as money x x x."68 In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Dio ruling: There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely dispose of the stolen articles even if it were more or less momentary. Or as stated in another case[ 69 ], theft is consummated upon the voluntary and malicious taking of property belonging to another which is realized by the material occupation of the thing whereby the thief places it under his control and in such a situation that he could dispose of it at once. This ruling seems to have been based on Viadas opinion that in order the theft may be consummated, "es preciso que se haga en circumstancias x x x [70 ]"71 In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states that "[i]n theft or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same, although his act of making use of the thing was frustrated."72 There are at least two other Court of Appeals rulings that are at seeming variance with the Dio and Flores rulings. People v. Batoon73 involved an accused who filled a container with gasoline from a petrol pump within view of a police detective, who followed the accused onto a passenger truck where the arrest was made. While the trial court found the accused guilty of frustrated qualified theft, the Court of Appeals held that the accused was guilty of consummated qualified theft, finding that "[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking with intent to gain is enough to consummate the crime of theft."74 In People v. Espiritu,75 the accused had removed nine pieces of hospital linen from a supply depot and loaded them onto a truck. However, as the truck passed through the checkpoint, the stolen items were discovered by the Military Police running the checkpoint. Even though those facts clearly admit to similarity with those in Dio, the Court of Appeals held that the accused were guilty of consummated theft, as the accused "were able to take or get hold of the hospital linen and that the only thing that was frustrated, which does not constitute any element of theft, is the use or benefit that the thieves expected from the commission of the offense."76 In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that "[w]hen the meaning of an element of a felony is controversial, there is bound to arise different rulings as to the stage of execution of that felony." 77 Indeed, we can discern from this survey of jurisprudence that the state of the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed foundational basis of the concept of frustrated theft itself, the question can even be asked whether there is really such a crime in the first place. IV. The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As we undertake this inquiry, we have to reckon with the import of this Courts 1984 decision in Empelis v. IAC.78 As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his plantation, in the act of gathering and tying some coconuts. The accused were surprised by the owner within the plantation as they were carrying with them the coconuts they had gathered. The accused fled the scene, dropping the coconuts they had seized, and were subsequently arrested after the owner reported the incident to the police. After trial, the accused were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised Penal Code, 79 but further held that the accused were guilty only of frustrated qualified theft. It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was raised by any of the parties. What does appear, though, is that the disposition of that issue was contained in only two sentences, which we reproduce in full: However, the crime committed is only frustrated qualified theft because petitioners were not able to perform all the acts of execution which should have produced the felony as a consequence. They were not able to carry the coconuts away from the plantation due to the timely arrival of the owner.80 No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish authorities who may have bolstered the conclusion. There are indeed evident problems with this formulation in Empelis. Empelis held that the crime was only frustrated because the actors "were not able to perform all the acts of execution which should have produced the felon as a consequence."81 However, per Article 6 of the Revised Penal Code, the crime is frustrated "when the offender performs all the acts of execution," though not producing the felony as a result. If the offender

was not able to perform all the acts of execution, the crime is attempted, provided that the non-performance was by reason of some cause or accident other than spontaneous desistance. Empelis concludes that the crime was frustrated because not all of the acts of execution were performed due to the timely arrival of the owner. However, following Article 6 of the Revised Penal Code, these facts should elicit the conclusion that the crime was only attempted, especially given that the acts were not performed because of the timely arrival of the owner, and not because of spontaneous desistance by the offenders. For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two sentences we had cited actually aligned with the definitions provided in Article 6 of the Revised Penal Code, such passage bears no reflection that it is the product of the considered evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were sourced from an indubitable legal premise so settled it required no further explication. Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we cannot see how Empelis can contribute to our present debate, except for the bare fact that it proves that the Court had once deliberately found an accused guilty of frustrated theft. Even if Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely compromised by the erroneous legal premises that inform it, and also by the fact that it has not been entrenched by subsequent reliance. Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot present any efficacious argument to persuade us in this case. Insofar as Empelis may imply that convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to reassessment. V. At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espaa was then in place. The definition of the crime of theft, as provided then, read as follows: Son reos de hurto: 1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su dueo. 2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren co intencin de lucro. 3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo los casos previstos en los artculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617 y 618. It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were handed down. However, the said code would be revised again in 1932, and several times thereafter. In fact, under the Codigo Penal Espaol de 1995, the crime of theft is now simply defined as "[e]l que, con nimo de lucro, tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado"82 Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre disposicion" of the property is not an element or a statutory characteristic of the crime. It does appear that the principle originated and perhaps was fostered in the realm of Spanish jurisprudence. The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo Penal de Espaa. Therein, he raised at least three questions for the reader whether the crime of frustrated or consummated theft had occurred. The passage cited in Dio was actually utilized by Viada to answer the question whether frustrated or consummated theft was committed "[e]l que en el momento mismo de apoderarse de la cosa ajena, vindose sorprendido, la arroja al suelo."83 Even as the answer was as stated in Dio, and was indeed derived from the 1888 decision of the Supreme Court of Spain, that decisions factual predicate occasioning the statement was apparently very different from Dio, for it appears that the 1888 decision involved an accused who was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a mannequin, and who then proceeded to throw away the garment as he fled.84 Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the Supreme Court of Spain that have held to that effect. 85 A few decades later, the esteemed Eugenio Cuello Caln pointed out the inconsistent application by the Spanish Supreme Court with respect to frustrated theft.

Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino del carro que los conducia a otro que tenan preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la intervencin de la policia situada en el local donde se realiz la sustraccin que impidi pudieran los reos disponer de lo sustrado, 30 de octubre 1950. Hay "por lo menos" frustracin, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay frustracin "muy prxima" cuando el culpable es detenido por el perjudicado acto seguido de cometer la sustraccin, 28 febrero 1931. Algunos fallos han considerado la existencia de frustracin cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, stos, conforme a lo antes expuesto, son hurtos consumados.86 Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible: La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de hecho a la disposicin del agente. Con este criterio coincide la doctrina sentada ltimamente porla jurisprudencia espaola que generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y sta quede por tiempo ms o menos duradero bajo su poder. El hecho de que ste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carcter de consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe la frustracin, pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos delitos consumados. 87 (Emphasis supplied) Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish Supreme Court decisions on the matter, Cuello Caln actually set forth his own thought that questioned whether theft could truly be frustrated, since "pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume efectivamente." Otherwise put, it would be difficult to foresee how the execution of all the acts necessary for the completion of the crime would not produce the effect of theft. This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges us to accept frustrated theft, as proposed in Dio and Flores. A final ruling by the Court that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah, for such a submission is hardly heretical in light of Cuello Calns position. Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh perspective, as we are not bound by the opinions of the respected Spanish commentators, conflicting as they are, to accept that theft is capable of commission in its frustrated stage. Further, if we ask the question whether there is a mandate of statute or precedent that must compel us to adopt the Dio and Flores doctrines, the answer has to be in the negative. If we did so, it would arise not out of obeisance to an inexorably higher command, but from the exercise of the function of statutory interpretation that comes as part and parcel of judicial review, and a function that allows breathing room for a variety of theorems in competition until one is ultimately adopted by this Court. V. The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature, through statute, to define what constitutes a particular crime in this jurisdiction. It is the legislature, as representatives of the sovereign people, which determines which acts or combination of acts are criminal in nature. Judicial interpretation of penal laws should be aligned with what was the evident legislative intent, as expressed primarily in the language of the law as it defines the crime. It is Congress, not the courts, which is to define a crime, and ordain its punishment. 88 The courts cannot arrogate the power to introduce a new element of a crime which was unintended by the legislature, or redefine a crime in a manner that does not hew to the statutory language. Due respect for the prerogative of Congress in defining crimes/felonies constrains the Court to refrain from a broad interpretation of penal laws where a "narrow interpretation" is appropriate. "The Court must take heed of language, legislative history and purpose, in order to strictly determine the wrath and breath of the conduct the law forbids."89 With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of the offender to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in Article 308, whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony. To restate what this Court has repeatedly held: the elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things.90 Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal property of another without the latters consent. While the Dio/Flores dictum is considerate to the mindset of the offender, the statutory definition of theft considers only the perspective of intent to gain on the part of the offender, compounded by the deprivation of property on the part of the victim. For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is again, when is the crime of theft produced? There would be all but certain unanimity in the position that theft is produced when there is deprivation of personal property due to its taking by one with intent to gain. Viewed from that perspective, it is immaterial to the

product of the felony that the offender, once having committed all the acts of execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone has already ensued from such acts of execution. This conclusion is reflected in Chief Justice Aquinos commentaries, as earlier cited, that "[i]n theft or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same, although his act of making use of the thing was frustrated."91 It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of "taking" itself, in that there could be no true taking until the actor obtains such degree of control over the stolen item. But even if this were correct, the effect would be to downgrade the crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution have not been completed, the "taking not having been accomplished." Perhaps this point could serve as fertile ground for future discussion, but our concern now is whether there is indeed a crime of frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover, such issue will not apply to the facts of this particular case. We are satisfied beyond reasonable doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired physical possession of the stolen cases of detergent for a considerable period of time that he was able to drop these off at a spot in the parking lot, and long enough to load these onto a taxicab. Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. 92 And long ago, we asserted in People v. Avila:93 x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into the physical power of the thief, which idea is qualified by other conditions, such as that the taking must be effected animo lucrandi and without the consent of the owner; and it will be here noted that the definition does not require that the taking should be effected against the will of the owner but merely that it should be without his consent, a distinction of no slight importance.94 Insofar as we consider the present question, "unlawful taking" is most material in this respect. Unlawful taking, which is the deprivation of ones personal property, is the element which produces the felony in its consummated stage. At the same time, without unlawful taking as an act of execution, the offense could only be attempted theft, if at all. With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot have a frustrated stage. Theft can only be attempted or consummated. Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained possession over the stolen items, the effect of the felony has been produced as there has been deprivation of property. The presumed inability of the offenders to freely dispose of the stolen property does not negate the fact that the owners have already been deprived of their right to possession upon the completion of the taking. Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to freely dispose of the stolen property frustrates the theft would introduce a convenient defense for the accused which does not reflect any legislated intent,95 since the Court would have carved a viable means for offenders to seek a mitigated penalty under applied circumstances that do not admit of easy classification. It is difficult to formulate definite standards as to when a stolen item is susceptible to free disposal by the thief. Would this depend on the psychological belief of the offender at the time of the commission of the crime, as implied in Dio? Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the property, the location of the property, the number and identity of people present at the scene of the crime, the number and identity of people whom the offender is expected to encounter upon fleeing with the stolen property, the manner in which the stolen item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would come into account, relevant as that would be on whether such property is capable of free disposal at any stage, even after the taking has been consummated. All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed deprived of property by one who intended to produce such deprivation for reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for therein, all of the acts of execution, including the taking, have been completed. If the facts establish the non-completion of the taking due to these peculiar circumstances, the effect could be to downgrade the crime to the attempted stage, as not all of the acts of execution have been performed. But once all these acts have been executed, the taking has been completed, causing the unlawful deprivation of property, and ultimately the consummation of the theft. Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the legislated framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed in such fashion as to accommodate said rulings. Again, there is no language in Article 308 that expressly or impliedly allows that the "free disposition of the items stolen" is in any way determinative of whether the crime of theft has been produced. Dio itself did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was ultimately content in relying on Dio alone for legal support. These cases do not enjoy the weight of stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not since found favor from this Court.

We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched the success of his appeal on our acceptance of the Dio and Flores rulings, his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken all these years for us to recognize that there can be no frustrated theft under the Revised Penal Code does not detract from the correctness of this conclusion. It will take considerable amendments to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to Viada yields to the higher reverence for legislative intent. WHEREFORE, the petition is DENIED. Costs against petitioner. SO ORDERED. IV. Robbery .R. No. L-43530 August 3, 1935 THE PHILIPPINE ISLANDS, plaintiff-appellee,

THE PEOPLE OF vs. AURELIO LAMAHANG, defendant-appellant. Honesto K. Office of the Solicitor-General Hilado for appellee. RECTO, J.:

Bausa

for

appellant.

The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two years and four months of prision correccional and to an additional penalty of ten years and one day of prision mayor for being an habitual delinquent, with the accessory penalties of the law, and to pay the costs of the proceeding. At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R. Fuentes streets of the City of Iloilo, caught the accused in the act of making an opening with an iron bar on the wall of a store of cheap goods located on the last named street. At that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The accused had only succeeded in breaking one board and in unfastening another from the wall, when the policeman showed up, who instantly arrested him and placed him under custody. The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and the Solicitor-General, as constituting attempted robbery, which we think is erroneous. It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical relation to a particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation. The attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of the Penal Code. There is no doubt that in the case at bar it was the intention of the accused to enter Tan Yu's store by means of violence, passing through the opening which he had started to make on the wall, in order to commit an offense which, due to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one of the offenses defined and punished by the Code; it is necessary to prove that said beginning of execution, if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. Thus, in case of robbery, in order that the simple act of entering by means of force or violence another person's dwelling may be considered an attempt to commit this offense, it must be shown that the offender clearly intended to take possession, for the purpose of gain, of some personal property belonging to another. In the instant case, there is nothing in the record from which such purpose of the accused may reasonably be inferred. From the fact established and stated in the decision, that the accused on the day in question was making an opening by means of an iron bar on the wall of Tan Yu's store, it may only be inferred as a logical conclusion that his evident intention was to enter by means of force said store against the will of its owner. That his final objective, once he succeeded in entering the store, was to rob, to cause physical injury to the inmates, or to commit any other offense, there is nothing in the record to justify a concrete finding.1avvphil.et It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage is wanting, the nature of the action intended ( accion fin) cannot exactly be ascertained, but the same must be inferred from the nature of the acts executed (accion medio). Hence, the necessity that these acts be such that by their very nature, by the facts to which they are related, by the circumstances of the persons performing the same, and by the things connected therewith, they must show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible of double interpretation , that is, in favor as well as against the culprit, and which show an innocent as well as a punishable act, must not and can not furnish

grounds by themselves for attempted nor frustrated crimes. The relation existing between the facts submitted for appreciation and the offense which said facts are supposed to produce must be direct; the intention must be ascertained from the facts and therefore it is necessary, in order to avoid regrettable instances of injustice, that the mind be able to directly infer from them the intention of the perpetrator to cause a particular injury. This must have been the intention of the legislator in requiring that in order for an attempt to exist, the offender must commence the commission of the felony directly by overt acts, that is to say, that the acts performed must be such that, without the intent to commit an offense, they would be meaningless. Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the offense, are not punished except when they are aimed directly to its execution, and therefore they must have an immediate and necessary relation to the offense." Considering says the Supreme Court of Spain in its decision of March 21, 1892 that in order to declare that such and such overt acts constitute an attempted offense it is necessary that their objective be known and established, or that said acts be of such nature that they themselves should obviously disclose the criminal objective necessarily intended, said objective and finality to serve as ground for the designation of the offense: . . . . In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme Court of Spain therein cited). Under article 280 of the Revised Penal Code, this offense is committed when a private person shall enter the dwelling of another against the latter's will. The accused may be convicted and sentenced for an attempt to commit this offense in accordance with the evidence and the following allegation contained in the information: "... the accused armed with an iron bar forced the wall of said store by breaking a board and unfastening another for the purpose of entering said store ... and that the accused did not succeed in entering the store due to the presence of the policeman on beat Jose Tomambing, who upon hearing the noise produced by the breaking of the wall, promptly approached the accused ... ." Under the circumstances of this case the prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused must be taken into consideration the aggravating circumstances of nighttime and former convictions, inasmuch as the record shows that several final judgments for robbery and theft have been rendered against him and in his favor, the mitigating circumstance of lack of instruction. The breaking of the wall should not be taken into consideration as an aggravating circumstance inasmuch as this is the very fact which in this case constitutes the offense of attempted trespass to dwelling. The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed with force, is prision correccional in its medium and maximum periods and a fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and medium periods. Because of the presence of two aggravating circumstances and one mitigating circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the same Code, the accused is not entitled to credit for onehalf of his preventive imprisonment. Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to dwelling, committed by means of force, with the aforesaid aggravating and mitigating circumstances and sentenced to three months and one day of arresto mayor, with the accessory penalties thereof and to pay the costs. Avancea, C.J., Abad Santos, Hull, and Vickers, JJ., concur. G.R. No. 86163 April 26, 1990 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, and SIMPLICIO CANASARES, BIENVENIDO SALVILLA, defendant-appellant. The Solicitor General for plaintiff-appellee. Resurreccion S. Salvilla for defendant-appellant.

