EN BANC ARISTOTEL VALENZUELA y NATIVIDAD, Petitioner, G. R. No. 160188 Present: PUNO, C.J.

, QUISUMBING, SANTIAGO, GUTIERREZ, CARPIO, MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, VELASCO, and NACHURA, JJ. Promulgated: June 21, 2007 x----------------------------------------------------------------------------x 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]

versus -

PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS, Respondents.

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the parking space where Calderon was waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were apprehended at the scene, and the stolen merchandise recovered.[8]The filched items seized from the duo were

four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods with an aggregate value of P12,090.00.[9] Petitioner and Calderon were first brought to the SM security office before they were transferred on the same day to the Baler Station II of the Philippine National Police, Quezon City, for investigation. It appears from the police investigation records that apart from petitioner and Calderon, four (4) other persons were apprehended by the security guards at the scene and delivered to police custody at the Baler PNP Station in connection with the incident. However, after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and Calderon were charged with theft by the Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the incident.[10] After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994 when they were haled by Lago and his fellow security guards after a commotion and brought to the Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super Sale Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada.[11] As the queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket. It was while they were eating that they heard the gunshot fired by Lago, leading them to head out of the building to check what was transpiring. As they were outside, they were suddenly grabbed by a security guard, thus commencing their detention.[12]Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio Valenzuela, [13] had been at the parking lot, walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The gunshot caused him and the other people at the scene to start running, at which point he was apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the security office until around 9:00 p.m., at which time he and the others were brought to the Baler Police Station. At the station, petitioner denied having stolen the cartons of detergent, but he was detained overnight, and eventually brought to the prosecutors office where he was charged with theft.[14] During

petitioners cross-examination, he admitted that he had been employed as a bundler of GMS Marketing, assigned at the supermarket though not at SM.[15] In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They were sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to seven (7) years of prision mayor as maximum.[17] The RTC found credible the testimonies of the prosecution witnesses and established the convictions on the positive identification of the accused as perpetrators of the crime. Both accused filed their respective Notices of Appeal,[18] but only petitioner filed a brief[19] with the Court of Appeals, causing the appellate court to deem Calderons appeal as abandoned and consequently dismissed. Before the Court of Appeals, petitioner argued that he should only be convicted of frustrated theft since at the time he was apprehended, he was never placed in a position to freely dispose of the articles stolen.[20] However, in its Decision dated 19 June 2003,[21] the Court of Appeals rejected this contention and affirmed petitioners conviction.[22] Hence the present Petition for Review,[23] which expressly seeks that petitioners conviction be modified to only of Frustrated Theft.[24] Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual participation in the theft of several cases of detergent with a total value of P12,090.00 of which he was charged.[25] As such, there is no cause for the Court to consider a factual scenario other than that presented by the prosecution, as affirmed by the RTC and the Court of Appeals. The only question to consider is whether under the given facts, the theft should be deemed as consummated or merely frustrated. II. In arguing that he should only be convicted of frustrated theft, petitioner cites[26] two decisions rendered many years ago by the Court of Appeals: People v. Dio[27] and People v. Flores.[28] Both decisions elicit the interest of this Court, as they modified trial court convictions from consummated to frustrated theft and involve a factual milieu that bears

similarity to the present case. Petitioner invoked the same rulings in his appeal to the Court of Appeals, yet the appellate court did not expressly consider the import of the rulings when it affirmed the conviction. It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores rulings since they have not yet been expressly adopted as precedents by this Court. For whatever reasons, the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the silence on our part, Dio and Flores have attained a level of renown reached by very few other appellate court rulings. They are comprehensively discussed in the most popular of our criminal law annotations,[29] and studied in criminal law classes as textbook examples of frustrated crimes or even as definitive of frustrated theft. More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law exams more than they actually occur in real life. Indeed, if we finally say that Dio and Flores are doctrinal, such conclusion could profoundly influence a multitude of routine theft prosecutions, including commonplace shoplifting. Any scenario that involves the thief having to exit with the stolen property through a supervised egress, such as a supermarket checkout counter or a parking area pay booth, may easily call for the application of Dio and Flores. The fact that lower courts have not hesitated to lay down convictions for frustrated theft further validates that Dio and Flores and the theories offered therein on frustrated theft have borne some weight in our jurisprudential system. The time is thus ripe for us to examine whether those theories are correct and should continue to influence prosecutors and judges in the future. III. To delve into any extended analysis of Dio and Flores, as well as the specific issues relative to frustrated theft, it is necessary to first refer to the basic rules on the three stages of crimes under our Revised Penal Code.
[30]

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

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

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]

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

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:

of acquiring gain from the object, thus: [f]urtum est contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve.[45] This requirement of animo lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has since been abandoned in Great Britain.[46] In Spanish law, animo lucrandi was compounded with apoderamiento, or unlawful taking, to characterize theft. Justice Regalado notes that the concept of apoderamiento once had a controversial interpretation and application. Spanish law had already discounted the belief that mere physical taking was constitutive of apoderamiento, finding that it had to be coupled with the intent to appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the lawful owner of the thing.[47] However, a conflicting line of cases decided by the Court of Appeals ruled, alternatively, that there must be permanency in the taking[48] or an intent to permanently deprive the owner of the stolen property;[49] or that there was no need for permanency in the taking or in its intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of the owner already constituted apoderamiento. [50] Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there was no need of an intent to permanently deprive the owner of his property to constitute an unlawful taking.[51] So long as the descriptive circumstances that qualify the taking are present, including animo lucrandi andapoderamiento, the completion of the operative act that is the taking of personal property of another establishes, at least, that the transgression went beyond the attempted stage. As applied to the present case, the moment petitioner obtained physical possession of the cases of detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed without need to inflict violence or intimidation against persons nor force upon things, and accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction for only attempted theft would have afforded him. On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft would have been frustrated only, once the acts committed by petitioner, if ordinarily

sufficient to produce theft as a consequence, do not produce [such theft] by reason of causes independent of the will of the perpetrator. There are clearly two determinative factors to consider: that the felony is not produced, and that such failure is due to causes independent of the will of the perpetrator. The second factor ultimately depends on the evidence at hand in each particular case. The first, however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised Penal Code[52] as to when a particular felony is not produced, despite the commission of all the acts of execution. So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly is the felony of theft produced. Parsing through the statutory definition of theft under Article 308, there is one apparent answer provided in the language of the law that theft is already produced upon the tak[ing of] personal property of another without the latters consent. U.S. v. Adiao[53] apparently supports that notion. Therein, a customs inspector was charged with theft after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the Custom House. At no time was the accused able to get the merchandise out of the Custom House, and it appears that he was under observation during the entire transaction.[54] Based apparently on those two circumstances, the trial court had found him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and holding instead that the accused was guilty of consummated theft, finding that all the elements of the completed crime of theft are present.[55] In support of its conclusion that the theft was consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion of which we replicate below: The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the fruit[,] he was seen by a policeman, yet it did not appear that he was at that moment caught by the policeman but sometime later. The court said: "[x x x] The trial court did not err [x x x ] in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing that

the policemen who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from taking full possession of the thing stolen and even its utilization by him for an interval of time." (Decision of the Supreme Court of Spain, October 14, 1898.) Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account of the solemnity of the act, although noticing the theft, did not do anything to prevent it. Subsequently, however, while the defendant was still inside the church, the offended party got back the money from the defendant. The court said that the defendant had performed all the acts of execution and considered the theft as consummated. (Decision of the Supreme Court of Spain, December 1, 1897.) The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the case took a small box, which was also opened with a key, from which in turn he took a purse containing 461 reales and 20 centimos, and then he placed the money over the cover of the case; just at this moment he was caught by two guards who were stationed in another room near-by. The court considered this as consummated robbery, and said: "[x x x] The accused [x x x] having materially taken possession of the money from the moment he took it from the place where it had been, and having taken it with his hands with intent to appropriate the same, he executed all the acts necessary to constitute the crime which was thereby produced; only the act of making use of the thing having been frustrated, which, however, does not go to make the elements of the consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.)[56] It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in all these cases had been able to obtain full possession of the personal property prior to their

apprehension. The interval between the commission of the acts of theft and the apprehension of the thieves did vary, from sometime later in the 1898 decision; to the very moment the thief had just extracted the money in a purse which had been stored as it was in the 1882 decision; and before the thief had been able to spirit the item stolen from the building where the theft took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no consequence in those cases, as it was ruled that the thefts in each of those cases was consummated by the actual possession of the property belonging to another. In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than consummated theft. The case is People v. Sobrevilla,[57] where the accused, while in the midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers of the victim when the latter, perceiving the theft, caught hold of the [accused]s shirt-front, at the same time shouting for a policeman; after a struggle, he recovered his pocket-book and let go of the defendant, who was afterwards caught by a policeman.[58] In rejecting the contention that only frustrated theft was established, the Court simply said, without further comment or elaboration: We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that determines the crime of theft. If the pocket-book was afterwards recovered, such recovery does not affect the [accuseds] criminal liability, which arose from the [accused] having succeeded in taking the pocket-book.[59] If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the fact that the offender was able to succeed in obtaining physical possession of the stolen item, no matter how momentary, was able to consummate the theft. Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this case. Yet to simply affirm without further comment would be disingenuous, as there is another school of thought on when theft is consummated, as reflected in the Dio and Flores decisions.

Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The accused therein, a driver employed by the United States Army, had driven his truck into the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army personnel. After he had finished unloading, accused drove away his truck from the Port, but as he was approaching a checkpoint of the Military Police, he was stopped by an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later contended that he had been stopped by four men who had loaded the boxes with the agreement that they were to meet him and retrieve the rifles after he had passed the checkpoint. The trial court convicted accused of consummated theft, but the Court of Appeals modified the conviction, holding instead that only frustrated theft had been committed. In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles pass through the checkpoint, perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it would be allowed to pass through the check point without further investigation or checking.[60] This point was deemed material and indicative that the theft had not been fully produced, for the Court of Appeals pronounced that the fact determinative of consummation is the ability of the thief to dispose freely of the articles stolen, even if it were more or less momentary.[61]Support for this proposition was drawn from a decision of the Supreme Court of Spain dated 24 January 1888 (1888 decision), which was quoted as follows: Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del delito de hurto es preciso que so haga en circunstancias tales que permitan al sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el concepto del delito de hurto, no puede decirse en realidad que se haya producido en toda su extension, sin materializar demasiado el acto de tomar la cosa ajena.[62] Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the booty subject to the control and disposal of the culprits, the articles stolen must first be passed through the M.P. check point, but since the offense was opportunely discovered and the articles seized after all the acts of execution had been performed, but before the loot came under the final control and disposal of the looters, the offense can not be said to have been fully consummated, as it was frustrated by the timely intervention of the guard. The offense committed, therefore, is that of frustrated theft.[63] Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of apprehension is determinative as to whether the theft is consummated or frustrated. This theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which according to the division of the court that decided it, bore no substantial variance between the circumstances [herein] and in [Dio].[64] Such conclusion is borne out by the facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery receipt for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his truck at the terminal of the stevedoring company. The truck driver proceeded to show the delivery receipt to the guard on duty at the gate of the terminal. However, the guards insisted on inspecting the van, and discovered that the empty sea van had actually contained other merchandise as well.[65] The accused was prosecuted for theft qualified by abuse of confidence, and found himself convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative that he was guilty only of attempted theft, but the appellate court pointed out that there was no intervening act of spontaneous desistance on the part of the accused that literally frustrated the theft. However, the Court of Appeals, explicitly relying on Dio, did find that the accused was guilty only of frustrated, and not consummated, theft. As noted earlier, the appellate court admitted it found no substantial variance between Dio and Flores then before it. The prosecution in Flores had sought to distinguish that case from Dio, citing a traditional ruling which unfortunately was not identified in the decision itself. However, the Court of Appeals pointed out that the said traditional ruling was qualified by the words is placed in a situation where [the actor] could

dispose of its contents at once.[66] Pouncing on this qualification, the appellate court noted that [o]bviously, while the truck and the van were still within the compound, the petitioner could not have disposed of the goods at once. At the same time, the Court of Appeals conceded that [t]his is entirely different from the case where a much less bulk and more common thing as money was the object of the crime, where freedom to dispose of or make use of it is palpably less restricted,[67] though no further qualification was offered what the effect would have been had that alternative circumstance been present instead.

the stolen articles even if it were more or less momentary. Or as stated in another case[[69]], theft is consummated upon the voluntary and malicious taking of property belonging to another which is realized by the material occupation of the thing whereby the thief places it under his control and in such a situation that he could dispose of it at once. This ruling seems to have been based on Viadas opinion that in order the theft may be consummated, es preciso que se haga en circumstancias x x x [[70]][71] In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states that [i]n theft or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same, although his act of making use of the thing was frustrated.[72] There are at least two other Court of Appeals rulings that are at seeming variance with the Dio and Flores rulings. People v. Batoon[73] involved an accused who filled a container with gasoline from a petrol pump within view of a police detective, who followed the accused onto a passenger truck where the arrest was made. While the trial court found the accused guilty of frustrated qualified theft, the Court of Appeals held that the accused was guilty of consummated qualified theft, finding that [t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking with intent to gain is enough to consummate the crime of theft.[74] In People v. Espiritu,[75] the accused had removed nine pieces of hospital linen from a supply depot and loaded them onto a truck. However, as the truck passed through the checkpoint, the stolen items were discovered by the Military Police running the checkpoint. Even though those facts clearly admit to similarity with those in Dio, the Court of Appeals held that the accused were guilty of consummated theft, as the accused were able to take or get hold of the hospital linen and that the only thing that was frustrated, which does not constitute any element of theft, is the use or benefit that the thieves expected from the commission of the offense. [76] In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that [w]hen the meaning of an element of a felony is controversial, there is bound to arise different rulings as to the stage of

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

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 executionwhich 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 nonperformance was by reason of some cause or accident other than spontaneous desistance. Empelis concludes that the crime was sfrustrated 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 esdetenido 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 disposicindel 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?

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.

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.

DANTE O. TINGA Associate Justice WE CONCUR:

REYNATO S. PUNO Maybe the Dio/Flores rulings are, in some degree, grounded in common Chief Justice 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 LEONARDO theft A. QUISUMBING has been produced. Dio itself did not rely on Philippine laws or Associate Justice 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 ANGELINA SANDOVAL-GUTIERREZ

CONSUELO YNARES-SANTIAGO Associate Justice

ANTONIO T. CARPIO

Associate Justice

Associate Justice
[1]

See infra, People v. Dio and People v. Flores.

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

Not accounting for those unpublished or unreported decisions, in the one hundred year history of this Court, which could no longer be retrieved from RENATO C. CORONA the Philippine Reports or other secondary sources, due to their wholesale Associate Justicedestruction during the Second World War or for other reasons.
[3]

[2]

CONCHITA CARPIO MORALES Associate Justice

ADOLFO S. AZCUNA Associate Justice

See People v. Adiao, infra. There have been a few cases wherein the Court let stand a conviction for frustrated theft, yet in none of those cases was the issue squarely presented that theft could be committed at its frustrated stage. See People v. Abuyen, 52 Phil. 722 (1929); People v. Flores, 63 Phil. 443 (1936); and People v. Tapang, 88 Phil. 721 (1951). In People v. Argel G.R. No. L-45975, 25 May 1981, 192 SCRA 21, the Court did tacitly accept the viability of a conviction for frustrated theft, though the issue expounded on by the Court pertained to the proper appellate jurisdiction over such conviction.