MELENCIO-HERRERA, J.: Accused Bienvenido Salvilla alone appeals from the Decision of the Regional Trial Court, Branch 28, Iloilo City, * dated 29 August 1988, in Criminal Case No. 20092, finding him and his co-accused Reynaldo, Ronaldo and Simplicio, all surnamed Canasares, guilty beyond reasonable doubt of the crime of "Robbery with Serious Physical Injuries and Serious Illegal Detention" and sentencing them to suffer the penalty of reclusion perpetua.

The Information filed against them reads: The undersigned City Fiscal accuses BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, and SIMPLICIO CANASARES, whose maternal surnames, dated and places of birth cannot be ascertained of the crime of ROBBERY WITH SERIOUS PHYSICAL INJURIES AND SERIOUS ILLEGAL DETENTION (Art, 294, paragraph 3, in conjunction with Article 267 of the Revised Penal Code), committed as follows: That on or about the 12th day of April, 1986, in the City of Iloilo, Philippines and within the jurisdiction of this Court, said accused, conspiring and confederating among themselves, working together and helping one another, armed with guns and handgrenade and with the use of violence or intimidation employed on the person of Severino Choco, Mary Choco, Mimie Choco and Rodita Hablero did then and there wilfully, unlawfully and criminally take and carry away, with intent of gain, cash in the amount of P20,000.00, two (2) Men's wrist watches, one (1) Lady's Seiko quartz wrist watch and one (1) Lady's Citizen wrist watch and assorted jewelries, all valued at P50,000.00; that on the occasion and by reason of said robbery, Mary Choco suffered serious physical injuries under paragraph 2 of Article 263, Bienvenido Salvilla likewise suffered serious physical injuries and Reynaldo Canasares also suffered physical injuries; that the said accused also illegally detained, at the compound of the New Iloilo Lumber Company, Iznart Street, Iloilo City, Severino Choco, owner/proprietor of said Lumber Company, Mary Choco, Mimie Choco, who is a minor, being 15 years of age, and Rodita Hablero, who is a salesgirl at said Company; that likewise on the occasion of the robbery, the accused also asked and were given a ransom money of P50,000.00; that the said crime was attended by aggravating circumstances of band, and illegal possession of firearms and explosives; that the amount of P20,000.00, the ransom money of P50,000.00, two (2) Men's wrist watches, two (2) lady's wrist watches, one (1) .38 caliber revolver and one (1) live grenade were recovered from the accused; to the damage and prejudice of the New Iloilo Lumber Company in the amount of P120,000.00. The evidence for the prosecution may be re-stated as follows: On 12 April 1986, a robbery was staged by the four accused at the New Iloilo Lumber Yard at about noon time. The plan was hatched about two days before. The accused were armed with homemade guns and a hand grenade. When they entered the establishment, they met Rodita Hablero an employee thereat who was on her way out for her meal break and announced to her that it was a hold-up. She was made to go back to the office and there Appellant Salvilla pointed his gun at the owner, Severino Choco, and his two daughters, Mary and Mimie the latter being a minor 15 years of age, and told the former that all they needed was money. Hearing this, Severino told his daughter, Mary, to get a paper bag wherein he placed P20,000.00 cash (P5,000.00, according to the defense) and handed it to Appellant. Thereafter, Severino pleaded with the four accused to leave the premises as they already had the money but they paid no heed. Instead, accused Simplicio Canasares took the wallet and wristwatch of Severino after which the latter, his two daughters, and Rodita, were herded to the office and kept there as hostages. At about 2:00 o'clock of the same day, the hostages were allowed to eat. The four accused also took turns eating while the others stood guard. Then, Appellant told Severino to produce P100,000.00 so he and the other hostages could be released. Severino answered that he could not do so because it was a Saturday and the banks were closed. In the meantime, police and military authorities had surrounded the premises of the lumber yard. Major Melquiades B. Sequio Station Commander of the INP of Iloilo City, negotiated with the accused using a loud speaker and appealed to them to surrender with the assurance that no harm would befall them as he would accompany them personally to the police station. The accused refused to surrender or to release the hostages. Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the negotiations. In her dialogue with the accused, which lasted for about four hours, Appellant demanded P100,000.00, a coaster, and some raincoats. She offered them P50,000.00 instead, explaining the difficulty of raising more as it was a Saturday. Later, the accused agreed to receive the same and to release Rodita to be accompanied by Mary Choco in going out of the office. When they were out of the door, one of the accused whose face was covered by a handkerchief, gave a key to Mayor Caram. With this, Mayor Caram unlocked the padlocked door and handed to Rodita the P50,000.00, which the latter, in turn, gave to one of the accused. Rodita was later set free but Mary was herded back to the office. Mayor Caram, Major Sequio and even volunteer radio newscasters continued to appeal to the accused to surrender peacefully but they refused. UItimatums were given but the accused did not budge. Finally, the police and military authorities decided to launch an offensive and assault the place. This resulted in injuries to the girls, Mimie and Mary Choco as well as to the accused Ronaldo and Reynaldo Canasares. Mary suffered a "macerated right lower extremity just below the knee" so that her right leg had to be amputated. The medical certificate described her condition as "in a state of hemorrhagic shock when she was brought in to the hospital and had to undergo several major operations during the course of her confinement from April 13, 1986 to May 30, 1986." For his part, Appellant Salvilla confirmed that at about noon time of 12 April 1986 he and his co-accused entered the lumber yard and demanded money from the owner Severino Choco He demanded P100,000.00 but was given only P5,000.00, which he placed on the counter of the office of the lumber yard. He admitted that he and his co-accused kept Severino, his daughters, and Rodita inside the office. He maintained, however, that he stopped his co-accused from getting the wallet and wristwatch of Severino and, like the P5,000.00 were all left on the counter, and were never touched by them. He claimed

further that they had never fired on the military because they intended to surrender. Appellant's version also was that during the gunfire, Severino's daughter stood up and went outside; he wanted to stop her but he himself was hit by a bullet and could not prevent her. Appellant also admitted the appeals directed to them to surrender but that they gave themselves up only much later. After trial, the Court a quo meted out a judgment of conviction and sentenced each of the accused "to suffer the penalty ofreclusion perpetua, with the accessory penalties provided by law and to pay the costs." Appellant Salvilla's present appeal is predicated on the following Assignments of Error: 1. The lower court erred in holding that the crime charged was consummated and in not holding that the same was merely attempted. 2. The lower court erred in not appreciating the mitigating circumstance of voluntary surrender." Upon the facts and the evidence, we affirm. The defense contends that "The complete crime of larceny (theft/robbery) as distinguished from an attempt requires asportation or carrying away, in addition to the taking, In other words, the crime of robbery/theft has three consecutive stages: 1) the giving 2) the taking and 3) the carrying away or asportation And without asportation the crime committed is only attempted" (Memorandum for Appellant Salvilla, Records, p. 317). There is no question that in robbery, it is required that there be a taking of personal property belonging to another. This is known as the element of asportation the essence of which is the taking of a thing out of the possession of the owner without his privity and consent and without the animus revertendi (Aquino, Revised Penal Code, p. 97, citing 5 C.J. 607). In fact, if there is no actual taking, there can be no robbery. Unlawful taking of personal property of another is an essential part of the crime of robbery. Appellant insists that while the "giving" has been proven, the "taking" has not. And this is because neither he nor his three coaccused touched the P5,000.00 given by Severino nor the latter's wallet or watch during the entire incident; proof of which is that none of those items were recovered from their persons. Those factual allegations are contradicted by the evidence. Rodita, the lumberyard employee, testified that upon demand by Appellant, Severino put P20,000.00 inside a paper bag and subsequently handed it to Appellant. In turn, accused Simplicio Canasares took the wallet and wristwatch of Severino. In respect of the P50,000.00 from Mayor Caram, Rodita declared that the Mayor handed the amount to her after she (the Mayor) had opened the padlocked door and that she thereafter gave the amount to one of the holduppers. The "taking" was, therefore, sufficiently proved (TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The money demanded, and the wallet and wristwatch were within the dominion and control of the Appellant and his coaccused and completed the taking. The State established a "taking" sufficient to support a conviction of robbery even though the perpetrators were interrupted by police and so did not pick up the money offered by the victim , where the defendant and an accomplice, armed with a knife and a club respectively, had demanded the money from the female clerk of a convenience store, and the clerk had complied with their instructions and placed money from the register in a paper bag and then placed the bag on the counter in front of the two men; these actions brought the money within the dominion and control of defendant and completed the taking . (Johnson vs. State, 432 So 2d 758). "Severance of the goods from the possession of the owner and absolute control of the property by the taker, even for an instant, constitutes asportation (Adams vs. Commonwealth, 154 SW 381; State vs. Murray, 280 SW 2d 809; Mason vs. Commonwealth, 105 SE 2d 149) [Emphasis supplied]. It is no defense either that Appellant and his co-accused had no opportunity to dispose of the personalities taken. That fact does not affect the nature of the crime, From the moment the offender gained possession of the thing, even if the culprit had no opportunity to dispose of the same, the unlawful taking is complete (Reyes, Revised Penal Code Annotated, Book II, 1981 ed., p. 594). The crime is consummated when the robber acquires possession of the property, even if for a short time, and it is not necessary that the property be taken into the hands of the robber, or that he should have actually carried the property away, out of the physical presence of the lawful possessor, or that he should have made his escape with it" (People vs. Quinn, 176 P 2d 404; Woods vs. State, 220 SW 2d 644; People vs. Beal, 39 P 2d 504; People vs. Clark, 160 P 2d 553). Contrary to Appellant's submission, therefore, a conviction for consummated and not merely attempted Robbery is in order.

It is the contention of Appellant that Rodita could not have seen the taking because the place was dark since the doors were closed and there were no windows. It will be recalled, however, that Rodita was one of the hostages herself and could observe the unfolding of events. Her failure to mention the taking in her sworn statement would not militate against her credibility, it being settled that an affidavit is almost always incomplete and inaccurate and does not disclose the complete facts for want of inquiries or suggestions (People vs. Andaya, G.R. No. L-63862, 31 July 1987, 152 SCRA 570; People vs. Tan, et al., 89 Phil. 337 [1951]). The fact, too, that Rodita was an employee of Severino would not lessen her credibility. The defense has not proven that she was actuated by any improper motive in testifying against the accused. In the last analysis, the basic consideration centers around the credibility of witnesses in respect of which the findings of the Trial Court are entitled to great weight as it was in a superior position to assess the same in the course of the trial ( seePeople vs. Ornoza G.R. No. L-56283, 30 June 1987, 151 SCRA 495; People vs. Alcantara, G.R. No. L-38042, 30 June 1987, 151 SCRA 326). Anent the second assignment of error, the "surrender" of the Appellant and his co-accused cannot be considered in their favor to mitigate their liability. To be mitigating, a surrender must have the following requisites: (a) that the offender had not been actually arrested; (b) that the offender surrendered himself to a person in authority or to his agent; and (c) that the surrender was voluntary (People vs. Canamo, G.R. No. L-62043, 13 August 1985, 138 SCRA 141). The "surrender" by the Appellant and his co-accused hardly meets these requirements. They were, indeed, asked to surrender by the police and military authorities but they refused until only much later when they could no longer do otherwise by force of circumstances when they knew they were completely surrounded and there was no chance of escape. The surrender of the accused was held not to be mitigating as when he gave up only after he was surrounded by the constabulary and police forces (People vs. Sigayan et al., G.R. Nos. L-18523-26, 30 April 1966, 16 SCRA 839; People vs. Mationg G.R. No. L-33488, 29 March 1982, 113 SCRA 167). Their surrender was not spontaneous as it was motivated more by an intent to insure their safety. And while it is claimed that they intended to surrender, the fact is that they did not despite several opportunities to do so. There is no voluntary surrender to speak of (People vs. Dimdiman 106 Phil. 391 [1959]). All told, the assigned errors remain unsubstantiated and we find the guilt of the accused-appellant, Bienvenido Salvilla, established beyond reasonable doubt. Although unassigned as an error, we deem it necessary to turn now to the nature of the linked offenses involved and the penalty imposed by the Trial Court. Appellant and his co-accused were charged in the Information with "Robbery with Serious Physical Injuries and Serious Illegal Detention ("Art. 295, par. 3, in conjunction with Art. 267, RPC )and sentenced to reclusion perpetua. We agree with the Trial Court that a complex crime under Article 48 of the Revised Penal Code has been committed such that the penalty for the more serious offense of Serious Illegal Detention (Art. 267, Revised Penal Code), or " reclusion perpetua to death," is to be imposed instead of the penalty prescribed for Robbery with Serious Physical Injuries (Art. 294 (3), which isreclusion temporal. Under Article 48, a complex crime arises "when an offense is a necessary means for committing the other." The term "necessary means" does not connote indispensable means for if it did then the offense as a "necessary means" to commit another would be an indispensable element of the latter and would be an ingredient thereof. The phrase "necessary means" merely signifies that one crime is committed to facilitate and insure the commission of the other (Aquino, Revised Penal Code, Vol. I, 1987 ed., p. 624, citing Dissent, Montemayor, J., Amado Hernandez, 99 Phil. 515). In this case, the crime of Serious Illegal Detention was such a "necessary means" as it was selected by Appellant and his co-accused to facilitate and carry out more effectively their evil design to stage a robbery. The facts of this case differ from those in People vs. Astor, et al. (G.R. Nos. L-71765-66, 29 April 1987, 149 SCRA 325) where the accused were convicted of Robbery but acquitted in the case for Serious Illegal Detention and where it was held that "the detention is absorbed in the crime of robbery." For one, in Astor, there were two (2) separate Informations filed, one for Robbery and another for Serious Illegal Detention. In the present case, only one Information was filed charging the complex offense. For another, in Astor, the robbery had already been consummated and the detention was merely to forestall the capture of the robbers by the police. Not so in this case, where the detention was availed of as a means of insuring the consummation of the robbery. Further, in Astor, the detention was only incidental to the main crime of robbery so that it was held therein: . . . were appellants themselves not trapped by the early arrival of the police at the scene of the crime, they would have not anymore detained the people inside since they have already completed their job. Obviously, appellants were left with no choice but to resort to detention of these people as security, until arrangements for their safe passage were made. This is not the crime of illegal detention punishable under the penal laws but an act of restraint in order to delay the pursuit of the criminals by peace officers (People v. Sol, 9 Phil. 265; People v. Uday 55 Phil. 167, cited in the Revised Penal Code, Aquino, Vol. 3, 1976 ed., p. 1337). Where the victims in a robbery case were detained in the course of robbery, the detention is absorbed by the crime of robbery (P. v. Baysa, 92 Phil. 1008, id.). In the case at bar, the detention was only incidental to the

main crime of robbery, and although in the course thereof women and children were also held, that threats to kill were made, the act should not be considered as a separate offense. Appellants should only be held guilty of robbery. In contract, the detention in the case at bar was not only incidental to the robbery but was a necessary means to commit the same. After the amount of P20,000.00 was handed to Appellant, the latter and his co-accused still refused to leave. The victims were then taken as hostages and the demand to produce an additional P100,000.00 was made as a prerequisite for their release. The detention was not because the accused were trapped by the police nor were the victims held as security against the latter. The detention was not merely a matter of restraint to enable the malefactors to escape, but deliberate as a means of extortion for an additional amount. The police and other authorities arrived only much later after several hours of detention had already passed. And, despite appeals to appellant and his co-accused to surrender, they adamantly refused until the amount of P100,000.00 they demanded could be turned over to them. They even considered P50,000.00, the amount being handed to them, as inadequate. The foregoing features also distinguish this case from those of U.S. v. Sol, 9 Phil. 265 [1907] where the restraint was for no other purpose than to prevent the victims from reporting the crime to the authorities; from People v. Gamboa, 92 Phil. 1085 [1953] where the victims were taken to a place one kilometer away and shot in order to liquidate the witnesses to the robbery; from People v. Baysa, 92 Phil. 1008 [1953]; People v. Manzanilla, 43 Phil. 167 [1922], all of which cases were cited in Astor and where the victims were only incidentally detained so that the detention was deemed absorbed in robbery. In other words, unlike in the above cases, the elements of the offense of Serious Illegal Detention are present in this case. The victims were illegally deprived of their liberty. Two females (Mary and Minnie) and a minor (Minnie), a specified circumstance in Article 267 (3), were among those detained. The continuing detention was also for the purpose of extorting ransom, another listed circumstance in Article 267 (last parag.) not only from the detained persons themselves but even from the authorities who arrived to rescue them. It follows then that as the detention in this case was not merely incidental to the robbery but a necessary means employed to facilitate it, the penalty imposed by the Trial Court is proper. WHEREFORE, the judgment appealed from is hereby AFFIRMED. Proportionate costs. SO ORDERED.

V. Murder G.R. NO. 157057 June 26, 2007 Y LAZARO, Petitioner,

LEONIDAS EPIFANIO vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court assailing the Decision1dated May 22, 2002 of the Court of Appeals (CA) in CA-G.R. CR No. 17995 which affirmed the Decision 2 dated July 5, 1994 of the Regional Trial Court, Branch 4, Panabo, Davao (RTC) in Criminal Case No. 91-15 finding Leonidas Epifanio y Lazaro (petitioner) guilty of Frustrated Murder, and the CA Resolution 3 dated January 14, 2003 which denied petitioner's Motion for Reconsideration. The facts of the case, as found by the RTC and the CA, are as follows: At around 9:00 o'clock in the evening of August 15, 1990, Crisaldo Alberto (Crisaldo) and his cousin, Allan Perez (Allan), were walking to their respective homes in Kilometer 7, Del Monte, Samal, Davao after spending time at the house of Crisaldo's father. Since the pavement going to Crisaldo's house followed a narrow pathway along the local shrubs called banganga, Allan walked ahead of Crisaldo at a distance of about three (3) meters.4 Suddenly, Crisaldo felt the piercing thrust of a bladed weapon on his back, which caused him to cry out in pain. He made a quick turnaround and saw his attacker, petitioner, also known as "Iyo (Uncle) Kingkoy." Petitioner stabbed Crisaldo again but only hit the latter's left arm.5 When Allan heard Crisaldo's outcry, he rushed to Crisaldo's side and said, "Iyo Kingkoy (Uncle Kingkoy), why did you stab Saldo?" which caused petitioner to run away.6 Allan then brought Crisaldo to his father's house where Crisaldo's wounds were

wrapped in a blanket. Crisaldo was then brought to the Peaplata Hospital where he was given first aid and then transferred to the Davao Medical Center where he stayed for three weeks to recuperate from his wounds. 7 The attending physician, Santiago Aquino, issued a Medical Certificate dated September 4, 1990, with the following findings: 1. Stab wound (R) scapular area (Medial border) at level 5-7th ICS (L) arm Medial aspect M3rd 2. Fracture 7th and 8th rib, posterior, right. Probable healing time will be 15-30 days barring complication.8 Subsequently, petitioner was charged with Frustrated Murder in Criminal Case No. 91-15. The Information dated January 4, 1991 reads: That on or about August 15, 1990, in the Municipality of Samal, Province of Davao, Philippines, and within the jurisdiction of the Honorable Court, the above-named accused, with treachery and evident premeditation, with intent to kill, armed with a knife, did then and there willfully, unlawfully, and feloniously attack, assault and stab one Crisaldo Alberto, thereby inflicting upon him wounds which ordinarily would have caused his death, thus the accused performed all the acts of execution which would produce the crime of murder, as a consequence but which, nevertheless, did not produce it by reason of some causes independent of the will of the accused, that is, by the timely and able medical assistance rendered to said Crisaldo Alberto, and further causing actual, moral and compensatory damages to the offended party. Contrary to law.9 During his arraignment on June 25, 1991, petitioner, with the assistance of counsel, pleaded "not guilty."10 Petitioner's defense consisted mainly of denial. He claims that at 7:00 o'clock in the morning of August 15, 1990, he went to Anonang, within the Municipality of Kaputian, and harvested coconuts by climbing the coconut trees; that he went back home at 4:30 in the afternoon and he slept at 8:00 o'clock in the evening; that while he was sleeping, his wife awakened him because Salvador Epifanio (Salvador) was asking for help, as somebody was hacked, and he went to the place of incident with Salvador; that he found out that Crisaldo was already wrapped in cloth and he asked Crisaldo who was responsible for stabbing him, but he did not answer; that they loaded Crisaldo in the jeep to take him to the nearby hospital; that he and Salvador took a ride with Crisaldo up to Del Monte where the two of them alighted and reported the incident to the barangay captain; that the following morning, he went to Anonang to harvest coconuts; that at around 1:00 o'clock in the afternoon when he arrived home, policemen Barraga and Labrador were in his house and told him that he was the suspect in the stabbing incident; that he was detained but he was not investigated anymore and was ordered to go home.11 On July 5, 1994, the RTC rendered its Decision12 convicting the petitioner, the dispositive portion of which reads: IN THE LIGHT OF THE FOREGOING, finding the accused, Leonidas Epifanio y Lazaro guilty beyond reasonable doubt of the crime of Frustrated Murder punishable under Article 248 in relation to Article 6 of the Revised Penal Code, the Court hereby sentence this accused to an indeterminate imprisonment of SIX (6) YEARS and ONE (1) DAY of prision mayor as minimum to TEN (10) YEARS of prision mayor as maximum together with the accessory penalties provided by law, and to pay the costs. Accused is hereby ordered to indemnify Crisaldo Alberto the sum of P6,000.00 by way of damages. SO ORDERED.13 Petitioner appealed his conviction to the CA, docketed as CA-G.R. CR No. 17995. 14 On May 22, 2002, the CA rendered a Decision15 affirming in toto the Decision of the RTC. Petitioner filed a Motion for Reconsideration16 but it was denied by the CA in a Resolution17 dated January 14, 2003. Petitioner filed the present petition raising a sole issue for resolution, to wit: WHETHER THE GUILT OF THE PETITIONER FOR THE CRIME OF FRUSTRATED MURDER WAS PROVEN BEYOND REASONABLE DOUBT.18 Petitioner does not seek the reversal of his conviction but only that it be for the lesser offense of attempted murder. He contends that there is no evidence that the injuries sustained by Crisaldo were life-threatening or would have caused his death had it not been for timely medical intervention since the medical certificate only stated that the healing time of the wounds sustained by Crisaldo was "15-30 days barring complication", with no notation or testimony of the attending physician that any of the injuries was life-threatening.

The Office of the Solicitor General (OSG), on the other hand, contends that the failure to present the doctor to testify on the nature of the wounds suffered by Crisaldo was not raised as an issue in the RTC; that petitioner is now barred from raising it in the present petition for review without offending the basic rules of fair play, justice and due process; that petitioner did not object to the admissibility of the medical certificate when it was offered in evidence; that the crime is frustrated murder since petitioner performed "all the acts of execution"; that the three-week length of stay in the hospital of Crisaldo is not determinative of whether or not the wounds are fatal. The petition is impressed with merit. The non-presentation of the doctor to testify on the nature of the wounds, while not raised as an issue in the RTC, does not bar the petitioner from raising it on appeal. It is a well-settled rule that an appeal in a criminal case throws the whole case wide open for review and the reviewing tribunal can correct errors, though unassigned in the appealed judgment, or even reverse the trial courts decision on the basis of grounds other than those that the parties raised as errors.19 It must be stressed that it is not the gravity of the wounds alone which determines whether a felony is attempted or frustrated, but whether the assailant had passed the subjective phase in the commission of the offense. In the leading case of United States v. Eduave,20 Justice Moreland, speaking for the Court, distinguished an attempted from a frustrated felony. He said that to be an attempted crime, the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all the acts which should produce the crime as a consequence, which act it is his intention to perform.21 The subjective phase in the commission of a crime is that portion of the acts constituting the crime included between the act which begins the commission of the crime and the last act performed by the offender which, with prior acts, should result in the consummated crime. Thereafter, the phase is objective.22 In case of an attempted crime, the offender never passes the subjective phase in the commission of the crime. The offender does not arrive at the point of performing all of the acts of execution which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance.23 On the other hand, a crime is frustrated when the offender has performed all the acts of execution which should result in the consummation of the crime. The offender has passed the subjective phase in the commission of the crime. Subjectively, the crime is complete. Nothing interrupted the offender while passing through the subjective phase. He did all that was necessary to consummate the crime; however, the crime is not consummated by reason of the intervention of causes independent of the will of the offender.24 In homicide cases, the offender is said to have performed all the acts of execution if the wound inflicted on the victim is mortal and could cause the death of the victim barring medical intervention or attendance. 25 If one inflicts physical injuries on another but the latter survives, the crime committed is either consummated physical injuries, if the offender had no intention to kill the victim; or frustrated or attempted homicide or frustrated murder or attempted murder if the offender intends to kill the victim.26 Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was committed; and (e) words uttered by the offender at the time the injuries were inflicted by him on the victim.27 In the present case, the intent to kill is very evident and was established beyond reasonable doubt through the unwavering testimony of Crisaldo on the manner of execution of the attack as well as the number of wounds he sustained. Crisaldo was stabbed from behind by petitioner. When Crisaldo turned around, petitioner continued his assault, hitting Crisaldo on the left arm as the latter tried to defend himself. The treacherous manner in which petitioner perpetrated the crime is shown not only by the sudden and unexpected attack upon the unsuspecting victim but also by the deliberate manner in which the assault was perpetrated.28 Nonetheless, petitioner failed to perform all the acts of execution, because Allan came to the aid of Crisaldo and petitioner was forced to scamper away. He did not voluntarily desist from stabbing Crisaldo, but he had to stop stabbing when Allan rushed to help Crisaldo and recognized petitioner. Thus, the subjective phase of the crime had not been completed. Moreover, the prosecution failed to present testimonial evidence on the nature of the wounds sustained by Crisaldo. The Court has discussed the importance of ascertaining the degree of injury sustained by a victim in People v. Matyaong,29thus: In considering the extent of injury done, account must be taken of the injury to the function of the various organs, and also the danger to life. A division into mortal and nonmortal wounds, if it could be made, would be very desirable; but the unexpected complications and the various extraneous causes which give gravity to the simplest cases, and, on the other hand, the favorable termination of some injuries apparently the most dangerous, render any such classification impracticable. The general classification into slight, severe, dangerous, and mortal wounds may be used, but the possibility of the slight wound

terminating with the loss of the persons life, and the apparently mortal ending with only a slight impairment of some function, must always be kept in mind. x x x The danger to life of any wound is dependent upon a number of factors: the extent of the injury, the form of the wound, the region of the body affected, the blood vessels, nerves, or organs involved, the entrance of disease-producing bacteria or other organisms into the wound, the age and constitution of the person injured, and the opportunities for administering proper surgical treatment. x x x30 No evidence in this case was introduced to prove that Crisaldo would have died from his wound without timely medical attendance. It is well-settled that where there is nothing in the evidence to show that the wound would be fatal if not medically attended to, the character of the wound is doubtful; hence, the doubt should be resolved in favor of the accused and the crime committed by him may be declared as attempted, not frustrated, murder.31 Accordingly, the imposable penalty for the crime of attempted murder, following Article 51 of the Revised Penal Code, is prision correccional in its maximum period to prision mayor in its medium period. Applying the Indeterminate Sentence Law, the minimum of the penalty to be imposed should be within the range of arresto mayor in its maximum period to prision correccional in its medium period, and the maximum of the penalty to be imposed should be within the range of prision correccional in its maximum period to prision mayor in its medium period. Since no generic aggravating or mitigating circumstance attended the commission of the crime of attempted murder, the penalty should be two (2) years and four (4) months of prision correccional, as minimum; and eight (8) years of prision mayor, as maximum. Anent the award of P6,000.00 as damages, the Court notes that the receipts showing the expenses incurred during Crisaldo's hospitalization amounted only to P853.50.32 As a general rule, a party seeking the award of actual damages must produce competent proof or the best evidence obtainable to justify such award.33 Only substantiated and proven expenses will be recognized in court. Nonetheless, in lieu of actual damages, the Court grants temperate damages ofP6,000.00, as it cannot be denied that Crisaldo incurred expenses during his three-week stay in the provincial hospital, although the exact amount cannot be proved with certainty.34 WHEREFORE, the Decision dated July 5, 1994 of the Regional Trial Court, Branch 4, Panabo, Davao in Criminal Case No. 91-15 is MODIFIED to the effect that petitioner is found GUILTY of ATTEMPTED MURDER and is sentenced to suffer an indeterminate imprisonment of 2 years and 4 months of prision correccional, as minimum, and 8 years of prision mayor, as maximum together with the accessory penalties provided by law; and petitioner is ordered to indemnify Crisaldo Alberto the sum of P6,000.00 as temperate damages, and costs. SO ORDERED. G.R. No. L-5848 April 30, 1954 THE PHILIPPINES, plaintiff-appellee,

THE PEOPLE OF vs. SY PIO, alias POLICARPIO DE LA CRUZ, defendant-appellant.

Exequiel Zaballero, Jr. for Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio Villamor for appellee. LABRADOR, J.:

appellant.

This is an appeal from a judgment of the Court of First Instance of Manila finding the defendant-appellant herein Sy Pio,alias Policarpio de la Cruz, guilty of frustrated murder against the person of Tan Siong Kiap, and sentencing him to suffer an indeterminate sentence of 6 years, 1 month, and 11 days of prision mayor, to 14 years, 8 months, and 1 day ofreclusion temporal, to indemnify the offended party Tan Siong Kiap in the sum of P350, without subsidiary imprisonment in case of insolvency, and to pay the costs. The case was appealed to the Court of Appeals, but that court certified it to this Court under the provisions of section 17 (4) of Republic Act No. 296, on the ground that the crime charged was committed on the same occasion that the defendant-appellant had committed crime of murder, with which the defendant-appellant was also charged. The evidence for the prosecution shows that early in the morning of September 3, 1949, the defendant-appellant entered the store at 511 Misericordia, Sta Cruz, Manila. Once inside he started firing a .45 caliber pistol that he had in his hand. The first one shot was Jose Sy. Tan Siong Kiap, who was in the store and saw the accused enter and afterwards fire a shot at Jose Sy, asked the defendant-appellant, "What is the idea?" Thereupon defendant-appellant turned around and fired at him also. The bullet fired from defendant-appellant's pistol entered the right shoulder of Tan Siong Kiap immediately ran to a room behind the store to hide. From there he still heard gunshot fired from defendant-appellant's pistol, but afterwards defendant-appellant ran away.