MINITA V. CHICO-NAZARIO Associate Justice

It would indeed be error to perceive that convictions for frustrated theft are traditionally unconventional in this jurisdiction, as such have routinely been handed down by lower courts, as a survey of jurisprudence would reveal. Still, the plain fact remains that this Court , since Adiao in 1918, has yet to directly rule on the legal foundation of frustrated theft, or even discuss such PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA scenario by way of dicta. Associate Justice Associate Justice In passing, we take note of a recent decision of the Court of Appeals in People v. Concepcion, C.A. G.R. CR No. 28280, 11 July 2005 (See at CERTIFICATION http://ca.supremecourt.gov.ph /cardis/CR28280.pdf), where the appellate court affirmed a conviction for frustrated theft, the accused therein having been caught inside Meralco property before he could flee with some copper Pursuant to Article VIII, Section 13 of the Constitution, it is hereby electrical wire. However, in the said decision, the accused was charged at certified that the conclusions in the above Decision had been reached in the onset with frustrated theft, and the Court of Appeals did not inquire why consultation before the case was assigned to the writer of the opinion of the the crime committed was only frustrated theft. Moreover, the charge for Court. theft was not under the Revised Penal Code, but under Rep. Act No. 7832, a special law. REYNATO S. PUNO Chief Justice
[4]

CANCIO C. GARCIA Associate Justice

53 Phil. 226 (1929). 217 Phil. 377 (1984).

[5]

[6]

Records, pp. 1-2.

[14]

Rollo, p. 25. Records, pp. 424-425. Id. at 472-474; Penned by Judge Reynaldo B. Daway. Id. at 474. Id. at 484. CA rollo, pp. 54-62. Rollo, p. 25.

[7]

Rollo, pp. 21-22.

[15]

[8]

Id. at 22.
[16]

[9]

See id. at 472.

[17] [18]

[10]

See Records, pp. 7-14. A brief comment is warranted regarding these four (4) other apparent suspects. The affidavits and sworn statements that were executed during the police investigation by security guards Lago and Vivencio Yanson, by SM employee Adelio Nakar, and by the taxi driver whose cab had been hailed to transport the accused, commonly point to all six as co-participants in the theft of the detergents. It is not explained in the record why no charges were brought against the four (4) other suspects, and the prosecutions case before the trial court did not attempt to draw in any other suspects other than petitioner and Calderon. On the other hand, both petitioner and Calderon claimed during trial that they were innocent bystanders who happened to be in the vicinity of the Super Sale Club at the time of the incident when they were haled in, along with the four (4) other suspects by the security guards in the resulting confusion. See infra. However, both petitioner and Calderon made no move to demonstrate that the non-filing of the charges against the four (4) other suspects somehow bolstered their plea of innocence. In any event, from the time this case had been elevated on appeal to the Court of Appeals, no question was anymore raised on the version of facts presented by the prosecution. Thus, any issue relative to these four (4) other suspects should bear no effect in the present consideration of the case.
[11]

[19]

[20]

[21]

Id. at 20-27. Penned by Associate Justice Eubolo G. Verzola of the Court of Appeals Third Division, concurred in by Associate Justices Martin S. Villarama, Jr. and Mario L. Guaria.
[22]

A motion for reconsideration filed by petitioner was denied by the Court of Appeals in a Resolution dated 1 October 2003.
[23]

Rollo, pp. 8-15. Id. at 12. Id. at 9. Id. at at 13-14. No. 924-R, 18 February 1948, 45 O.G. 3446. 6 C.A. Rep. 2d 835 (1964).

[24]

[25]

[26]

Also identified in the case record as Rosalada or Rosullado. He happened to be among the four (4) other suspects also apprehended at the scene and brought for investigation to the Baler PNP Station. See id. Rosulada also testified in court in behalf of Calderon. See Records, pp. 357-390.
[12]

[27]

[28]

[29]

Records, pp. 330-337.

See e.g., L.B. REYES, I THE REVISED PENAL CODE: CRIMINAL LAW (13th ed., 2001), at 112-113 and R. AQUINO, I THE REVISED PENAL CODE (1997 ed.), at 122.
[30]

[13]

A person who was neither among the four (4) other suspects (see note 6) nor a witness for the defense.

Act No. 3185, as amended.

[31]

See People v. Caballero, 448 Phil. 514, 534 (2003). Reyes defines the final point of the subjective phase as that point where [the offender] still has control over his acts, including their (acts) natural course. See L.B. REYES, I THE REVISED PENAL CODE: CRIMINAL LAW (13th Ed., 2001), at 101.
[32]

[42]

See People v. Bustinera, G.R. No. 148233, 8 June 2004, 431 SCRA 284, 291, citing People v. Sison, 322 SCRA 345, 363-364 (2000).
[43]

S. GUEVARRA, COMMENTARIES ON THE REVISED PENAL CODE (4th ed., 1946), at 614.
[44]

People v. Caballero, 448 Phil. 514, 534 (2003).

Id. at 615. Id. citing Inst. 4, 1, 1.

[33]

See e.g., U.S. v. Eduave, 36 Phil. 209, 212 (1917); People v. Caballero, id.
[34]

[45]

U.S. v. Eduave, 36 Phil. 209, 212 (1917).

[46]

[35]

People v. Pacana, 47 Phil. 48 (1925); cited in AQUINO, supra note 29, at 39. See also Lecaroz v. Sandiganbayan, 364 Phil. 890, 905 (1999).
[36]

See Padilla v. Dizon, A.C. No. 3086, 23 February 1988, 158 SCRA 127, 135.
[37]

People v. Moreno, 356 Phil. 231, 248 (1998) citing BLACK'S LAW DICTIONARY, 5th ed., p. 889.
[38]

Jariol, Jr. v. Sandiganbayan, Nos. L-52095-52116, 13 August 1990, 188 SCRA 475, 490.
[39]

City of Chicago v. Morales, 527 U.S. 41 (1999) cited in Separate Opinion, J.Tinga, Romualdez v. Sandiganbayan, G.R. No. 152259, 29 July 2004, 435 SCRA 371, 400.
[40]

Section 1(2) of the Theft Act of 1968 states: It is immaterial whether the appropriation is made with a view to gain, or is made for the thiefs own benefit. Sir John Smith provides a sensible rationalization for this doctrine: Thus, to take examples from the old law, if D takes Ps letters and puts them down on a lavatory or backs Ps horse down a mine shaft, he is guilty of theft notwithstanding the fact that he intends only loss to P and no gain to himself or anyone else. It might be thought that these instances could safely and more appropriately have been left to other branches of the criminal lawthat of criminal damage to property for instance. But there are cases where there is no such damage or destruction of the thing as would found a charge under another Act. For example, D takes Ps diamond and flings it into a deep pond. The diamond lies unharmed in the pond and a prosecution for criminal damage would fail. It seems clearly right that D should be guilty of theft. J. SMITH, SMITH & HOGAN CRIMINAL LAW (9th ed., 1999), at 534.
[47]

F. REGALADO, CRIMINAL LAW CONSPECTUS (1st ed., 2000), at 520.

[48]

J. Feliciano, Concurring and Dissenting, Umil v. Ramos, G.R. No. 81567, 3 October 1991, 202 SCRA 251, 288.
[41]

People v. Kho Choc, 50 O.G. 1667, cited in REGALADO, id. at 521.

See also REVISED PENAL CODE, Art. 310, which qualifies theft with a penalty two degrees higher if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of the plantation or fish taken from a fishpond or fishery, or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.

[49]

People v. Galang, CA, 43 O.G. 577; People v. Rico, CA, 50 O.G. 3103; cf.People v. Roxas, CA-G.R. No. 14953, 31 October 1956, all cited in REGALADO, supra note 47 at 521.
[50]

People v. Fernandez, CA, 38 O.G. 985; People v. Martisano, CA, 48 O.G. 4417, cited in REGALADO, supra note 47 at 521.

[51]

REGALADO, supra note 47 at 521 citing Villacorta v. Insurance Commission, G.R. No. 54171, 28 October 1980, 100 SCRA 467; Association of Baptists for World Evangelism v. Fieldmens Ins. Co., No. L-28772, 21 September 1983, 209 Phil. 505 (1983). See also People v. Bustinera, supra note 42.
[52]

[67]

Id. People v. Dio, supra note 27 at 841. People v. Naval and Beltran, CA 46 O.G. 2641. See note 62. AQUINO, supra note 29 at 122. Id. at 110. C.A. G.R. No. 20105-R, 4 October 1958, 55 O.G. 1388. Id. at 1391. Citations omitted. CA G.R. No. 2107-R, 31 May 1949.