Tan Siong Kiap was brought to the Chinese General Hospital, where his wound was treated. He stayed there from September 3 to September 12, 1949, when he was released upon his request and against the physician's advice. He was asked to return to the hospital for further treatment, and he did so five times for a period of more than ten days. Thereafter his wound was completely healed. He spent the sum of P300 for hospital and doctor's fees. The defendant-appellant shot two other persons in the morning of September 3, 1949, before shooting and wounding Tan Siong Kiap; one was Ong Pian and the other Jose Sy. On September 5 information was received by the Manila Police Department that defendant-appellant was in custody of the Constabulary in Tarlac, so a captain of the Manila police by the name of Daniel V. Lomotan proceeded to Tarlac. There he saw the defendant-appellant and had a conversation with him. On this occasion defendant-appellant and had a conversation with him. On this occasion defendant-appellant admitted to Lomotan that his victims were Tan Siong Kiap, Ong Pian, and Jose Sy. The Constabulary in Tarlac also delivered to Lomotan the pistol used by the defendant-appellant, marked Exhibit C, and its magazine, Exhibit C-1, both of which the Constabulary had confiscated from the defendant-appellant. The defendant-appellant was thereupon delivered to the custody of Lomotan, and the latter brought him to Manila, where his statement was taken down in writing. This declaration was submitted at the time of the trial as Exhibit D, and it contains all the details of the assaults that defendant-appellant 3 against the persons of Tan Siong Kiap, Ong Pian, and Jose Sy. This written statement was taken down on a typewriter and afterwards signed by the defendant-appellant in both his Chinese and Filipino names, the latter being Policarpio de la Cruz. According to the declaration of the defendant-appellant, some months prior to September 3, 1949, he was employed as an attendant in a restaurant belonging to Ong Pian. Defendant-appellant's wife by the name of Vicenta was also employed by Ong Pian's partner, Eng Cheng Suy. Prior to September 3 the relatives of his wife had been asking the latter for help, because her father was sick. Defendant-appellant asked money from Ong Pian, but the latter could only give him P1. His wife was able to borrow P20 from her employer, and this was sent to his wife's parents in Cebu. Afterwards defendant-appellant was dismissed from his work at the restaurant of Ong Pian, and he became a peddler. Ong Pian presented a list of the sums that defendant-appellant had borrowed from him, and these sums were deducted from the salary of his wife. Defendant-appellant did not recognize these sums as his indebtedness, and so he resented Ong Pian's conduct. As to Tan Siong Kiap, the confession states that a few days before September 3, 1949, defendant-appellant had been able to realize the sum of P70 from the sales of medicine that he peddled. He laid his money in a place in his room, but the following morning he found that it had disappeared from the place in which he had placed it. Tan Siong Kiap and Jose Sy, upon the discovery of the loss of money, told defendant-appellant that he must have given the money to his wife, and that nobody had stolen it. After this incident of the loss, the defendant-appellant used to hear Tan Siong Kiap and Jose Sy and other Chinamen say that the money had not been actually stolen, but that he lost it in gambling. Because of these accusations against him, he nurtured resentment against both Tan Siong Kiap and Jose Sy. So early in the morning of September 3, while a Chinaman by the name of Ngo Cho, who the possessor of a caliber .45 pistol, was away from his room, defendant-appellant got his pistol and tucked it in his belt. With this pistol he went to the restaurant at 822 Ongpin, and there shot Ong Pian. After shooting him, he proceeded to 511 Misericordia, in store where Jose Sy and Tan Siong Kiap were, and there he fired at them. Then he escaped to Legarda Street, in Sampaloc, where he borrowed P1 from his relatives. From there he went to Malabon, to the house of his mother, to whom he told he had killed two persons and from he asked money. The foregoing is the substance of the written declaration made by the defendant-appellant in Exhibit D on September 6, 1949. At the time of the trial, however, he disowned the confession and explained that he signed it without having read its contents. He declared that it was not he who shot the three victims, but it was one by the name of Chua Tone, with whom he had previously connived to kill the three other victims. He introduced no witnesses, however, to support his denial. Neither did he deny that he admitted before Captain Lomotan having killed the three persons, or having been found in Tarlac in possession of the caliber .45 pistol, Exhibit C, and its magazine, Exhibit C-1. In his cross-examination he admitted many of the incidents mentioned in the confession, especially the cause of his resentment against his victims Ong Pian, Jose Sy, and Tan Siong Kiap. The trial court refused to believed his testimony, and therefore, found him guilty of the crime charged. On this appeal counsel for the defendant-appellant claims that the trial court erred in not finding that Tan Siong Kiap received the shot accidentally from the same bullet that had been fired at Jose Sy, and in finding that defendant-appellant has committed a crime distinct and separate from that of murder for the slaying of Jose Sy. We find no merit in this contention. According to the uncontradicted testimony of the offended party Tan Siong Kiap, when the latters saw defendant-appellant firing shots he asked him why he was doing so, and the defendant-appellant, instead of answering him, turned around and fired at him also. It is not true, therefore, that the shot which hit him was fired at Sy. It is also contended that the evidence is not sufficient to sustain the judgment of conviction. We also find no merit in this contention. The evidence submitted to prove the charge consists of: the uncontradicted testimony of the victim himself; the admissions made verbally by the defendant-appellant before Captain Lomotan in Tarlac; the fact that the defendant-appellant had escaped and was found in Tarlac; his possession of the .45 caliber pistol coupled with the fact, attested to by the testimony of the physician who examined and treated the wounds of Tan Siong Kiap, that the wounds found in his person must have been caused by the caliber .45 bullet; and, lastly, the confession of the defendant-appellant himself, Exhibit D, which he

was not able to impugn. As against this mass of evidence, defendant-appellant has only made a very unbelievable story that it was not he but another that had committed the crime charged. His admissions at the time of the trial regarding the incidents, as well as the cause of his having assaulted his victims, coincide exactly with the reasons given in his written confession. This shows that he had made the confession himself, for nobody but himself could have known the facts therein stated. The claim that the offense has not been proved beyond reasonable doubt must be dismissed. The defendant-appellant lastly claims that the lower court also erred in sentencing him to pay an indemnity of P350. The offended party testified that he actually spent P300 for hospital and doctor's fees, and that he was confined in the hospital for nine days. The above facts stand uncontradicted. This assignment of error must also be dismissed. It is lastly contended that the defendant-appellant should be found guilty only of less serious physical injuries instead of the crime of frustrated murder as defendant-appellant admitted in his confession in the open court that he had a grudge against the offended party, and that he connived with another to kill the latter. The intent to kill is also evident from his conduct in firing the shot directly at the body of the offended party. But while intent to kill is conclusively proved the wound inflicted was not necessarily fatal, because it did not touch any of the vital organs of the body. As a matter of fact, the medical certification issued by the physician who examined the wound of the offended party at the time he went to the hospital, states that the wound was to heal within a period of fourteen days, while the offended party actually stayed in the hospital for nine days and continued receiving treatment thereafter five time for the period of more than ten days, or a total of not more than thirty days. The question that needs to be determined, therefore, is: Did the defendant-appellant perform all the acts of execution necessary to produce the death of his victim? In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. Dagman, 47 Phil., 768 and People vs. Borinaga, 55 Phil., 433, this Court has held that it is not necessary that the accused actually commit all the acts of execution necessary to produce the death of his victim, but that it is sufficient that he believes that he has committed all said acts. In the case of People vs. Dagman, supra, the victim was first knocked down by a stone thrown at him, then attacked with a lance, and then wounded by bolos and clubs wielded by the accused, but the victim upon falling down feigned death, and the accused desisted from further continuing in the assault in the belief that their victim was dead. And in the case of People vs.Borinaga, supra, the accused stabbed his intended victim, but the knife with which he committed the aggression instead of hitting the body of the victim, lodged in the back of the chair in which he was seated, although the accused believed that he had already harmed him. In both these cases this Court held that of the crime committed was that of frustrated murder, because the subjective phase of the acts necessary to commit the offense had already passed; there was full and complete belief on the part of the assailant that he had committed all the acts of execution necessary to produce the death of the intended victim. In the case at bar, however, the defendant-appellant fired at his victim, and the latter was hit, but he was able to escape and hide in another room. The fact that he was able to escape, which appellant must have seen, must have produced in the mind of the defendant-appellant that he was not able to his his victim at a vital part of the body. In other words, the defendantappellant knew that he had not actually all the acts of execution necessary to kill his victim. Under these circumstances, it can not be said that the subjective phase of the acts of execution had been completed. And as it does not appear that the defendant-appellant continued in the pursuit, and as a matter of fact, he ran away afterwards a reasonable doubt exist in our mind that the defendant-appellant had actually believed that he has committed all the acts of execution or passed the subjective phase of the said acts. This doubt must be resolved in favor of the defendant-appellant. We are, therefore, not prepared to find the defendant-appellant guilty of frustrated murder, as charged in the information. We only find him guilty of attempted murder, because he did not perform all the acts of execution, actual and subjective, in order that the purpose and intention that he had to kill his victim might be carried out. Therefore, the judgment appealed from should be, as it is hereby, modified and the defendant-appellant is found guilty of the crime of attempted murder, and the sentence imposed upon him reduced to an indeterminate penalty of from 4 years, 2 months, and 1 day of prision correccional to 10 years of prision mayor. In all other respects the judgment is affirmed. With costs against the defendant-appellant. Paras, C.J., Pablo, Bengzon, Reyes, Jugo, Bautista Angelo, and Concepcion, JJ., concur. G.R. No. 78781-82 October 15, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO RAVELO, JERRY RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE AND HERMIE PAHIT, accused-appellants. The Solicitor General for plaintiff-appellee. Robert J. Landas for acussed-appellants.

GUTIERREZ, JR., J.:p The accused Pedro Ravelo, Bonifacio "Patyong" Padilla, Romeo Aspirin, Nicolas Guadalupe and Hermie Pahit appeal the two (2) judgments of the Regional Trial Court of Tandag, Surigao del Sur, Branch 27, which convicted them of murder of one Reynaldo Cabrera Gaurano and of frustrated murder of Joey Lugatiman. In the murder case (Criminal Case No. 1187), each of the accused was sentenced to serve the penalty of reclusion perpetua and to severally pay an indemnity of P25,000.00 to the mother of the victim. In the frustrated murder case (Criminal Case No. 1194), each of them was sentenced to serve the penalty of imprisonment ranging from eight (8) years and one (1) day of prision mayor as minimum to ten (10) years of prision mayor as maximum. The accused were all charged with kidnapping with murder and kidnapping with frustrated murder. However, the trial court found accused-appellants guilty only of murder and frustrated murder as convicted. The accused Josen Ravelo and Jerry Ravelo are still at large. The present petition was originally one that sought the issuance of a writ of habeas corpus. The Court instead resolved to treat it as an appeal in view of the near capital nature of the crimes for which the appellants were convicted. The accused-appellants are all membersof the Civilian Home Defense Force (CHDF) stationed at a checkpoint near the airport at Awasian in Mabua, Tandag,Surigao del Sur. The prosecution alleged that they stopped the two (2) victims for questioning on the suspicion that the latter were insurgents or members of the New People's Army. (NPA). In Criminal Case No. 1187, the accused-appellants were charged with having committed kidnapping with murder in the following manner: That at approximately 6:30 o'clock in the evening, May 21, 1984, in Barangay Dawis, San Agustin Sur, municipality of Tandag, province of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, PEDRO RAVELO, JERRY RAVELO, BONIFACIO `Patyong' PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE, HERMIE PAHIT and JOSEN RAVELO, conspiring, confederating, and mutually helping each other did, then and there, wilfully, unlawfully and feloniously take, pick-up, kidnap by meansof force, one REYNALDO CABRERA GAURANO, a minor, while the latter was walking along Tandag Bridge at barangay Dawis, San Agustin Sur, then the above-named accused carried away the said, Reynaldo Cabrera Gaurano to barangay Awasian and detained, kept and locked him in a room at the house of Pedro Ravelo, one of the accused herein, from 7:00 o'clock in the evening, May 21, 1984 to 4:00 o'clock dawn, May 22, 1984, or a period of 10 hours under restraint and against the will of said minor, Reynaldo Cabrera Gaurano and that the above named accused during the said period of kidnapping, maltreated and refused to release said Reynaldo Cabrera Gaurano, and while on the same period of time at about 4:00 o'clock dawn, May 22, 1984, at barangay Awasian, Tandag, Surigao del Sur and within the jurisdiction of this Honorable Court, the above-named accused, Pedro Ravelo, Jerry Ravelo, Bonifacio `Patyong' Padilla, Romeo Aspirin, Nicolas Guadalupe, Hermie Pahit, and Josen Ravelo, conspiring, confederating, and mutually helping each other, armed with a pistol, armalites, and carbines, with intent to kill, with treachery and evident premeditation did, then and there wilfully, unlawfully and feloniously, assault, attack, cut, slash, and burn, the said Reynaldo Cabrera Guarano, hitting and inflicting upon the latter, the following wounds or injuries: 1. Blisters formation noted all over the body reddish in color, which easily peel off on pressure; containing clear fluids; with hemorrhagic reaction beneath blisters; 2. Swollen face with contusion and hematoma formation; loosening of hair notes; right ear missing with circular incised wound around; 3. Incised wound 24 cm. length around the neck cutting the esophagus, pharynx, arteries and veins; up to the 2nd cervical bone in depth; 4. Contusions and hematomas noted anterior chest wall, abdomen and at the back; upper and lower extremeties of different sizes and forms. (Rollo, pp. 8-9) In Criminal Case No. 1194, they werecharged with kidnapping with frustrated murder committed as follows: That on or about 1:00 o'clock in the morning on May 22, 1984 in barangay Awasian, municipality of Tandag, province of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above named accused PEDRO RAVELO, HERMIE PAHIT, BONIFACIO PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE, JERRY RAVELO AND JOSEN RAVELO, conspiring, confederating and mutually aiding one another armed with the deadly weapons such as pistols, armalite and carbine, did then and there wilfully, unlawfully and feloniously by means of force and at gun point stop the hauler truck of the South Sea Merchant Company which was on the way to Tandag, Surigao del Sur from sitio Lumbayagan, Barangay

Maticdom, municipality of Tandag, Surigao del Sur and kidnap one JOEY LUGATIMAN, who is on board the said hauler truck by forcibly taking said Joey Lugatiman and carry him to the house of accused Pedro Ravelo then to the Airborne Headquarters at Mabua, Tandag, Surigao del Sur, and while thereat and in pursuance of their conspiracy, with intent to kill, with evident premeditation and treachery and by taking advantage of their superior strength being armed with deadly weapon did then and there wilfully, unlawfully and feloniously assault, by hitting and inflicting upon the latter the following wounds or injuries: 1. Small abrasion and hematoma, both wrist and left ankle; 2. Multiple small abrasions, chest and right neck and right ankle; 3. Multiple small abrasions and small hematoma, back; 4. Abrasion, upper left lips. (Rollo, pp.18-19) The trial court based its findings on evidence presented by the prosecution at the trial proper which commenced several months after the informations were filed. The prosecution evidence in Criminal Case No. 1187 are quoted from the judgment, thus: Witness Edilberto Salazar, 17 years old, student and resident of Tandag, testified that he knew all the accused Pedro Ravelo, Bonifacio Padilla, Romeo Aspirin, Nicolas Guadalupe and Hermie Pahit. On May 21, 1984 at 5:30 in the afternoon, he was with a certain Diego Gallardo and Reynaldo Cabrera Gaurano walking from Dawis to Dagocdoc to attend a dance. The dance not having began being too early yet, they decided to go back to Dawis. On their way back while crossing the Tandag bridge across the Tandag river, the accused Pedro Ravelo, Jerry Ravelo, Josen Ravelo, Bonifacio Padilla, Romeo Aspirin, Hermie Pahit and Nicolas Guadalupe stopped them by pointing their guns. He and Diego Gallardo ran away towards a group of old junk tractors and hid there. He saw Reynaldo Gaurano chased by all the accused. He saw Reynaldo Gaurano ran up to the house of a certain Fernando Cortes which was just opposite the tractors they were hiding, and which was just across the road in front of the house of Fernando Cortes. Reynaldo Gaurano was caught up in the house by Jerry Ravelo, Bonifacio Padilla and Nicolas Guadalupe. He saw Reynaldo Gaurano forced and dragged down to a waiting pick-up on the road by Jerry Ravelo, Bonifacio Padilla and Nicolas Guadalupe. Reynaldo Gaurano was loaded on the pick-up owned and driven by the accused Pedro Ravelo. All the accused, together with Reynaldo Gaurano rode on the pick-up towards the Tandag airport at Awasian. After Reynaldo Gaurano disappeared, he and Diego Gallardo went to the police and reported the matter that Reynaldo Gaurano was brought by the accused to the airport. On May 23, 1984, he was with the group who exhumed the body of Reynaldo Gaurano under a mango tree near the Tandag airport and pointed to the investigator that that was the body of Reynaldo Gaurano with blisters, without ear and a big wound on the neck. Placed on the mat the cadaver was brought to the Mata Funeral Parlor at Tandag, Surigao del Sur in that morning of May 23, 1984. Witness Francisco Villasis, 48 years old, farmer and resident of Awasian, testified that he knew very well all the accused and that he personally saw them in the early dawn of May 22, 1984. He declared that he was at the Awasian creek near a mango tree catching crabs with the use of a "panggal", a bamboo knitted trap. From a distance of around twenty meters away, he saw a man hanging from the mango tree over a fire. He saw the accused Jerry Ravelo placed fire on the hanging person and the accused Romeo Aspirin placed a burning torch made of dried coconut leaves at the back of the hanging person. The man hanging was not known to him. The man hanged was also surrounded by Pedro Ravelo, Josen Ravelo, Nicolas Guadalupe, Hermie Pahit and Bonifacio Padilla. For five minutes watching, he saw the clothing and body burned, he heard the moanings of the person and heard the laughters of the accused. After witnessing that horrible incident he went home hurriedly. On cross examination he further stated that he saw for the first time the man already hanging under a fire (sic). Witness Joey Lugatiman, 22 years old and resident of Dawis, Tandag, testifies that all the accused are known to him for a long time. On May 21, 1984, with ten companions they went to a place in the interior called Maticdum, Tandag, Surigao del Sur. After five hours stay, he, together with his companions left Maticdum past midnight for Tandag on a loggingtruck. As soon as they passed by the airport, they were stopped by the accused and were told to go down from the truck for questioning. He was brought to the house of the accused Pedro Ravelo near the checkpoint. He was asked if he was Joey Lugatiman and if he knew Reynaldo Gaurano. There at the headquarters, he was asked if he was an NPA. For almost an hour stay at the headquarters he was boxed, kicked and manhandled by Pedro Ravelo and by the other accused with the use of their guns until he became almost unconscious. Then, from the headquarters at Mabua on that early dawn he was brought again back in the same pick-up to Awasian airport, to the house of Pedro Ravelo and then to the house of Bonifacio Padilla. Before proceeding to the house of Bonifacio Padilla, he saw his friend Reynaldo Gaurano, one meter away, already weak with bruises on his face, hands tied at the back and with a gag around the mouth, moving as if in the act of trying to free himself, with a bleeding mouth. When he reached the house of Bonifacio Padilla, he was chained and tied to the wall near the window of the house. Alone, he peeped through the window and saw Reynaldo Gaurano hanging up the mango tree with fire below him. He heard the moanings of Reynaldo Gaurano while hanging from the mango tree thirty meters away from the window of the house of Bonifacio Padilla. He saw Pedro Ravelo and Josen Ravelo set fire on the body of Reynaldo Gaurano. At 5:00 o'clock a.m. May 22, 1984, when alone, after being told that he would be killed at 9:00 o'clock in the evening at the Awasian bridge, he escaped by being able to untie himself at 10:00 o'clock in the morning of May 22, 1984. He reported what happened to him and to Reynaldo Gaurano, to his parents and then to the police authorities and later submitted for physical examination on that

day, May 22, 1984 and finally was investigated on May 23, 1984 in connection with this case. On cross examination he said that he knew all the accused. He knew that all the accused are members of the CHDF. Witness Zosima Gaurano, 46 years old, market vendor, a native of Tandag, testified that she is the mother of Reynaldo Gaurano. Her son Reynaldo Gaurano left Cebu City on April 12, 1984 for Tandag. On May 22, 1984 she received a telegram from her sister Remedios Fernandez that her son Reynaldo is dead. She left for Tandag upon receipt of the telegram and arrived at Tandag on May 24, 1984. Upon her arrival she went to the Mata Funeral Parlor and then she found the dead body of her son Reynaldo Gaurano inside the coffin and she saw many parts of the body of her son with burns. She suffered moral damages and other expenses to the tune of P64,350.00. Witness Remedios Cabrera Fernandez, widow, meat vendor and resident of Tandag testified that Reynaldo Gaurano is her nephew because his mother Zosima is her younger sister. Her nephew Reynaldo Gaurano was here in Tandag on vacation. On May 20, 1984, with two companions, Diego Gallardo and Edilberto Salazar, he failed to go home to the house of her sister. After the second day, May 22, 1984 at around 5:00 o'clock in the afternoon Edilberto Salazar and Diego Gallardo informed her that Reynaldo Gaurano was kidnapped by Pedro Ravelo and his men. The message was relayed to her to Atty. Buenaflor and to Col. Jesus Hermosa. On the following day, May 23, 1984, Col. Hermosa, with other officers inspected the house of Pedro Ravelo and the nearby surroundings at Awasian. She was made to Identify an exhumed body at the back of the house of Pedro Ravelo near the Mango tree. She saw the dead body of her nephew Reynaldo Gaurano without an ear, the neck was almost cut, entire body with blisters, and naked. His body was pictured and later on brought to the Mata Funeral Parlor at Tandag. She requested Dr. Romeo delos Reyes of the Tandag Provincial Hospital to conduct an autopsy and after which the dead body of Reynaldo Gaurano was embalmed to await the arrival of the mother from Cebu City. Witness Dr. Romeo delos Reyes, a senior Resident physician of the Tandag Provincial Hospital testified that he conducted an autopsy on the dead body of a certain Reynaldo Gaurano, Exhibit "A", at the Mata Funeral Parlor. He found blisters formation caused by fire burns throughout; the body was reddish and skin peels off easily; swollen face, hematoma, contusion, losing of hair, wound around the neck; and these injuries could have been inflicted 36 to 48 hours before the autopsy. Death certificate, Exhibit "B" was issued. The burns and the injuries above stated were suffered before Reynaldo Gaurano died. Witness Roberto Awa, a photographer of the Similar Studio who, for fifteen years, is a photographer at Tandag, testified that he took the pictures of a dead man inside a hole upon orders of Col. Hermosa at Awasian near the airport. He took pictures as shown in Exhibit "C", "C-1"; he took 8 positions of the dead body. While yet inside the holeexhibit "D" and as shown in Exhibit "E" and "F", that was the dead body of Reynaldo Gaurano near the mango tree; Exhibit "G", while the cadaver was inside the hole and Exhibit "H" is the picture while the body was lying on the mat. Witness Cresenciano Rulona, Police Investigator of the Tandag Police Force, testified that at around 8:00 o'clock in the morning of May 23, 1984, he was the assistant team leader of the group that proceeded to Tambacan, Awasian, Tandag to look for and inspect the place where a certain Reynaldo Gaurano was kidnapped. Under a mango tree and about 25 meters near the house of Bonifacio Padilla the group recovered a P.25 coin, a small comb, two zippers and burned pieces ofcloth and burned coconut leaves, together with new excavated soil. Further search under the mango tree led to the very place where the body of Reynaldo Gaurano was buried. At around 10:00 o'clock a.m., May 23, 1984, they exhumed the dead body which was buried under a depth of around one meter under the mango tree which was around 25 meters from the house of Bonifacio Padilla and around 150 meters from the house of Pedro Ravelo. The cadaver was first Identified to be that of Reynaldo Gaurano by Edilberto Salazar. A photographer was called and pictures were taken of the dead body of Reynaldo Gaurano from the hole and then the body was brought to the surface and placed on the mat. Not one of the accused was present during the period while the group was searching and exhuming the body of Reynaldo Gaurano. The body of Reynaldo Gaurano shows signs of burns and several injuries, and was finally brought to the funeral parlor at Tandag. As shown by the evidence, Reynaldo Cabrera Gaurano died on May 22, 1984 at Awasian, Tandag, Surigao del Sur. His death was the result of the shock secondary to the wound around the neck, Exhibit "A", and occurred while he was hanged by the accused with hands tied to a branch of a mango tree. Sufferings of pains, through his moanings, were augmented and aggravated by the tortures inflicted as vividly seen through the removal of the right ear, the wound around the neck and placing of fires on his body, and the fire below his feet. Not only were these acts brutal and cruel but also heartless and savage acts of the accused, devoid of an iota of sympathy, who, instead, were happy and delighted to see the miseries suffered by their victim. Further, it was shown that they helped one another or conspired with one another in torturing with the use of their firearms, and in killing Reynaldo Gaurano. (Rollo, pp. 10-16) Meanwhile, the prosecution evidence in Criminal Case No. 1194 are as follows: The evidence of the prosecution consisted of the testimonies of the witnesses and the Medical Certificate. Witness Joey Lugatiman, 22 years old, resident of Dawis, Tandag, Surigao del Sur testified that he personally knew all the accused for quite a long time. On May 21, 1984 with ten companions he went to a place called Maticdom, Tandag, Surigao del Sur. After staying at Maticdum for five hours he went home on board on a cargo truck. On the way near the Tandag Airport they were stopped by all the accused. They, including himself, were ordered by the accused Pedro Ravelo to come down from the truck. Then he was brought to the nearby house of Pedro Ravelo and there he was asked if he was Joey Lugatiman and if he knows Reynaldo Gaurano.

His companions were ordered to proceed to Tandag while he was loaded on a service pick up driven by the accused Pedro Ravelo. He was brought by all the accused to the Headquarters of the Airborne Company at Mabua, Tandag, Surigao del Sur. In the Headquarters of the Airborne, he was interrogated if he was an NPA. After hearing his denial of being an NPA he was boxed, kicked and pistol whipped by the accused Pedro Ravelo and his co-accused. He was manhandled by the accused with the use of the firearms for almost an hour. Later he was brought back again to Awasian Airport to the house of Pedro Ravell (should be Ravelo) then to the house of Bonifacio Padilla. But before proceeding to the house of Bonifacio Padilla, he saw his friend Reynaldo Gaurano one meter away, already weak with bruises on the face, hands, tied at the back and gagged around the mouth. Reynaldo Gaurano could not talk and he was moving in the act to free himself and with a bleeding mouth. Upon arriving in the house of Bonifacio Padilla he was chained and hogtied near the open window by the companions of Pedro Ravelo. Not long after, through the window, he saw Reynaldo Gaurano hanging up the mango tree and a big fire was set on the ground. He heard the groaning and moaning of Reynaldo Gaurano. He saw Pedro Ravelo and Jerry Ravelo setting fire on the right and left side of Reynaldo Gaurano with the use of dried coconut leaves. He saw all the accused surrounding and watching the hanging and burning of Reynaldo Gaurano. It was Pedro Ravelo who cut the right ear and who also slashed the neck of Reynaldo Gaurano. He could not shout because he was afraid. While lying down after he saw the horrible incident he fell asleep. At around 5:00 o'clock in the morning of May 22, 1984 he awoke and saw Bonifacio Padilla bringing nylon line with which he was tied to a piece of wood; while Nicolas Gaudalupe gagged him, and he was blind folded by Hermie Pahit. While the three were about to leave him behind, he heard them saying that they will kill him at the Awasian bridge at 9:00 o'clock in the evening of May 22, 1984. When he was left alone in that house he successfully freed himself. He jumped out of the window and escaped via the nipa palm grove. As consequences of the manhandling of the accused, he suffered several bruises on the breast, at the back and his mouth. He was physically examined by a doctor in the Provincial Hospital on that day, Exhibit "A", "A-1" and "A-2" which is Exhibit "1" and "2", "1-A", and "1-B" for the defense. On cross examination, he testified that he escaped at around 10:00 o'clock in the morning from the house of Bonifacio Padilla, and that he knew all the accused to be members of the Civilian Home Defense Force (CHDF). He testified that the house of Pedro Ravelo and the house of Bonifacio Padilla is around one hundred (100) meters away from each other. Witness Dr. Petronila Montero testified that she is a resident physician of the Provincial Hospital, and on May 22, 1984 she examined Joey Lugatiman and she issued a medical certificate, Exhibit "A". All her findings were placed down in Exhibit "A". Upon being cross-examined, she testified that the hematomas, small abrasions will not cause death. When she examined Joey Lugatiman, she found that he was weak and haggard caused by the injuries mentioned in Exhibit "A". Witness Emilio Espinoza, 68 years old, farmer, resident of Awasian, Tandag testified that while he was tendering his carabao near the house of Bonifacio Padilla he was surprised to see Joey Lugatiman, wearing blue t-shirt and a jogging pants jumped out of the window of the house of Bonifacio Padilla, twelve meters away from him. He saw Joey Lugatiman ran towards the nipa palm then ran towards the airport. He knew Joey Lugatiman because during the barrio fiesta Joey used to stay in his house at Awasian. Witness Bernardo Frias, 21 years old, farmer and resident of Awasian, testified that on May 22, 1984 he was in Maticdom together with Joey Lugatiman, Miguel, Gregorio Urbiztondo, Leonildo Naragas, Jesus Espinoza, Mauricio Estoya, the driver and a helper from 5:00 o'clock in the afternoon and started to go home at around 11:00 o'clock p.m. for Tandag. On the way, near the airport, he, together with his companions on a logging truck was stopped by the accused Pedro Ravelo, Jerry Ravelo, Josen Ravelo, Hermie Pahit, Bonifacio Padilla, Romeo Aspirin and Nicolas Guadalupe. They were ordered to come down and were made to identify each other. He saw Bonifacio Padilla dragged Joey Lugatiman to the house of Pedro Ravelo. It was Pedro Ravelo who later brought Joey Lugatiman to the pick-up. They were ordered to board on the truck except Joey Lugatiman who loaded in the pick-up driven by Pedro Ravelo. Then, the accused Bonifacio Padilla ordered the group to proceed to Tandag while Joey Lugatiman was left behind. He reported to the police authorities that his companion Joey Lugatiman was being held under arrest at Awasian and that he knows all the accused before this incident. (Rollo, pp. 21-24) The accused-appellants were not able to or did not present evidence on their behalf, nor were they themselves able to confront the prosecution witnesses who testified against them except through a counsel de oficio appointed by the trial judge to represent them namely, Atty. Pretextato Montenegro and Atty. Florito Cuartero, in place of their defense counsel, Atty. Eliseo Cruz. The continued absence of Atty. Cruz, a Quezon City-based lawyer who perennially made requests for postponements by telegrams stating his inability to appear for health reasons, led to the refusal by the accused-appellants to be present at the trial. The accused-appellants alleged that Atty. Cruz left an instruction that they will not submit themselves to trial without him. The accused-appellants now maintain that they did not "waive" their right to be present during the trial because their refusal was not done by their own free will but only in accordance with their lawyer's instructions. The Court notes that Atty. Cruz resorted to several other delaying tactics aside from sending telegraphic notes requesting for postponements. He filed a petition for change of place of detention and venue for trial before this Court, which denied it; a first petition for habeas corpus on the ground that they should be tried by a military tribunal, which petition was denied; and a motion for new trial on the ground of lack of due process due to improper waiver of presence at the trial. This motion for new trial was granted to give the accused-appellants a last chance to be heard and be present. Still, the defense counsel failed to appear and so did the appellants.