[68]

[69]

The distinction being inconsequential if the criminal charge is based on a special law such as the Dangerous Drugs Law. See e.g., People v. Enriquez, G.R. No. 99838,October 23 1997, 281 SCRA 103, 120.
[53]

[70]

[71]

38 Phil. 754 (1918). Id. at 755. Id.

[72]

[54]

[73]

[55]

[74] [56]

Id. at 755-756.
[75]

[57]

Supra note 4.
[76]

[58]

Supra note 4 at 227. Id.

Note the similarity between this holding and the observations of Chief Justice Aquino in note 72.
[77]

REYES, supra note 29 at 113.

[59]

[78] [60]

People v. Dio, supra note 27 at 3450. Id. Id. Id. at 3451. People v. Flores, supra note 28 at 840.

[61]

[62]

[63]

[64]

[65]

Id. at 836. The Court of Appeals in Flores did not identify the character of these stolen merchandise.
[66]

Id. at 841.

Supra note 5. REVISED PENAL CODE, Art. 310 states that the crime of theft shall "be punished by the penalties next higher by two degrees than those respectively expressed in the next preceding article x x x if the property stolen x x x consists of coconuts taken from the premises of a plantation, x x x." Thus, the stealing of coconuts when they are still in the tree or deposited on the ground within the premises is qualified theft. When the coconuts are stolen in any other place, it is simple theft. Stated differently, if the coconuts were taken in front of a house along the highway outside the coconut plantation, it would be simple theft only. [In the case at bar, petitioners were seen carrying away fifty coconuts while they were still in the premises of the plantation. They would therefore come within the definition of qualified theft because the property stolen consists of coconuts taken from the premises of a plantation.] Empelis v. IAC, supra note 5, at 379, 380.
[79]

[80]

Empelis v. IAC, supra note 5, at 380.

[87]

Id. at 798-799.

[81] [82]

Id. Art. 234, Cdigo Penal Espaol de 1995. See Ley Orgnica 10/1995, de 23 de noviembre, del Cdigo Penal, http://noticias.juridicas.com/base_datos/Penal/lo10-1995.html (Last visited, 15 April 2007). The traditional qualifier but without violence against or intimidation of persons nor force upon things, is instead incorporated in the definition of robbery (robos) under Articulo 237 of the same Code (Son reos del delito de robo los que, con nimo de lucro, se apoderaren de las cosas muebles ajenas empleando fuerza en las cosas para acceder al lugar donde stas se encuentran o violencia o intimidacin en las personas.) By way of contrast, the Theft Act 1968 of Great Britain defines theft in the following manner: A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and thief and steal shall be construed accordingly. See Section 1(1), Theft Act 1968 (Great Britain). The most notable difference between the modern British and Spanish laws on theft is the absence in the former of the element of animo lucrandi. See note 42. [83] 1 S. VIADA, CODIGO PENAL REFORMADO DE 1870 (1926 ed) at 103.
[84]

[88]

Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA 243, 266, citing United States v. Wiltberger, 18 U.S. 76 (1820).
[89]

Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA 243. See also Dowling v. United States, 473 U.S. 207 (1985).
[90]

See e.g., People v. Bustinera, supra note 42. AQUINO, supra note 29, at 110.

[91]

[92]

People v. Obillo, 411 Phil. 139, 150 (2001); People v. Bernabe, 448 Phil. 269, 280 (2003); People v. Bustinera, supra note 42 at 295.
[93]

44 Phil. 720 (1923). Id. at 726.

[94]

[95]

Justice Regalado cautions against putting a premium upon the pretensions of an accused geared towards obtention of a reduced penalty. REGALADO, supra note 47, at 27.

Considerando que segn se desprende de la sentencia recurrida, los dependientes de la sastrera de D. Joaquin Gabino sorprendieron al penado Juan Gomez Lopez al tomar una capa que haba en un maniqu, por lo que hubo de arrojarla al suelo, siendo detenido despues por agentes de la Autoridad yque esto supuesto es evidente que el delito no aparece realizado en toda la extensin precisa para poderlo calificar como consumado, etc. Id. at 103-104. LINK:
[85]

The other examples cited by Viada of frustrated theft are in the case where the offender was caught stealing potatoes off a field by storing them in his coat, before he could leave the field where the potatoes were taken, see Viada (supra note 83, at 103), where the offender was surprised at the meadow from where he was stealing firewood, id.
[86]

http://sc.judiciary.gov.ph/jurisprudence/2007/june2007 /160188.htm

E. CUELLO CALON, II DERECHO PENAL (1955 ed.), at 799 (Footnote 1).

Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION G.R. No. 138033 February 22, 2006 RENATO BALEROS, JR., Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION GARCIA, J.: In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal of the January 13, 1999 decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March 31, 1999 resolution2 denying petitioners motion for reconsideration. The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila, Branch 2, in Criminal Case No. 91-101642 finding petitioner Renato Baleros, Jr. y David (CHITO) guilty of attempted rape. 3 The accusatory portion of the information4 dated December 17, 1991 charging petitioner with attempted rape reads as follow: That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within the jurisdiction of this Honorable Court, the above-named accused, by forcefully covering the face of Martina Lourdes T. Albano with a piece of cloth soaked in chemical with dizzying effects, did then and there willfully, unlawfully and feloniously commenced the commission of rape by lying on top of her with the intention to have carnal knowledge with her but was unable to perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance, said acts being committed against her will and consent to her damage and prejudice. Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not Guilty."5 Thereafter, trial on the merits ensued. To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private complainant Martina Lourdes Albano (Malou), and her classmates, Joseph Bernard Africa, Rommel Montes, Renato Alagadan and Christian Alcala. Their testimonies, as narrated in some detail in the decision of the CA, established the following facts: Like most of the tenants of the Celestial Marie Building (hereafter "Building", ) along A.H. Lacson Street, Sampaloc, Manila, MALOU, occupying Room 307 with her maid, Marvilou Bebania (Marvilou), was a medical student of the University of Sto. Tomas [UST] in 1991. In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in front of her bedroom door, her maid, Marvilou, slept on a folding bed.

Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of cloth pressed on her face. She struggled but could not move. Somebody was pinning her down on the bed, holding her tightly. She wanted to scream for help but the hands covering her mouth with cloth wet with chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU continued fighting off her attacker by kicking him until at last her right hand got free. With this the opportunity presented itself when she was able to grab hold of his sex organ which she then squeezed. The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over the intercom, MALOU told S/G Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who it was she did not, however, know. The only thing she had made out during their struggle was the feel of her attackers clothes and weight. His upper garment was of cotton material while that at the lower portion felt smooth and satin-like (Ibid, p. 17). He was wearing a t-shirt and shorts Original Records, p. 355). To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo Acosta and Rommel Montes were staying, MALOU then proceeded to seek help. xxx. It was then when MALOU saw her bed topsy-turvy. Her nightdress was stained with blue (TSN, July 5, 1993, pp. 13-14). Aside from the window with grills which she had originally left opened, another window inside her bedroom was now open. Her attacker had fled from her room going through the left bedroom window (Ibid, Answers to Question number 5; Id), the one without iron grills which leads to Room 306 of the Building (TSN, July 5, 1993, p.6). xxx xxx xxx Further, MALOU testified that her relation with CHITO, who was her classmate , was friendly until a week prior to the attack. CHITO confided his feelings for her, telling her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she rejected him. . (TSN, July 5, 1993, p. 22). Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in the early morning of December 13, 1991, wearing a white t-shirt with a marking on the front of the T-shirt T M and a Greek letter (sic) and below the quoted letters the word 1946 UST Medicine and Surgery (TSN, October 9, 1992, p. 9) and black shorts with the brand name Adidas (TSN, October 16, 1992, p.7) and requested permission to go up to Room 306. This Unit was being leased by Ansbert Co and at that time when CHITO was asking permission to enter, only Joseph Bernard Africa was in the room.