In their second petition for habeas corpus which we now treat as an appeal, Atty. Cruz failed to file the required brief. The Court then appointed a new counsel de oficio for the accused-appellants. Accused-appellants raised the following alleged errors of the trial court: I THE LOWER COURT'S FINDING THAT ACCUSED-APPELLANTS ARE GUILTY OF FRUSTRATED MURDER HAS NO BASIS IN FACT AND IN LAW. II THE LOWER COURT ERRED IN CONCLUDING THAT ACCUSED-APPELLANTS WAIVED THEIR RIGHTS TO BE PRESENT DURING THE TRIALS AND TO PRESENT EVIDENCE TO PROVE THEIR INNOCENCE (Brief for Appellants, pp. 10-11; Rollo, p. 144) It is contended that there can be no frustrated murder committed in Criminal Case No. 1194 absent any proof of intent to kill, which is an essential element of the offense of frustrated murder. Appellants aver that the trial court erroneously based its conclusion on the fact that when Lugatiman was tied and gagged, the latter heard one of the accused-appellants utter that they would kill him at Awasianbridge. The trial court made the following inference which we find to be erroneous: To this Court the real intention to kill Joey Lugatiman was made manifest at 5:00 in the morning of May 22, 1984 when the accused Bonifacio Padilla together with Hermie Pahit and Nicolas Guadalupe tied his hands to the wall with a nylon line and gagged him; and when the accused said they will kill him (Joey Lugatiman) at 9:00 o'clock p.m. at Awasian bridge. These final and parting words uttered to Joey Lugatiman eloquently expressed intent to kill. Killing, however, was not consummated because Joey Lugatiman was able to escape at around 10:00 o'clock in the morning of May 22, 1984. (Rollo, p. 25) The facts and evidence on record do not show anything from which intent to kill could be deduced to warrant a conviction for frustrated murder. A mere statement by the accused stating that Lugatiman would be killed is not sufficient proof of intent to kill to convict a person of frustrated murder. In a crime of murder or an attempt or frustration thereof, the offender must have the intent or the actual design to kill (US v. Burns, 41 Phil. 418 [1921]) which must be manifested by external acts. For there to be frustrated murder, the offender must perform all the acts of execution that would produce the felony as a consequence, but the felony is not thereby produced by reason of causes independent of the will of the perpetrator. A verbal expression that Lugatiman would be killed sixteen (16) hours after such statement was made is not sufficient to show an actual design to perpetrate the act. Intent must be shown not only by a statement by the aggressor of the purpose to kill, but also by the execution of all acts and the use of means necessary to deliver a fatal blow while the victim is not placed in a position to defend himself. However, after the performance of the last act necessary, or after the subjective phase of the criminal act was passed, the crime is not produced by reason of forces outside of the will of the aggressor. (People v. Borinaga, 55 Phil., 433 [1930]). Tying the victim's left leg with a chain on a 2" by 3" piece of wood and leaving him inside the house of accused-appellant, Bonifacio Padilla are not acts that would result in death. These were done only to restrain his liberty of movement for the period of time the accused-appellants were busy hanging and burning the body of Reynaldo Gaurano some thirty (30) meters away from where Lugatiman was left. Also, tying Lugatiman's hands behind his back and his whole body to the wall, and blindfolding him were for the purpose of restraining his liberty until the evening of May 22, 1984 came. Accused-appellants also maintain that the injuries sustained by Lugatiman from the manhandling at the Headquarters of the Airborne Company were not fatal as stated by the prosecution's expert witness, Dr. Petronila Montero; hence, there can be no frustrated murder. This is supported by the records (Exhibit "A-2", Records of Criminal Case No. 1194, p. 21; TSN, June 4, 1985, pp. 24-26) Lugatiman did not lose consciousness as a result of the blows he sustained (TSN, May 31, 1985, p. 49, Record, p. 115) It is worthy to note that the trial court, in concluding the existence of frustrated murder, did not even use as its basis, the manhandling of Lugatiman. The trial court in fact concedes that the real purpose of the manhandling or torture was to have Lugatiman admit and confess his being a member of the New People's Army (NPA) and the activities of the NPA's. It was the statement made by the accused-appellant NicolasGuadalupe that Lugatiman would later be killed, that was the basis of the court for inferring the commission of frustrated murder. According to the trial court, murder was not committed because of the timely escape. Escape from the aggressors cannot establish frustrated murder without first showing that the aggressors intended to kill and that they really attacked the victim.

Under the circumstances, accused-appellants could not even be convicted of an attempt to commit murder. There was no commencement of the criminal act by over acts which have a direct connection with the crime of murder intended to be committed. As stated earlier the manhandling, express statement of purpose, and the restraint of liberty were not such as to put the victim in danger of an imminent death. The small abrasions and hematomas of the victim resulting from the torture by the accused were not mortal. After the victim was restrained of his liberty immediately before Gaurano was killed, he was able to watch how Gaurano was burned hanging upside down from a mango tree near the Awasian bridge. Due to his fatigue and extreme weakness, he was even able to lie down and sleep after looking at the horrible incident. (TSN, May 31, 1985, pp. 2223) During the long period of time Lugatiman was informed that "he would be killed" and was left behind (5:00 in the morning) until he was able to escape at 10:00 in the morning, it was not certain whether or not appellants would really kill him as they did to Gaurano. Anything could have happened in between. There was no distinct evidence to prove that the accused appellants were really decided on killing him at the time specified. The records show that Lugatiman himself was not sure that the accused-appellants would pursue it. The uncertainty can be seen from Lugatiman's testimony on cross-examination, thus: xxx xxx xxx Q. Why did you say a while ago that "I will be the next one to be hung and to be killed by Ravelo and his group"? A. I was just afraid that I will be the next. Q. Now, when you saw these persons burning the body of Reynaldo, did you hear also what the people around Reynaldo were talking of? A. What I heard was their laughing and the moaning. Q. And you heard their laughing? A. Yes. Q. Why did you know that they were laughing? A. Because I heard it. Q. Their appearance you can see? A. Their appearance is clear because there is a big light. Q. And your name was never mentioned that you will be the next to be hung? A. I did not hear them saying. Q. There were also no other people like you who were apprehended or being detained by Pedro Ravelo and his group? A. I did not see. Q. You only saw Reynaldo Gaurano, including yourself detained by Ravelo and his group on May 21, in the early morning rather, on May 22, 1984 dawn? A. Yes. (TSN, May 31, 1985, pp. 54-55) After a review of the allegations of the information in Criminal Case No. 1194 and the evidence received and admitted by the court a quo, the Court is of the view that accused-appellants are not guilty of frustrated murder but only the crime of slight physical injuries. There is evidence to show that the several small abrasions on the chest, right neck and right ankle of Lugatiman as well as the hematoma at his back was due to the hitting by a rough, hard object like a butt of a gun. The prosecution witness, Dr. Montero testified that the injuries were inflicted by some other persons aside from the victim, and needed medical treatment of four (4) to five (5) days to avoid infection. (TSN, June 4, 1985, pp. 21-26)

Accused-appellants aver that there was no deliberate waiver on their part of their right to be present at the scheduled hearing dates because they "did not appear to know the import of their decision not to appear in the trials." According to them, the judge should have explained to them the meaning and the consequences of their decision not to appear. The issue of due process had been fully considered by this Court when we acted on the habeas corpus petition. In our May 8, 1988 resolution, we outlined in detail the reasons for our finding of dilatory tactics on the part of the petitioners and their counsel and why the lower court correctly proceeded with trial. After stating the various incidents characterizing the initial proceedings and the trial of the case, we stated: xxx xxx xxx The petitioners are members of the Civilian Home Defense Force (CHDF) who have been convicted of murder and frustrated murder committed under particularly brutal circumstances. A notice of appeal was filed thirty-nine (39) days from the promulgation of judgment and was clearly out of time. A motion for new trial was also characterized by plainly dilatory tactics in its handling. Were it not for the effectivity of the present Constitution, there is a likelihood that the petitioners would have been sentenced to capital punishment. The near-capital nature of the crimes for which the petitioners were convicted and the rather unusual circumstances surrounding the trial of the two cases and the failure to appeal, however, call for a closer look at the judgments of conviction. This can best be done by calling for all the records of the case including the transcripts of stenographic notes. If, after the consideration of the cases as appealed cases, there appears to have been a miscarriage of justice or a need for further evidence, the case can always be remanded for further proceedings as instructed. Otherwise, the judgment will have to be affirmed or reversed on the basis of all the present records. (Rollo, p. 73) For purposes of this decision, we emphasize that in the morning of May 30, 1985, the date of the first day of the trial proper, or after five (5) postponements, the accused-appellants came to court without their counsel of record, Atty. Eliseo Cruz. Atty. Cruz allegedly sent a telegram through one Mrs. Delfina Cruz indicating that he met a vehicular accident and requesting a resetting of the hearing date. The several instances in which the Court received similar telegrams including one where he claimed a "very sick heart ailment" led the trial court to doubt and disregard the last request of the defense. The court had earlier categorically stated that it wouldentertain no further requests for postponement. The court, in deciding to push through with the trial at 2:00 in the afternoon of May 30, 1988 and in appointing two (2) counsels de oficio for the accused-appellants did not only consider the right of the accused to speedy trial which should not be abused by the defense by willful delays, but more so, the rights of public justice. (Mercado v. Santos, 66 Phil. 215 [1938]). Despite their new counsels who appeared to be doing their best, the accused-appellants insisted on absenting themselves stating that they cannot and would not appear without Atty. Cruz and allegedly for fear that they would be harassed by members of the New People's Army. At this point, the Court informed them of (1) the importance of the appointment of competent counsels de oficio considering the gravity of the offense and the difficulty of the questions that may arise during the trial; and (2) the fact that there is no legal obstacle to proceeding with the reception of prosecution evidence in their absence. Absence at the trial did not deprive the accused-appellants of cross-examination except the right to personally confront the prosecution witnesses face to face. Notwithstanding their absence, they were represented by the counsels de oficio who took turns in cross-examining each of the prosecution witnesses. Accused-appellants also maintain that they did not actually refuse to present evidence on their behalf. They argued that the counsels de oficio misapprehended a telegram of Atty. Cruz which stated that he (Atty. Cruz) cannot attend the June 20 and 21, 1985 trial because he had a prior engagement in another court in Ilocos Sur on those dates. They also contend that their failure to appear and present evidence was "simply because of their misplaced trust and obedience to the instructions of their counsel, Atty. Eliseo Cruz, whose negligence and lack of vigilance in the handling of the cases, despite the seriousness of the crimes charged, had caused injustice to the accused-appellants." They ask this Court to take their case as an exception to the rule that a client shall suffer the consequences of negligence or incompetence of his counsel. The actual desire of the accused-appellants to testify and present other evidence is not manifest from a thorough review of the records of the case. If it were true that they wanted to present evidence, they should have taken advantage of the opportunity to be present, to be heard and to testify in open court with the assistance of their appointed lawyers. As a matter of fact, they were able to convince the lower court to grant them a chance to have a new trial. However, they still failed to make use of their last opportunity. They cannot now claim that they were denied their right to be present and to present evidence. This Court upholds the lower court's position that the accused-appellants were given more than generous time and opportunity to exercise their constitutional rights which should not be overemphasized at the expense of public policy. The circumstances of the case do not preclude the application of the rule that a client is bound by the acts of his counsel who represents him. Nevertheless, at the time when the lower court appointed the de oficio counsels, the court already had ample notice of the futility of waiting for Atty. Cruz to come and appear for the defense. From the time the accused-appellants were

represented by Atty. Montenegro and Atty. Cuartero, their decision not to attend the trial nor to present evidence is clearly a product of their own free will. WHEREFORE, the appealed judgments in Criminal Cases Nos. 1187 and 1194 are hereby, respectively, affirmed and modified as to the crime proven. The accused-appellants PEDRO RAVELO, BONIFACIO "PATYONG" PADILLA, ROMEO ASPIRIN, NICOLAS GUADALUPE and HERMIE PAHIT are hereby sentenced: (1) To serve the penalty of reclusion perpetua and to pay the increased indemnity of FIFTY THOUSAND PESOS (P50,000.00) in Criminal Case No. 1187 solidarily; and (2) To serve the penalty of arresto menor in Criminal Case No. 1194. SO ORDERED. VI. Homicide G.R. Nos. L-39303-39305 March 17, 1934

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffs-appellee, vs. FELIPE KALALO, ET AL., defendants. FELIPE KALALO, MARCELO KALALO, JUAN KALALO, and GREGORIO RAMOS, appellants. Meynardo M. Farol Acting Solicitor-General Pea for appellee. DIAZ, J.: On November 10, 1932, the herein appellants Felipe Kalalo, Marcelo Kalalo, Juan Kalalo, and Gregorio Ramos, were tried in the Court of First Instance of Batangas jointly with Alejandro Garcia, Fausta Abrenica and Alipia Abrenica in criminal cases Nos. 6858, 6859 and 6860, the first two for murder, and the last for frustrated murder. Upon agreement of the parties said three cases were tried together and after the presentation of their respective evidence, the said court acquitted Alejandro Garcia, Fausta Abrenica and Alipia Abrenica, and sentenced the appellants as follows: In case No. 6858, for the alleged murder of Marcelino Panaligan, to seventeen years, four months and one day of reclusion temporal, with the corresponding accessory penalties, and to indemnify the heirs of the said deceased Marcelino Panaligan in the sum of P1,000, with the costs. In case No. 6859, for the alleged murder of Arcadio Holgado, to seventeen years, four months and one day of reclusion temporal, with the corresponding accessory penalties, and to indemnify the heirs of the aforesaid victim, the deceased Arcadio Holgado, in the sum of P1,000, with the costs. In the third case, that is, No. 6860, wherein the court a quo held that the crime committed was simply that of discharge of firearm, not frustrated murder, the appellant Marcelo Kalalo was sentenced to one year, eight months and twenty-one days of prision correccional and to pay the proportionate part of the costs of the proceedings. Felipe Kalalo and Juan Kalalo, as well as their co-accused Fausta and Alipia Abrenica, Gregorio Ramos and Alejandro Garcia, were acquitted of the charges therein. The accused in the aforesaid three cases appealed from their respective sentences assigning six alleged errors as committed by the trial court, all of which may be discussed jointly in view of the fact that they raise only one question, to wit: whether or not said sentences are in accordance with law. A careful study and examination of the evidence presented disclose the following facts: Prior to October 1, 1932, the date of the commission of the three crimes alleged in the three informations which gave rise to the aforesaid three cases Nos. 6858, 6859 and 6860, the appellant Marcelo Kalalo or Calalo and Isabela Holgado or Olgado, the latter being the sister of the deceased Arcadio Holgado and a cousin of the other deceased Marcelino Panaligan, had a litigation over a parcel of land situated in the barrio of Calumpang of the municipality of San Luis, Province of Batangas. On September 28, 1931, and again on December 8th of the same year, Marcelo Kalalo filed a complaint against the said woman in the Court of First Instance of Batangas. By virtue of a motion filed by his opponent Isabela Holgado, his first complaint was dismissed on December 7, 1931, and his second complaint was likewise dismissed on February 5, 1932. Marcelo Kalalo cultivated the land in question during the agricultural years 1931 and 1932, but when harvest time came Isabela Holgado reaped all that had been planted thereon. and Feliciano Gomez for appellants.

On October 1, 1932, Isabela Holgado and her brother Arcadio Holgado, one of the deceased, decided to order the aforesaid land plowed, and employed several laborers for that purpose. These men, together with Arcadio Holgado, went to the said land early that day, but Marcelo Kalalo, who had been informed thereof, proceeded to the place accompanied by his brothers Felipe and Juan Kalalo, his brother-in-law Gregorio Ramos and by Alejandro Garcia, who were later followed by Fausta Abrenica and Alipia Abrenica, mother and aunt, respectively, of the first three. The first five were all armed with bolos. Upon their arrival at the said land, they ordered those who were plowing it by request of Isabela and Arcadio Holgado, to stop, which they did in view of the threatening attitude of those who gave them said order.1vvphi1.ne+ Shortly after nine o'clock on the morning of the same day, Isabela Holgado, Maria Gutierrez and Hilarion Holgado arrived at the place with food for the laborers. Before the men resumed their work, they were given their food and not long after they had finished eating, Marcelino Panaligan, cousin of said Isabela and Arcadio, likewise arrived. Having been informed of the cause of the suspension of the work, Marcelino Panaligan ordered said Arcadio and the other laborers to again hitch their respective carabaos to continue the work already began. At this juncture, the appellant Marcelo Kalalo approached Arcadio, while the appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos, in turn, approached Marcelino Panaligan. At a remark from Fausta Abrenica, mother of the Kalalos, about as follows, "what is detaining you?" they all simultaneously struck with their bolos, the appellant Marcelo Kalalo slashing Arcadio Holgado, while the appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos slashed Marcelino Panaligan, inflicting upon them the wounds enumerated and described in the medical certificates Exhibits I and H. Arcadio Holgado and Marcelino Panaligan died instantly from the wounds received by them in the presence of Isabela Holgado and Maria Gutierrez, not to mention the accused. The plowmen hired by Arcadio and Isabela all ran away. Arcadio Holgado's body bore the following six wounds, to wit: 1. A cut wound on the ulnar side of right arm near the wrist, cutting the ulnar bone completely and, the radius partially. 2. A cut wound on the anterior upper portion of the left arm measuring about 7 cm. long and 5 cm. wide extending to the bone and cutting the deltoid muscle across. 3. A penetrating wound on the left chest just below the clavicle going thru the first intercostal space measuring about 8 cm. long and 2 cm wide. 4. A wound on the left side of the back about 20 cm. long following the 10th intercostal space and injuring the lung, diaphragm, stomach and large intestine. 5. A small superficial cut wound about 2 cm. long and cm. wide situated on the inner side of the right scapula. 6. A superficial wound barely cutting the skin, about 4 cm. long in the lumbar region just to the right of the spinal column. (Exhibit I.) Marcelino Panaligan's body, in turn, bore the following fourteen wounds, to wit: 1. A penetrating cut wound in the epigastric region of the abdomen measuring about 7 cm. long and 3 cm. wide cutting the omentum and injuring the lower portion of the stomach and a portion of the transverse colon, but no actual perforation of either one of the two organs. 2. A cut wound on the head just above the forehead about 6 cm. long and 4 cm. wide lifting a portion of scalp as a flap. 3. A cut wound on the left side of the head measuring about 7 cm. long and 2 cm. wide. 4. A cut wound about 12 cm. long across the face just below the eyes extending from one cheek bone to the other, perforating the left antrum and cutting the nasal bone. 5. A cut wound on the anterior portion of the left forearm extending to the bone with a flap of skin and muscle which measures about 12 cm long and 6 cm. wide. 6. A cut wound across the dorsal side of the right hand about 5 cm. long and 2 cm. wide cutting the bones of the hand. 7. A superficial wound about 6 cm. long and 4 cm. wide and 2 cm. deep situated in the left axilla. 8. A cut wound about 6 cm. long and 2 cm. wide situated over the left scapula.