He asked CHITO to produce the required written authorization and when CHITO could not, S/G Ferolin initially refused [but later, relented] . S/G Ferolin made the following entry in the security guards logbook : "0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from our tenant of Unit #-306 Ansbert, but still I let him inter (sic) for the reason that he will be our tenant this coming summer break as he said so I let him sign it here (Sgd.) Baleros Renato Jr." (Exhibit "A-2") That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph Bernard Africa (Joseph), . xxx xxx xxx Joseph was already inside Room 306 at 9 oclock in the evening of December 12, 1991. xxx by the time CHITOs knocking on the door woke him up, . He was able to fix the time of CHITOs arrival at 1:30 A.M. because he glanced at the alarm clock beside the bed when he was awakened by the knock at the door . Joseph noticed that CHITO was wearing dark-colored shorts and white Tshirt (Ibid., p. 23) when he let the latter in. . It was at around 3 oclock in the morning of December 13, 1991 when he woke up again later to the sound of knocking at the door, this time, by Bernard Baptista (Bernard), . xxx. With Bernard, Joseph then went to MALOUs room and thereat was shown by Bernard the open window through which the intruder supposedly passed. xxx xxx xxx Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to CHITO . He mentioned to the latter that something had happened and that they were not being allowed to get out of the building. Joseph also told CHITO to follow him to Room 310. CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in Room 310 so Joseph went to their yet another classmate, Renato Alagadan at Room 401 to see if the others were there. xxx. People from the CIS came by before 8 oclock that same morning . They likewise invited CHITO and Joseph to go with them to Camp Crame where the two (2) were questioned . An occupant of Room 310 Christian Alcala (Christian) recalled in Court that in the afternoon of December 13, 1991, after their 3:30 class, he and his roommates, Bernard Baptista and Lutgardo Acosta (Gary) were called to the Building and were asked by the CIS people to look for anything not

belonging to them in their Unit. While they were outside Room 310 talking with the authorities, Rommel Montes (Loyloy), another roommate of his, went inside to search the Unit. Loyloy found (TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their unit which they did not know was there and surrender the same to the investigators. When he saw the gray bag, Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he had seen the latter usually bringing it to school inside the classroom (Ibid, p. 45). In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a handkerchief , three (3) white T-shirts, an underwear, and socks (Ibid). Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the handkerchief (Exhibit "D-3) to be CHITOs because CHITO had lent the very same one to him . The t-shirt with CHITOs fraternity symbol, CHITO used to wear on weekends, and the handkerchief he saw CHITO used at least once in December. That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted mainly of Renato R. Alagadans testimony. xxx xxx xxx. The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to be full but was closed with a zipper when Renato saw it then (Ibid, pp. 19-20). At that time Christian, Gary, Bernard, and Renato went back to Room 310 at around 3 to 4 oclock that afternoon along with some CIS agents, they saw the bag at the same place inside the bedroom where Renato had seen CHITO leave it. Not until later that night at past 9 oclock in Camp Crame, however, did Renato know what the contents of the bag were. xxx xxx xxx. The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp Crame, having acted in response to the written request of PNP Superintendent Lucas M. Managuelod dated December 13, 1991, (Exhibit "C"; Original Records, p. 109.) conducted laboratory examination on the specimen collated and submitted. Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p. 112) reads in part, thus: "SPECIMEN SUBMITTED: xxx xxx xxx: 1) One (1) small white plastic bag marked UNIMART with the following: xxx xxx xxx Exh C One (1) night dress colored salmon pink.

2) One (1) small white pl astic bag marked JONAS with the following: Exh. D One (1) printed handkerchief. Exh. E One (1) white T-shirt marked TMZI. Exh. F One (1) black short (sic) marked ADIDAS. PURPOSE OF LABORATORY EXAMINATION: To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated specimens. FINDINGS: Toxicological examination conducted on the above stated specimens gave the following results: Exhs. C and D POSITIVE to the test for chloroform, a volatile poison. Exhs. A, B, E and F are insufficient for further analysis. CONCLUSION: Exhs. C and D contain chloroform, a volatile poison."6 (Words in bracket added) For its part, the defense presented, as its main witness, the petitioner himself. He denied committing the crime imputed to him or making at any time amorous advances on Malou. Unfolding a different version of the incident, the defense sought to establish the following, as culled from the same decision of the appellate court: In December of 1991, CHITO was a medical student of (UST). With Robert Chan and Alberto Leonardo, he was likewise a member of the Tau Sigma Phi Fraternity . MALOU, , was known to him being also a medical student at the UST at the time. From Room 306 of the Celestial Marie Building , CHITO, wearing the prescribed barong tagalog over dark pants and leather shoes, arrived at their Fraternity house located at Dos Castillas, Sampaloc, Manila at about 7 oclock in the evening of December 12, 1991. He was included in the entourage of some fifty (50) fraternity members scheduled for a Christmas gathering at the house of their senior fraternity brother, Dr. Jose Duran, at No. 3 John Street, North Greenhills, San Juan. xxx. The party was conducted at the garden beside [the] swimming pool . Soon after, the four (4) presidential nominees of the Fraternity, CHITO included, were being dunked one by one into the pool. xxx. xxx CHITO had anticipated his turn and was thus wearing his t-shirt and long pants when he was dunked. Perla Duran, , offered each dry clothes to change into and CHITO put on the white t-shirt with the Fraternitys symbol and a pair of black shorts with stripes. xxx . Again riding on Albertos car and wearing "barong tagalog over a white tshirt with the symbol TAU Sigma Phi, black short pants with stripe, socks

and shoes" (TSN, April 25, 1994, p. 15), CHITO left the party with Robert Chan and Alberto at more or less past 1 A.M. of December 13, 1991 and proceeded to the Building which they reached at about 1:30 A.M. (Ibid., p. 19). He had left his gray traveling bag containing "white t-shirt, sando, underwear, socks, and toothbrush (Ibid., pp. 17-18) at room 306 in the afternoon of the previous day . At the gate of the Building, CHITO knocked and , S/G Ferolin, looking at his watch, approached. Because of this, CHITO also looked at his own watch and saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin initially refused CHITO entry . xxx. S/G Ferolin called Unit 306 . xxx. When S/G Ferolin finally let him in, already about ten (10) minutes had lapsed since CHITO first arrived (Ibid., p. 25). CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie window and for five (5) minutes vainly tried to open the door until Rommel Montes, approached him and even commented: "Okey ang suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried to open the door of Unit 306 but was likewise unsuccessful. CHITO then decided to just call out to Joseph while knocking at the door. It took another (5) minutes of calling out and knocking before Joseph, , at last answered the door. Telling him, "Ikaw na ang bahala diyan" Joseph immediately turned his back on CHITO and went inside the bedroom. CHITO , changed to a thinner shirt and went to bed. He still had on the same short pants given by Perla Duran from the fraternity party (TSN, June 16, 1994, p. 20). At 6 oclock in the morning of December 13, 1991, CHITO woke up . He was already in his school uniform when, around 6:30 A.M, Joseph came to the room not yet dressed up. He asked the latter why this was so and, without elaborating on it, Joseph told him that something had happened and to just go to Room 310 which CHITO did. At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to identify, went to the room of MALOU and tried to rape her (TSN, April 25, 1994, p. 36). xxx. Joseph told him that the security guard was not letting anybody out of the Building . When two (2) CIS men came to the unit asking for Renato Baleros, CHITO presented himself. Congressman Rodolfo B. Albano, father of MALOU, then asked him for the key to Room 306. xxx xxx xxx