9. A cut wound on the right shoulder about 6 cm. long passing near the inner angle of the scapula cutting the muscles of the shoulder. 10. A cut wound about 7 cm. long and 3 cm. wide situated near and almost parallel to the inner border of the right scapula. 11. A wound on the back of the head, oval in shape, about 10 cm. long and 5 cm. wide from which a flap of scalp was removed. 12. A wound across the back and left side of the neck about 12 cm. long and 7 cm. deep cutting the vertebral column together with the great arteries and veins on the left side of the neck. 13. A wound about 15 cm. long and 4 cm. wide on the left side of the back. 14. A small wound on the left thumb from which a portion of the bone and other tissues were removed. (Exhibit H.) The above detailed description of the wounds just enumerated discloses and there is nothing of record to contradict it all of them were caused by a sharp instrument or instruments. After Arcadio Holgado and Marcelino Panaligan had fallen to the ground dead, the appellant Marcelo Kalalo took from its holster on the belt of Panaligans' body, the revolver which the deceased carried, and fired four shots at Hilarion Holgado who was then fleeing from the scene inorder to save his own life. The appellants attempted to prove that the fight, which resulted in the death of the two deceased, was provoked by Marcelino Panaligan who fired a shot at Marcelo Kalalo upon seeing the latter's determination to prevent Arcadio Holgado and his men from plowing the land in question. No such firing, however, can be taken into consideration, in the first place, because of the existence of competent evidence such as the testimony of Maria Gutierrez, who is a disinterested witness, which corroborates that of Isabela Holgado in all its details, showing that the said deceased was already lying prostrate and lifeless on the ground when the appellant Marcelo Kalalo approached him to take his revolver for the purpose of using it, as he in fact did, against Hilarion Holgado; in the second place, because the assault and aggression of the said appellant were not directed against said Marcelino Panaligan but exclusively against Arcadio Holgado, the evidence of record on this point being overwhelming, and if his claim were true, he naturally should have directed his attack at the person who openly made an attempt against his life; in the third place, because the evidence shows without question that Panaligan was an expert shot with a revolver, and among the eight wounds that the appellant Marcelo Kalalo received (Exhibit 3), not one appears to have been caused by bullet, and similarly, none of the other appellants received any wound that might, in any way, suggest the possibility of having been caused by bullet; and finally, because the fact that he and his co-appellants, together with those who had been charged jointly with them, had gone to the place of the crime armed with bolos, determined at any cost to prevent the Holgados from plowing the land in dispute, cannot but disclose not only their determination to resort to violence or something worse, but that they did not need any provocation in order to carry out their intent. They likewise attempted to prove that the appellant Marcelo Kalalo alone fought against the deceased Marcelino Panaligan and Arcadio Holgado and inflicted upon them the wounds which resulted in their death, said appellant testifying that he was compelled to do so in defense of his own life because both of the deceased attacked him first, the former with a revolver, firing three shots at him, and the latter with a bolo. For the same reasons hereinbefore stated, such defense of the appellants cannot be given credit. One man alone could not have inflicted on the two deceased their multiple wounds, particularly when it is borne in mind that one of them was better armed, because he carried a revolver, and that he was furthermore an expert shot and scarcely two arm-lengths from Kalalo, according to the latter's own testimony. The two witnesses for the defense, who witnessed the crime very closely, refuted such allegation saying that Marcelo Kalalo alone fought the deceased Arcadio Holgado and that the other three appellants went after the other deceased. It is true that Arcadio Holgado also used his bolo to defend himself from Marcelo Kalalo's aggression but it is no less true that five of the principal wounds of the other deceased Marcelino Panaligan were inflicted on him from behind, inasmuch as according to Exhibit H they were all found at the back of the head, on the neck and on his back. Neither is it less true that all the wounds of the appellant Marcelo Kalalo were inflicted on him from the front, which fact shows that it was not he alone who inflicted the wounds on the two deceased because had he been alone Panaligan would not have exposed his back to be thus attacked from behind, inasmuch as he was armed with a revolver, which circumstance undoubtedly allowed him to keep at a distance from Kalalo; and in connection with the testimony of Isabela Holgado and Maria Gutierrez, said circumstance shows furthermore that the three appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos attacked said Panaligan with their respective bolos at the same time that Marcelo Kalalo attacked Arcadio Holgado, in order that all might act simultaneously in conformity with the common intent of the four and of their coaccused to eliminate through violence and at any cost, without much risk to them, all those who wanted to plow the land which was the cause of the dispute between the two parties. And it is not strange that the three appellants, who inflicted the wounds upon Marcelino Panaligan, should act as they did, because they knew that the latter carried a revolver in a holster on his belt. Although it may seem a repetition or redundancy, it should be stated that Marcelo Kalalo's allegation that he acted in selfdefense is absolutely unfounded on the ground that, were it true that the deceased Marcelino Panaligan succeeded in using his revolver, he would have wounded if not the said appellant, at least the other appellants.

The trial court has acted correctly in not giving credit to the testimony of the appellants Juan and Felipe Kalalo and Gregorio Ramos that they proceeded to the scene of the crime completely unarmed, with the exception that one of them had a brush in his hand and the other a plane, after Marcelino Panaligan and Arcadio Holgado had already expired, which is incredible and improbable under the circumstances, knowing, as in fact they then knew, that their brother Marcelo Kalalo had been attacked by armed men. This court cannot help but agree with the decision of the lower court where it states: It is improbable that after having been informed that their brother was engaged in a fight, they went to the scene of the crime, one merely armed with a plane and the other with a brush. It is improbable that Felipe Kalalo also went to that place simply to follow Juan Kalalo and Gregorio Ramos upon seeing them run unarmed in that direction. These improbabilities of the defenses of the accused, in the face of the positive and clear testimony of the eyewitnesses pointing to the said accused as the aggressors of the deceased Marcelino Panaligan and Arcadio Holgado, cannot, of course, prevail against nor detract from the weight of the evidence of the prosecution, particularly taking into consideration the numerous wounds of each of the deceased and the positions thereof, which show that the said deceased were attacked by several persons and that those several persons were the defendants. Furthermore, the established fact that after the commission of the crime the said defendants had been in hiding in order to avoid arrest, is corroborative evidence of their guilt. It certainly is a fact of record that the said three appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos were not arrested until after several days, because they had been hiding or, at least, absenting themselves from their homes. That the four appellants should all be held liable for the death of the two deceased leaves no room for doubt. All of them, in going to the land where the killing took place, were actuated by the same motive which was to get rid of all those who might insist on plowing the land which they believed belonged to one of them, that is, to Marcelo Kalalo, a fact naturally inferable from the circumstance that all of them went there fully armed and that they simultaneously acted after they had been instigated by their mother with the words hereinbefore stated, to wit: "What is detaining you?" The question now to be decided is whether the appellants are guilty of murder or of simple homicide in each of cases G.R. No. L-39303 and G.R. No. L-39304. The Attorney-General maintains that they are guilty of murder in view of the presence of the qualifying circumstance of abuse of superior strength in the commission of the acts to which the said two cases particularly refer. The trial court was of the opinion that they are guilty of simple homicide but with the aggravating circumstance of abuse of superior strength. It is true that under article 248 of the Revised Penal Code, which defines murder, the circumstance of "abuse of superior strength", if proven to have been presented, raises homicide to the category of murder; but this court is of the opinion that said circumstance may not properly be taken into consideration in the two cases at bar, either as a qualifying or as a generic circumstance, if it is borne in mind that the deceased were also armed, one of them with a bolo, and the other with a revolver. The risk was even for the contending parties and their strength was almost balanced because there is no doubt but that, under circumstances similar to those of the present case, a revolver is as effective as, if not more than three bolos. For this reason, this court is of the opinion that the acts established in cases Nos. 6858 and 6859 (G.R. Nos. L-39303 and 39304, respectively), merely constitute two homicides, with no modifying circumstance to be taken into consideration because none has been proved. As to case No. 6860 (G.R. No. 39305), the evidence shows that Marcelo Kalalo fired four successive shots at Hilarion Holgado while the latter was fleeing from the scene of the crime in order to be out of reach of the appellants and their companions and save his own life. The fact that the said appellant, not having contended himself with firing only once, fired said successive shots at Hilarion Holgado, added to the circumstance that immediately before doing so he and his co-appellants had already killed Arcadio Holgado and Marcelino Panaligan, cousin and brother-in-law, respectively, of the former, shows that he was then bent on killing said Hilarion Holgado. He performed everything necessary on his pat to commit the crime that he determined to commit but he failed by reason of causes independent of his will, either because of his poor aim or because his intended victim succeeded in dodging the shots, none of which found its mark. The acts thus committed by the said appellant Marcelo Kalalo constitute attempted homicide with no modifying circumstance to be taken into consideration, because none has been established. Wherefore, the three appealed sentences are hereby modified as follows: In case No. 6858, or G.R. No. 39303, the court finds that the crime committed by the appellants is homicide and they hereby sentenced to fourteen years, eight months and one day of reclusion temporal each, to jointly and severally indemnify the heirs of Marcelino Panaligan in the sum of P1,000 and to pay the proportionate part of the costs of the proceedings of both instances; and by virtue of the provisions of Act No. 4103, the minimum of the said penalty of reclusion temporal is hereby fixed at nine years; In case No. 6859, or G.R. No. 39304, the court likewise finds that the crime committed by the appellants is homicide, and they are hereby sentenced to fourteen years, eight months and one day of reclusion temporal each, to jointly and severally indemnify the heirs of Arcadio Holgado in the sum of P1,000 and to pay the proportionate part of the costs of both instances; and in conformity with the provisions of Act No. 4103, the minimum of the penalty of reclusion temporal herein imposed upon them is hereby fixed at nine years;

In case No. 6860, or G.R. No. 39305, the court finds that the crime committed by the appellant Marcelo Kalalo is attempted homicide, and he is hereby sentenced to two years, four months and one day of prision correccional, it being understood that by virtue of the provisions of said Act No. 4103, the minimum of this penalty is six months, and he is furthermore sentenced to pay the costs of the appeal in this case. In all other respects, the appealed sentences in the said three cases are hereby affirmed without prejudice to crediting the appellants therein with one-half of the time during which they have undergone preventive imprisonment, in accordance with article 29 of the Revised Penal Code. So ordered. VI. Estafa VII. Bribery G.R. No. L-62439 October 23, 1984 GREGORY JAMES vs. THE HONORABLE COURT OF APPEALS, respondent. Macario C. Ofilada, Jr. for petitioner. Gil Venerando R. Racho collaborating counsel for petitioner. The Solicitor General for respondent. POZAR, petitioner,

GUERRERO, J.:+.wph!1 In an Information dated July 22, 1980 and filed with the City Court of Angeles City, Branch I, docketed thereat as Criminal Case No. CAT-326, petitioner, an American citizen and a permanent resident of the Philippines, was charged with the crime of Corruption of a Public Official, allegedly committed as follows: t.hqw That on or about the 17th day of December, 1979, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then an applicant for probation after he was convicted of an offense by a competent court, did then and there willfully, unlawfully, and feloniously give to the complainant, Mr. Danilo Ocampo, the City Probation Officer, the sum of P100.00 in a paper bill with Serial Nos. BC530309, under circumstances that would make the said City Probation Officer Mr. Danilo Ocampo liable for bribery. ALL CONTRARY TO LAW. Upon arraignment, petitioner pleaded not guilty to the said information and, after trial, the City Court inits decision of May 15, 1981 found the petitioner guilty of the crime of corruption of a public official, the dispositive portion of which reads: t. hqw WHEREFORE, the Court finds the accused Gregory Pozar guilty of the offense of Corruption of a Public Official as charged in the Information, and the Court pursuant to Article 212, in relation to Article 211 of the Revised Penal Code, hereby sentences the accused Gregory James Pozar to an imprisonment of three (3) months and one (1) day of Arresto Mayor, and hereby censures him for his actuation in this matter, with costs against the accused. The one hundred peso bill is hereby forfeited in favor of the Republic of the Philippines. SO ORDERED.1wph1.t The decision was appealed to the Court of Appeals (now In termediate Appellate Court) and subsequently, the appellate court affirmed the same in toto. Petitioner's motion for reconsideration was denied on October 19, 1982 and on December 21, 1982, petitioner filed the instant petition for review of the decision of the respondent court, relying on the constitutional precept that "In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved." (Article IV, Sec. 19), and that the State, having the burden of establishing all the elements of the crime with which the accused is charged, must prove the guilt of the accused beyond reasonable doubt, has failed to present and establish the required quantum of proof against the accused petitioner, hence he is entitled to an acquittal. .

The evidence for the prosecution are stated in the decision of the respondent court, thus: t.hqw The prosecution presented as its witnesses Mr. Ricardo Manalo, Mrs. Primitiva Francisco and Mr. Danilo Ocampo. Upon the other hand, the defense placed on the witness stand appellant himself and his counsel Atty. Reynaldo Suarez. Ricardo Manalo, Clerk at the Probation Office of Angeles City, declared that he started working at the Probation Office since May 2, 1978 and came to know appellant because the latter had gone to said office in connection with his application for probation; that at about noontime of December 17, 1979, appellant came to the office looking for Probation Officer Danilo Ocampo and since the latter was out at the time, appellant gave him a closed envelope bearing the name of Ocampo for delivery to the latter; that two days later, he gave the envelope to Ocampo who opened the same in his presence; that the envelope contained some official papers connected with appellant's application for probation and attached thereto was a hundred peso bill; that Ocampo then remarked: 'This s something bad that the opening of the envelope was done on December 19, 1979; that Ocampo kept the envelope and its contents, including the one hundred peso bill, but within a week's time gave them to him with instructions to give the same to appellant but the latter never came to the office and so he returned them to Ocampo; that although he later saw appellant about two weeks after December 17, 1979, when the latter came to the office to sign some papers, he never mentioned to appellant the one hundred peso bill (pp. 2-16, t.s.n., September 16, 1980) Manalo further declared that at the nine the envelope with the one hundred peso bill was given to him by appellant for delivery to Ocampo, he already had an inkling or knowledge that the Probation Office will recommend for the grant of appellant's application for probation because he was the one who makes the final typing of a post, sentence investigation report and before said final typing Ocampo usually talks to him, so that he knows whether the recommendation was for a grant or denial of an application (pp. 16-19, t.s.n., September 16, 1980). Mrs. Primitiva Francisco, Assistant Probation Officer of the Angeles City Probation Office, declared that she knows appellant because the latter was one of the applicants for probation in 1979 and she was the one assigned to investigate appellant's case; that as Assistant Probation Officer in the Investigation of applications for probation and in the case of appellant, she requested him to submit certain pertinent documents required by their office, such as barangay, police and court clearances, residence certificate, etc.; that she prepared appellant's post-sentence Investigation Report (Exhs. "B" to "B-5") that she first saw appellant on December 7, 1979, when she interviewed him on his social and personal history and his version of the offense, among others; that she gave the list of documents which are to be submitted to the office; that the second time she saw appellant was on December 21, 1979 but appellant was out at the time and when she saw that he was in his car that broke down in front of the Pampaguena she tried to can him but the car left as she was about to reach the place (pp. 2-21, tsn, January 26, 1981). Mrs. Francisco further declared that at the time she saw appellant on December 21, 1979, the latter was asking person to leave for Baguio City but she told him to talk with Probation Officer, Mr. Ocampo, anent the matter; that she then prepared a draft of the Post-Sentence Investigation report and thereafter had a conference with Ocampo who told him not to delete the bribery incident from the report; that it was first from Manalo and later from Ocampo that she became aware of the bribery or more accurately corruption of a public official committed by appellant (pp. 21-25, t.s.n., January 26, 1981). The third prosecution witness was complaint himself Danilo Ocampo, who declared that he has been the Probation Officer of an Angeles City, Probation Office since 1977 and that his employees thereat were Ricardo Manalo, Primitiva Francisco and Ramon de Leon; that at about 9:00 o'clock in the morning of December 19, 1979, he received a closed letter envelope from his clerk. Manalo, at the Probation Office at Merlan Building, Angeles City, Manalo informing him that the same came from appellant; that he opened the envelope on the presence of Manalo and found that the same contained xerox copies of the passport (Exh. "D") and visa (Exh. "D-1") of appellant and inserted with said documents. was a hundred peso bill with Serial No. BC530309 (Exh. "A-l"); that the envelope given him by Manalo was addressed to him Mr. Danilo Ocampo, Probation Officer, in handwritten for that he could not, however, produce said envelope the same having been misplaced that he kept the one hundred peso bill as the same was an evidence against appellant; that when he met Atty. Reynaldo Suarez, appellant's counsel at the Angeles City Court on January 14, 1980, he told the latter about the envelope received from appellant containing the passport, visa and the one hundred peso bill inserted with said documents and intimated to the lawyer that the client should not have inserted said one hundred peso bill (pp. 46-57, t.s.n. September 16, 1980). Ocampo further declared that the Post-Sentence Investigation Report was prepared by Mrs. Francisco who conducted the investigation; that the first time he saw appellant was on December 10, 1979, when the latter was seeking permission to go to Baguio City and being a foreigner, he required him to submit to his office copies of the latter's passport and visa; that the second time he met appellant was in March, 1980, when the hearing of appellant's application for probation was conducted at Branch I of the Angeles City Court; that he never required appellant to give money, so that when he saw the one hundred peso bill (Exh. "A") in the envelope handed him by Manalo, he was very much surprised; that he intended to confront appellant but was unable to do so but was able to inform Atty. Suarez, appellant's lawyer, about the matter when he met him at the City Court; that at the time the envelope containing the documents and money was handed to him on, December 19, 1979, the Post-Sentence Investigation Report was not yet finished and that the same was submitted to the City Court by Mrs. Francisco on February 5, 1980; that the fact that appellant enclosed a one hundred peso bill in the envelope was mentioned in said report (pp. 60-73, t.s.n., September 16, 1980).

Ocampo further testified that at the time of the hearing of appellant's application or petition for probation, the Presiding Judge of Branch I of the City Court held a conference in the court's chamber with appellant's counsel the trial fiscal and himself, during which they discussed the bribery incident mentioned in the report; that the presiding judge of Branch I, after some clarifications regarding the incident in question, suggested that coplainant should lodge a complaint against appellant and the all should conduct the corresponding preliminary investigation to determine whether there was a prima facie case (pp. 75-76, 82-86, t.s.n., September 16, 1980). Finally, Ocampo declared that he approved the Post-Sentence Investigation Report recommending the granting of appellant's application for probation, notwithstanding the bribery or corruption incident mentioned in said report, because appellant's act was not yet a disqualification under the law, as he was still presumed innocent until he is found guilty by the court (pp. 90-91, t.s.n. December 8, 1980). The appealed decision tersely cited the evidence for the defense in the following manner: t.hqw The evidence for the defense is that the one hundred peso bill the accused-appellant placed in the envelope delivered to the Probation Officer was allegedly intended to take care of the expenses in the xerox copying or reproduction of documents that may be needed by the Probation Office. (p. 7, CA Decision). Considering that the findings of fact in the decision of the respondent court which affirmed the decision of the trial court, do not mention nor indicate the circumstances surrounding the incident and the filing of the information against the petitioner other than the admitted fact that the one hundred peso bill was placed in the envelope together with the visa and passport of the petitioner which he handed on December 17, 1979 to Mr. Ricardo Manalo and which the latter in turn handed on December 19, 1979 to Probation Officer Danilo Ocampo, in fairness to the petitioner, We quote hereunder the decision of the trial court which recited the said circumstances that led to the filing of the Information against the petitioner, to wit: t.hqw From the evidence presented, the following facts appear to the court to be indubitable; That the accused was convicted of the crime of less Serious Physical Injuries, and the crime of Oral Defamation of the City Court of Angeles City, Branch 1, and the said accused was sentenced to an imprisonment of 15 days of Arresto Menor and to pay a fine of P50.00 and to pay the complaining witness the amount of P500.00 as moral and exempt damages. After he was sentenced, he, on November 28, 1979 filed an Application for Probation. That after filing the application for Probation, the accused, together with his lawyer Atty. Reynaldo Suarez, went to the Probation Office purposely to inquire for the requirements need for his client's petition for probation. Unfortunately, Atty. Suarez and his client did not reach the Probation Officer Mr. Danilo Ocampo. It was Mr. Manalo, a clerk of the Probation Office, whom they reached, and they were re. requested to come back to the office regarding their inquiry inasmuch as the Probation Officer was not in the office. Later, Atty. Suarez called through the telephone the Probation Office, and, on that occasion he was able to talk with the Probation Inspector, Mrs. Primitiva Francisco. He was inquiring from Mrs. Francisco the necessary documents regarding the application for probation of his client and Mrs. Francisco suggested that he would come over the office in order to give him all the necessary information. The lawyer just instructed Mrs. Francisco to give a list of the requirements to Mr. Pozar, the accused, who was then in the, Office of the Probation Officer, and accordingly, Mrs. Francisco handed to Mr. Pozar a list of the documents needed in his probation (see Exhibit E for the prosecution, and Exhibit 3 for the defense). It also appears that all the re. requirements listed in the list given by Mrs, Francisco were given to Mrs. Francisco, and at times to Mr. Manalo. The person who conducted the investigation was actually Mrs. Francisco. On December 10, 1979, Pozar had an occasion to see the Probation Officer, Mr. Danilo Ocampo, and in that meeting, aside from the fact that he was asking permission from the Probation Officer to go to Baguio, the Probation Officer required him to furnish the Probation Office the xerox copy of his visa, and his I.D. picture, inasmuch as it was explained to him these were needed, he being a foreigner. On December 17, 1979 Mr. Pozar went to the Probation Office looking for the Probation Officer, and when the Probation Officer was not there, he handed to Mr. Manalo an envelope address to the Probation Of officer and asked and requested Mr. Manalo to give the same to Mr. Ocampo. It was on December 19,1979 when Mr. Manalo handed the envelope given by Mr. Pozar to Mr. Danilo Ocampo, and when Danilo Ocampo opened it in the presence of Mr. Manalo, he found enclose in the envelope a xerox copy of the applicant's passport, xerox copy of his visa, and attached also with the same document was a one hundred peso bill It would seem that Mr. Ocampo asked Mr. Manalo to keep the one hundred peso bill and return it to Mr. Pozar, but when Mr. Pozar did not arrive to the office, Mr. Manalo gave it back to Mr. Ocampo Mr. Danilo Ocampo kept the one hundred peso bill but made it a point that this incident regarding the receiving of the one hundred peso being be included in the post-sentence investigation report which was being prepared by Mrs. Francisco. At that time when the one hundred peso bill was given, the post-sentence investigation report was not yet finished. The record shows that the same was submitted to the court only on February 8, 1980. At the hearing of the application for probation in March 1980, when the Presiding Judge of City Court of Angeles City, Branch 1, noted and saw from the report the alleged incident of the accused's giving the one hundred peso bill he called for a conference and in that conference, he suggested that the manner should be investigated by the Office of the City F'iscal Acting upon such suggestion Danilo Ocampo formally filed an Information Sheet against the accused Gregory Pozar (Exhibit 2). It is also a fact admitted by the defense that after the one hundred peso bill was handed and the Probation Officer was not able to return the same, he informed Atty. Suarez at the sala of City Court Branch II sometime on January 14, 1980. (pages 8-9) As stated earlier, petitioner was found guilty of the offense of Corruption of Public Official as defined and penalized in the Revised Penn Code as follows: t.hqw

Art. 212. Corruption of Public Officials. The same penalties imposed upon the officer corrupted, except those of disqualification and suspension, shall be imposed upon any person who shall have made the offers or promises or given the gifts or presents as described in the preceding articles. The preceding Articles of the Revised Penal Code are Articles 210 and 211 which define and penalize the offenses of direct bribery and indirect bribery, and they provide as follows: t.hqw Art. 210. Direct Bribery. Any public officer who will agree to perform an act constituting a crime, in connection with the performance of his official duties, in consideration of any offer, promise, gift or present received by such officer, personally or through the mediation of another, shag suffer the penalty of prision correccional in its minimum and medium periods and a fine of not less than the value of the gift and not more than three times such value, in addition to the penalty corresponding to the crime agreed upon, ff the same shall have been committed. If the gift was accepted by the officer in consideration of the execution of an act which does not constitute a crime, and the officer executed said act, he shall suffer the same penalty provided in the preceding paragraph, and if said shall not have been accomplished, the officer shall suffer the penalties of arresto mayor in its maximum period and a fine of not less than the value of the gift and not more than twice such value, If the object for which the gift was received or promised was to make the public officer refrain from doing something which it was his official duty to do, he shall suffer the penalties of arresto mayor in its medium and maximum periods and a fine not less than the value of the gift and not more than three times such value. In addition to the penalties provided in the preceding paragraphs, the culprit shall suffer the penalty of special temporary disqualification. The provisions contained in the preceding paragraphs shall be made applicable to assessors, arbitrators, appraisal and claim commissioners, experts, or any other persons performing public duties. Art. 211. Indirect Bribery. The penalties of arresto mayor, suspension in its minimum and medium periods, and public censure shall be imposed upon any public officer who shall accept gifts offered to him by reason of his office. It is well to note and distinguish direct bribery from indirect bribery. In both crimes, the public officer receives gift. While in direct bribery, there is an agreement between the public officer and the giver of the gift or present, in indirect bribery, usually no such agreement exist. In direct bribery, the offender agrees to perform or performs an act or refrains from doing something, because of the gift or promise in indirect bribery, it is not necessary that the officer should do any particular act or even promise to do an act, as it is enough that he accepts gifts offered to him by reason of his office. (The Revised Penal Code by Luis P. Reyes, 1975 Ed., p. 332). In the case at bar, We find that the Information against the petitioner charged that the accused "did then and there willfully, unlawfully, and feloniously give to the complainant, Mr. Danilo Ocampo, the City Probation Officer, the sum of one hundred (P100.00) pesos in a paper bill with serial No. BC530309, under circumstances that would make the said City Probation Officer, Mr. Danilo Ocampo, liable for bribery. The trial court found the accused guilty of the offense of Corruption of a Public Official as charged in the Information and pursuant to Article 212, in relation to Article 211 of the Revised Penal Code, sentenced the accused to an imprisonment of three (3) months and one (1) day of arresto mayor and public censure. This is erroneous. The trial court erred in finding the accused guilty of the crime of Corruption of Public Official as consummated offense (which is affirmed by the respondent appellant court) for it is clear from the evidence of the prosecution as recited in both decisions of the trial and appellate courts, that the complainant Probation Officer did not accept the one hundred peso bill Hence, the crime would be attempted corruption of a public official. (See The Revised Penal Code by Justice Ramon Aquino, 1976 Ed., Vol. II, p. 1168, citing the cases of Uy Matiao, 1 Phil. 487; Camacan 7 Phil. 329; Tan Gee, 7 Phil. 738; SyGuikao 18 Phil. 482; Te Tong, 26 Phil. 453; Ng Pek 81 Phil. 562; Ching, CA-G.R. No. 439-R, July 31, 1947). Attempted corruption of a public official is punished with destierro and is cognizable by inferior courts (See Revised Penal Code by justice Aquino, Vol. II, 1976 Ed., citing the cases of Uy Chin Hua v. Dinglasan, 86 Phil. 617; Santos y Bautista, 87 PhiL 687; Dalao v. Geronimo, 92 Phil. 1942; Ng Pek 81 Phil. 562). Be that as it may, the crucial point is whether the prosecution has established beyond reasonable doubt that the one hundred peso bill was given to bribe and corrupt the City Probation Officer or that it will be used to defray expenses in xeroxing or copying of whatever documents needed by the Probation Office in connection with petitioner's application for probation then pending in said office. The evidence on record disclose that the petitioner was required by the Assistant Probation Officer, Primitive Francisco, to submit in connection with his probation application the Court Information ( complaint) Court decision, Custody Status (recognizance or bail bond), clearances from the Police, the Court, Barangay Certificate, I.D. pictures (3 copies), residence certificate, and told to report once a week on Mondays. (Exhibit "E"). This was on December 7, 1979.

Aside from these documents, the Probation Officer required of the petitioner on December 10, 1979 when the latter was asking permission to go to Baguio to submit to the office a copy of his visa and passport. Mrs. Francisco to testified that the petitioner was asking permission from her to leave for Baguio. And according to the petitioner, "during all the time he was applying for probation, he made more or less 12 visits in the office as he was directed to report every Monday at 10:00 o'clock in the morning. He reported for 6 to 7 consecutive weeks and there were times that he went there unscheduled for conference and clarification of the various re. requirements he needed. During all the time he went there, he met Manalo, Mrs. Francisco and Mr. Ocampo himself. Mrs. Francisco and Mr. Ocampo interviewed him He submitted all the requirements to the Probation Officer; at times, he submitted them directly to Mrs. Francisco, and at other times to Mr. Manalo, and also to Mr. Ocampo. Other than those listed in the list given by Mrs. Francisco, he was required to submit xerox copy of his passport, his visa and his pictures. He explained that he gave the requirements to the person who was interviewing him, primarily Mrs. Francisco, of the documents needed. Later, he submitted to the office xerox copy of the original He likewise submitted his two passports, and later xerox copy of his passports. When Mrs. Francisco was asking for the original, which documents are in the possession of his lawyer at his office, he had to return to get the originals." (Decision of Trial Court, p. 5). Petitioner's travail is, therefore, quite evident. From the foregoing, We can fairly deduce that the procedure for processing petitioner's application for probation in the Probation Office at Angeles City was not precise, explicit and clear cut And since the accused petitioner is a foreigner and quite unfamiliar with probation rules and procedures, there is reason to conclude that petitioner was befuddled, if not confused so that his act of providing and advancing the expenses for whatever documentation was needed further to complete and thus hasten his probation application, was understandably innocent and not criminal. In fine, the facts and circumstances on record amply justify and support the claim of the defense as against the conjectures, speculation and supposition recited in the decision of the trial court and quoted with approval in the appealed decision under review. The Government's own evidence as indicated in the Post-Sentence Investigation Report that the giving of the one hundred pesos ( P100.00) was done in good faith, is vital for it belies petitioner's criminal intent. There being no criminal intent to corrupt the Probation Officer, the accused petitioner is entitled to acquittal of the crime charged. We hold and rule that the prosecution has not proved the guilt of the accused beyond reasonable doubt. There is not that moral certainty required to convict him. Even the complainant himself, the Probation Officer, filed the complaint only on the suggestion of the presiding judge of the Angeles City Court during the hearing on petitioner's application for probation, the complaint having been filed in the City Fiscal's Office on June 10, 1980 after a lapse and delay of six (6) months. WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment appealed from is hereby REVERSED. The accused petitioner is hereby ACQUITTED. No costs. SO ORDERED.1wph1.t