The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and the two (2) of them, CHITO and Joseph, were brought to Camp Crame. When they arrived at Camp Crame , Col. Managuelod asked Joseph inside his room and talked to him for 30 minutes. xxx. No one interviewed CHITO to ask his side. xxx xxx xxx Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo physical examination at the Camp Crame Hospital .. At the hospital, CHITO and Joseph were physically examined by a certain Dr. de Guzman who told them to strip . xxx xxx xxx CHITO had left his gray bag containing, among others, the black striped short pants lent to him by Perla Duran (Exhibit "8-A", Original Records, p. 345), inside Room 310 at more/less 6:30 to 7 oclock in the morning of December 13, 1991. The next time that he saw it was between 8 to 9 P.M. when he and Joseph were brought before Fiscal Abesamis for inquest. One of the CIS agents had taken it there and it was not opened up in his presence but the contents of the bag were already laid out on the table of Fiscal Abesamis who, however, made no effort to ask CHITO if the items thereat were his. The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag which he had left at Room 306 in the early evening of December 12, 1991 before going to the fraternity house. He likewise disavowed placing said black Adidas short pants in his gray bag when he returned to the apartment at past 1:00 oclock in the early morning of December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he dressed up at about 6 oclock in the morning to go to school and brought his gray bag to Room 310 (Ibid. 25). In fact, at any time on December 13, 1991, he was not aware that his gray bag ever contained any black short Adidas pants (Ibid). He only found out for the first time that the black Adidas short pants was alluded to be among the items inside his gray bag late in the afternoon, when he was in Camp Crame. Also taking the witness stand for the defense were petitioners fraternity brothers, Alberto Leonardo and Robert Chan, who both testified being with CHITO in the December 12, 1991 party held in Dr. Durans place at Greenhills, riding on the same car going to and coming from the party and dropping the petitioner off the Celestial Marie building after the party. Both were one in saying that CHITO was wearing a barong tagalog, with t-shirt inside, with short pants and leather shoes at the time they parted after the

party.7 Rommel Montes, a tenant of Room 310 of the said building, also testified seeing CHITO between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open the door of Room 306 while clad in dark short pants and white barong tagalog. On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes after the dunking party held in her fathers house.8 Presented as defense expert witness was Carmelita Vargas, a forensic chemistry instructor whose actual demonstration in open court showed that chloroform, being volatile, evaporates in thirty (30) seconds without tearing nor staining the cloth on which it is applied.9 On December 14, 1994, the trial court rendered its decision10 convicting petitioner of attempted rape and accordingly sentencing him, thus: WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused Renato D. Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of the crime of attempted rape as principal and as charged in the information and hereby sentences him to suffer an imprisonment ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of Prision Correctional, as Minimum to TEN (10) YEARS of Prision Mayor as Maximum, with all the accessory penalties provided by law, and for the accused to pay the offended party Martina Lourdes T. Albano, the sum of P50,000.00 by way of Moral and exemplary damages, plus reasonable Attorneys fees of P30,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs. SO ORDERED. Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR No. 17271. As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed the trial courts judgment of conviction, to wit: WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the decision appealed from is hereby AFFIRMED in toto. Costs against appellant. SO ORDERED.11 Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed resolution of March 31, 1999.12 Petitioner is now with this Court, on the contention that the CA erred 1. In not finding that it is improbable for petitioner to have committed the attempted rape imputed to him, absent sufficient, competent and convincing evidence to prove the offense charged.

2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence since the prosecution failed to satisfy all the requisites for conviction based thereon. 3. In not finding that the circumstances it relied on to convict the petitioner are unreliable, inconclusive and contradictory. 4. In not finding that proof of motive is miserably wanting in his case. 5. In awarding damages in favor of the complainant despite the fact that the award was improper and unjustified absent any evidence to prove the same. 6. In failing to appreciate in his favor the constitutional presumption of innocence and that moral certainty has not been met, hence, he should be acquitted on the ground that the offense charged against him has not been proved beyond reasonable doubt. Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred in affirming the ruling of the RTC finding petitioner guilty beyond reasonable doubt of the crime of attempted rape. After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the Court is disposed to rule for petitioners acquittal, but not necessarily because there is no direct evidence pointing to him as the intruder holding a chemical-soaked cloth who pinned Malou down on the bed in the early morning of December 13, 1991. Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. There are two types of positive identification. A witness may identify a suspect or accused as the offender as an eyewitness to the very act of the commission of the crime. This constitutes direct evidence. There may, however, be instances where, although a witness may not have actually witnessed the very act of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a crime as when, for instance, the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. This is the second type of positive identification, which forms part of circumstantial evidence.13 In the absence of direct evidence, the prosecution may resort to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret and under condition where concealment is highly probable. If direct evidence is insisted under all circumstances, the prosecution of vicious felons who committed heinous crimes in secret or secluded places will be hard, if not well-nigh impossible, to prove.14

Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence may be sufficient for conviction. The provision reads: Sec. 4. Circumstantial evidence, when sufficient Circumstantial evidence is sufficient for conviction if a) There is more than one circumstance; b) The facts from which the inferences are derived are proven; and c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. In the present case, the positive identification of the petitioner forms part of circumstantial evidence, which, when taken together with the other pieces of evidence constituting an unbroken chain, leads to only fair and reasonable conclusion, which is that petitioner was the intruder in question. We quote with approval the CAs finding of the circumstantial evidence that led to the identity of the petitioner as such intruder: Chito was in the Building when the attack on MALOU took place. He had access to the room of MALOU as Room 307 where he slept the night over had a window which allowed ingress and egress to Room 306 where MALOU stayed. Not only the Building security guard, S/G Ferolin, but Joseph Bernard Africa as well confirmed that CHITO was wearing a black "Adidas" shorts and fraternity T-shirt when he arrived at the Building/Unit 307 at 1:30 in the morning of December 13, 1991. Though it was dark during their struggle, MALOU had made out the feel of her intruders apparel to be something made of cotton material on top and shorts that felt satin-smooth on the bottom. From CHITOs bag which was found inside Room 310 at the very spot where witness Renato Alagadan saw CHITO leave it, were discovered the most incriminating evidence: the handkerchief stained with blue and wet with some kind of chemicals; a black "Adidas" satin short pants; and a white fraternity T-shirt, also stained with blue. A different witness, this time, Christian Alcala, identified these garments as belonging to CHITO. As it turned out, laboratory examination on these items and on the beddings and clothes worn by MALOU during the incident revealed that the handkerchief and MALOUs night dress both contained chloroform, a volatile poison which causes first degree burn exactly like what MALOU sustained on that part of her face where the chemical-soaked cloth had been pressed. This brings the Court to the issue on whether the evidence adduced by the prosecution has established beyond reasonable doubt the guilt of the petitioner for the crime of attempted rape.

The Solicitor General maintained that petitioner, by pressing on Malous face the piece of cloth soaked in chemical while holding her body tightly under the weight of his own, had commenced the performance of an act indicative of an intent or attempt to rape the victim. It is argued that petitioners actuation thus described is an overt act contemplated under the law, for there can not be any other logical conclusion other than that the petitioner intended to ravish Malou after he attempted to put her to an induced sleep. The Solicitor General, echoing what the CA said, adds that if petitioners intention was otherwise, he would not have lain on top of the victim.15 Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal knowledge or intercourse with 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 or is demented. Under Article 6, in relation to the aforementioned article of the same 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.16 Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in People vs. Lamahang,17 stated that "the attempt which the Penal Code punishes is that which has a logical connection to a particular, concrete offense; that which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and consummation." Absent the unavoidable connection, like the logical and natural relation of the cause and its effect, as where the purpose of the offender in performing an act is not certain, meaning the nature of the act in relation to its objective is ambiguous, then what obtains is an attempt to commit an indeterminate offense, which is not a juridical fact from the standpoint of the Penal Code.18 There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the present case. The next question that thus comes to the fore is whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou, constitutes an overt act of rape.1avvphil.net Overt or external act has been defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles

nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense.19 Harmonizing the above definition to the facts of this case, it would be too strained to construe petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which would induce her to sleep as an overt act that will logically and necessarily ripen into rape. As it were, petitioner did not commence at all the performance of any act indicative of an intent or attempt to rape Malou. It cannot be overemphasized that petitioner was fully clothed and that there was no attempt on his part to undress Malou, let alone touch her private part. For what reason petitioner wanted the complainant unconscious, if that was really his immediate intention, is anybodys guess. The CA maintained that if the petitioner had no intention to rape, he would not have lain on top of the complainant. Plodding on, the appellate court even anticipated the next step that the petitioner would have taken if the victim had been rendered unconscious. Wrote the CA: The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual organ is not yet exposed because his intended victim is still struggling. Where the intended victim is an educated woman already mature in age, it is very unlikely that a rapist would be in his naked glory before even starting his attack on her. He has to make her lose her guard first, or as in this case, her unconsciousness.20 At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule on evidence in criminal cases. For, mere speculations and probabilities cannot substitute for proof required to establish the guilt of an accused beyond reasonable doubt.21 In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of attempted rape, pointing out that: xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than his own spontaneous desistance, the penetration, however, slight, is not completed. xxx xxx xxx Petitioners act of lying on top of the complainant, embracing and kissing her, mashing her breasts, inserting his hand inside her panty and touching her sexual organ, while admittedly obscene and detestable acts, do not constitute attempted rape absent any showing that petitioner actually commenced to force his penis into the complainants sexual organ. xxx. Likewise in People vs. Pancho,23 the Court held:

xxx, appellant was merely holding complainants feet when his Tito Onio arrived at the alleged locus criminis. Thus, it would be stretching to the extreme our credulity if we were to conclude that mere holding of the feet is attempted rape. Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of any wrongdoing whatsoever. The information filed against petitioner contained an allegation that he forcefully covered the face of Malou with a piece of cloth soaked in chemical. And during the trial, Malou testified about the pressing against her face of the chemical-soaked cloth and having struggled after petitioner held her tightly and pinned her down. Verily, while the series of acts committed by the petitioner do not determine attempted rape, as earlier discussed, they constitute unjust vexation punishable as light coercion under the second paragraph of Article 287 of the Revised Penal Code. In the context of the constitutional provision assuring an accused of a crime the right to be informed of the nature and cause of the accusation,24 it cannot be said that petitioner was kept in the dark of the inculpatory acts for which he was proceeded against. To be sure, the information against petitioner contains sufficient details to enable him to make his defense. As aptly observed by then Justice Ramon C. Aquino, there is no need to allege malice, restraint or compulsion in an information for unjust vexation. As it were, unjust vexation exists even without the element of restraint or compulsion for the reason that this term is broad enough to include any human conduct which, although not productive of some physical or material harm, would unjustly annoy or irritate an innocent person.25 The paramount question is whether the offenders act causes annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is directed.26 That Malou, after the incident in question, cried while relating to her classmates what she perceived to be a sexual attack and the fact that she filed a case for attempted rape proved beyond cavil that she was disturbed, if not distressed by the acts of petitioner. The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal Code is arresto menor or a fine ranging from P5.00 to P200.00 or both. WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial Court of Manila, is hereby REVERSED and SET ASIDE and a new one entered ACQUITTING petitioner Renato D. Baleros, Jr. of the charge for attempted rape. Petitioner, however, is adjudged GUILTY of light coercion and is accordingly sentenced to 30 days of

arresto menor and to pay a fine of P200.00, with the accessory penalties thereof and to pay the costs. SO ORDERED. CANCIO C. GARCIA Associate Justice WE CONCUR: REYNATO S. PUNO Associate Justice Chairperson ( On Leave ) RENATO C. ANGELINA SANDOVALCORONA GUTIERREZ* Asscociate Justice Associate Justice ADOLFO S. AZCUNA Associate Justice ATTESTATION I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Courts Division. REYNATO S .PUNO Associate Justice Chairperson, Second Division CERTIFICATION Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman's Attestation, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. ARTEMIO V. PANGANIBAN Chief Justice Footnotes * On Leave. 1 Penned by Associate Justice Martin S. Villarama, Jr. and concurred in by Associate Justices Romeo A. Brawner (ret.) and Eloy R. Bello, Jr. (ret.); Rollo, pp. 198-237. 2 Id., p. 273. 3 Id., pp. 120-155. 4 Original Records, pp. 1-3. 5 Id., p. 42.

6 7

Rollo, pp. 201-212. TSN, December 15, 1993, pp. 18-19; TSN, December 20, 1993, pp. 23-24. 8 TSN, January 17, 1994, pp. 7-10. 9 TSN, January 17, 1994, p. 24. 10 Rollo, pp. 120-155. 11 See Note #1, supra. 12 See Note #2, supra. 13 People vs. Cubcubin, Jr., 413 Phil. 249 (2001), citing People vs. Gallarde, 382 Phil. 718 (2000). 14 People vs. Sevileno, 425 SCRA 247 (2004), citing People vs. Navarro, 407 SCRA 221 (2003). 15 Comment, pp. 20-21; Rollo, pp. 302-303. 16 People vs. Campuhan, 385 Phil. 912 (2000). 17 61 Phil. 703, 705 (1935). 18 Ibid. 19 Reyes, The Revised Penal Code, 1998 Edition, p. 91. 20 Rollo, pp. 222-223. 21 People vs. Canlas, et al., 423 Phil. 665 (2001). 22 431 Phil. 786 (2002). 23 416 SCRA 506 (2003). 24 Sec. 14(2), Art. III. 25 Aquino, Revised Penal Code, 1997 ed., Vol. III, p. 81. 26 Ibid., citing People vs. Lilian Gozum, CA 54 O.G. 7409; People vs. Reyes, 60 Phil. 369 [1934].

LINK:

http://www.lawphil.net/judjuris/juri2006/feb2006/gr_13 8033_2006.html

SECOND DIVISION [G.R. Nos. 138943-44. September 17, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HENRY ALMAZAN, accused-appellant. DECISION BELLOSILLO, J This is an appeal from the Joint Decision[1] of the trial court declaring accused-appellant Henry Almazan guilty of murder and frustrated murder. It traces its origin to two (2) Informations charging Henry Almazan with shooting Noli S. Madriaga with a handgun, aggravated by treachery and evident premeditation, which caused the latter's death; and with shooting Noel Madriaga with the same handgun which would have produced the latters death if not for timely medical attendance, docketed as Crim. Cases Nos. C-51276 and C-51277 respectively. These cases were tried jointly pursuant to Sec. 14, Rule 119, of the 1985 Rules on Criminal Procedure. On 28 September 1996, at about 4:00 o'clock in the afternoon, Vicente Madriaga and a certain Allan played chess in front of the former's house at Pag-asa, Camarin, Caloocan City. Spectators were Vicente's son Noli, who was carrying his 2-year old daughter, Vicente's grandson Noel, and a neighbor named Angel Soliva. While the game was underway, Henry Almazan unexpectedly arrived and brandished a .38 caliber revolver in front of the group. Almazan's fighting cocks had just been stolen and he suspected Angel, one of the spectators, to be the culprit. Thus he said, "manos-manos na lang tayo,"[2] aimed his gun at Angel and pulled the trigger. It did not fire. He tried again, but again it failed. At this juncture, Vicente Madriaga stood up and tried to calm down Henry, but the latter refused to be pacified ("ayaw paawat"). Angel ran away and Henry aimed his gun instead at Noli. Noli cried for mercy, for his life and that of his daughter, but to no avail.[3] Henry shot Noli at the left side of his stomach sending him immediately to the ground. His daughter, unscathed, held on to Noli, crying. Henry then turned on Noel and shot him on the left thigh. Noel managed to walk lamely ("paika-ika") but only to eventually fall to the ground. Thereafter, Vicente Madriaga called on his neighbors who brought Noli and Noel to the hospital. Noli however died before reaching the hospital, while Noel survived his injuries. Dr. Ma. Cristina Freyra of the PNP Crime Laboratory Service conducted an autopsy on the body of Noli which revealed that the cause of the victim's death was a gunshot at the trunk from a .38 caliber revolver. Dr. Misael Jonathan Ticman, attending physician of Noel, in turn declared that the gunshot wound on the left thigh of Noel was a minor injury that would heal in a week.[4] Noel was never admitted in the hospital as his doctor sent him

home the same day.[5]On cross-examination, Dr. Ticman testified that if not medically treated the wound might get infected or lead to the victim's death.
[6]

Witnesses for the defense narrated a different version. They pointed to Angel Soliva instead as the person to blame for Noli Madriaga's death while justifying Noel Madriaga's wound as a result of self-defense. Henry Almazan testified that at about 4:00 oclock in the afternoon of 28 September 1996 he went home accompanied by his friend Johnald Molina. Henry's wife informed him upon his return that his fighting cocks, twelve (12) in number, had been stolen. He went out of the house to inquire from neighbors as to who could have taken his cocks. He was followed by Johnald. On their way they saw Vicente Madriaga and Allan playing chess surrounded by Noli, Noel, Angel and other persons. They were drinking liquor. As he (Almazan) and Johnald were passing by, Angel called Henry and asked if he was looking for his fighting cocks. The group then burst into laughter and pointed to their pulutan. Someone in the group advised Henry not to look anymore for his fighting cocks as he would only be courting trouble ("naghahanap ka lang ng sakit ng katawan"). To this advice Henry replied, "Bakit naman ganoon?" Suddenly, Angel pulled out his gun and shot Henry twice but the gun did not fire. Seizing the opportunity Henry grappled with Angel for the possession of his gun. During the scuffle Angel pulled the trigger which hit Noli. Henry finally succeeded in wresting the gun from Angel and aimed it at him. Suddenly, he received a blow from behind and he fell. As he raised his head from the ground, he saw Noel poised to attack him with a broken bottle, so that he had to train his gun at the lower part of Noel's body and fired. The bullet hit Noel on the thigh which sent him reeling down his knees ("napaluhod"). Shocked and afraid that he hit Noel, Henry ran home. Johnald Molina corroborated Henry Almazan's statement in all material points. Johnald testified that the group mocked Henry when they told him not to look for his cocks anymore as they had already been cooked for pulutan, and to insist in his search would only cause him physical trouble. Henry could only reply, "Tila nga may nagnakaw ng mga manok ko . . . . Bakit naman ganoon?" As he made his remarks, someone from the group suddenly pulled out a gun and aimed at Henry. Henry grappled with the gun-wielder who pressed the trigger twice but the gun misfired each time. When the gun-wielder pulled the trigger for the third time it fired, hitting a person who was carrying a small child and standing within the vicinity. He was obviously referring to Noli. Johnald immediately ran towards Henry's house to report the incident to his wife and asked for

help. Then he heard another shot, but in his haste to reach Henry's house he ignored it. Upon reaching Henry's house, Henry also arrived. To avoid being involved and out of fear, Johnald did not report the incident to the police. Later however, bothered by his conscience and being the friend of Henry, Johnald volunteered to testify on what he knew of the incident. The court a quo found Henry Almazan's defense devoid of merit. Apart from being positively identified by the prosecution witnesses as the person responsible for the violence and the injuries inflicted, the trial court declared that the theft of Henry's fighting cocks constituted sufficient motive for the killing and that as a cockfight afficionado he must have found it imperative to exact vengeance on his suspected culprits.[7] The trial court held that the testimony of Johnald failed to create reasonable doubt on the guilt of Henry since as a friend he was expected to extend succor to a friend, especially one in need.[8] Thus, the trial court held Henry Almazan guilty of murder and frustrated murder as charged. In imposing the penalty for each offense, the lower court appreciated the qualifying circumstance of treachery against accused-appellant on the ground that the victims were completely defenseless when attacked and did not commit the slightest provocation, but found no justification for evident premeditation as there was no proof as to the manner and time during which the plan to kill was hatched. On the contrary, the trial court found in favor of accused-appellant the mitigating circumstance of passion and obfuscation. Thus, in Crim. Case No. C-51276, accused-appellant was sentenced to the reduced penalty of reclusion perpetua instead of death, with all the accessory penalties according to law, and ordered to pay the heirs of the victim P50,000.00 as death indemnity,P8,000.00 as funeral expenses, and to pay the costs; while in Crim. Case No. C-51277, he was sentenced to an indeterminate prison term of eight (8) years ofprision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum, with all the accessory penalties provided by law, and to pay P20,000.00 as civil indemnity, without subsidiary imprisonment in case of insolvency, and to pay the costs.[9] Accused-appellant now prays to be absolved of murder in Crim. Case No. C-51276 on the ground that the prosecution has failed to prove his guilt beyond reasonable doubt. He assails the testimony of Shirley Abordo, common-law wife of Nilo Madriaga, for being hearsay, as well as the testimony of Vicente Madriaga for its alleged inconsistencies in various vital points. Significantly, accused-appellant impugns the veracity of the prosecution's evidence for its failure to present Angel Soliva who was primarily involved in the incident and whom the defense points to as the

real transgressor. Thus, accused-appellant contends that evidence sufficient to establish the absolute and moral certainty of his guilt being absent he should be acquitted. As for Crim. Case No. C-51277, accused-appellant contends that the trial court erred in holding him guilty of frustrated murder as the wound sustained by Noel Madriaga was not fatal that could have caused his death if not for timely medical assistance. Moreover, accused-appellant claims that he shot Noel only to forestall any attack on him and not to kill Noel intentionally. Appellate courts are doctrinally bound by the trial court's assessment of the credibility of witnesses given the clear advantage of a trial judge in the appreciation of testimonial evidence. The trial court is in the best position to assess the credibility of witnesses and their testimonies because of its unique opportunity to observe the witnesses first-hand and to note their demeanor, conduct and attitude under grueling examination - factors which are significant in the evaluation of the sincerity of witnesses and in unearthing the truth.[10] We see no reason to depart from this doctrine. The witnesses for the prosecution were consistent in their narration of the manner by which the events transpired, and they remained steadfast in their identification of accused-appellant as the author of the violence. Despite attempts to confound them, Vicente Madriaga and Noel Madriaga were relentless in their declaration that it was accused-appellant, armed with a .38 caliber revolver, who pounced upon them without warning thereby killing Noli Madriaga and wounding Noel Madriaga in the process. They were one in their assertion that accused-appellant was inflamed by his suspicion that Angel Soliva and Noel Madriaga had stolen his fighting cocks and was intent on getting even with them, thus he fired at them. Efforts to pass the blame on the group by claiming that in their inebriated state they mocked accused-appellant and thus initiated the violence were actually set to naught as Vicente and Noel Madriaga unfailingly denied the same. True, Shirley Abordo's testimony was spattered with inconsistencies bordering at times on incoherence. As she herself admitted, her narration was merely derived from the accounts of the other prosecution witnesses and not from her own perception of the events. This constitutes hearsay, which we then reject. Be that as it may, these alleged inconsistencies are immaterial and irrelevant as they do not alter the determination of the Court that murder was committed and accused-appellant was the assailant. For a discrepancy to serve as basis for acquittal, it must refer to significant facts vital to the guilt or innocence of the accused. An inconsistency, which has

nothing to do with the elements of the crime, cannot be a ground to reverse a conviction.[11] In the same vein, the testimony of Angel Soliva or of Allan, with whom Vicente Madriaga was playing chess, is unnecessary as the facts on record are clear enough for judicial assessment and verdict. The defense suggests that it could be Angel Soliva instead who shot Noli Madriaga. This is unacceptable in the face of the positive identification of the accused by the prosecution witnesses. The allegation that the shooting was the accidental consequence of the struggle between accused-appellant and Angel Soliva does not inspire belief as no substantial evidence was presented to prove it. It is highly improbable that a struggle even occurred as accused-appellant and Angel Soliva were surrounded by the latter's friends who would have easily ganged up on accusedappellant. Testimonial evidence to be credible should not only come from the mouth of a credible witness but should also be credible, reasonable and in accord with human experience,[12] failing in which, it should be rejected. Indeed, Johnald Molina corroborated the statement of accused-appellant pointing at Angel Soliva as the real culprit; however, we are inclined to agree with the observation of the court a quo that it was natural for an individual to exert effort in liberating his friend from confinement or execution, even to the extent of distorting the truth. It is significant to note that accused-appellant went into hiding after the shooting incident and was only collared by the agents from the Western Police District eight (8) months later. Flight indeed is an indication of guilt, especially when accused-appellant failed to sufficiently explain why he left his residence and resurrected only several months after. The trial court properly appreciated the presence of treachery as the attack was made upon the unarmed victims who had not committed the slightest provocation and who were totally unaware of the murderous designs of accused-appellant. Contrary to the finding of the court a quo, treachery in this case qualifies the offense to murder, hence, may not be considered a generic aggravating circumstance to increase the penalty from reclusion perpetua to death. In other words, while the imposable penalty for murder is reclusion perpetua to death, in the absence of any mitigating or aggravating circumstance, the lesser penalty of reclusion perpetua shall be imposed. The mitigating circumstance of passion and obfuscation cannot be appreciated in favor of accused-appellant as this was never proved during the trial. As for Crim. Case No. C-51277, accused-appellant admits responsibility for the injuries inflicted on Noel but reasons out that he did so only to defend

himself. Accused-appellant therefore pleads self-defense, a justifying circumstance that could acquit him of the charge but which we are not disposed to grant as the elements necessary to qualify his actions[13] were not present. In alleging that the killing arose from an impulse to defend oneself, the onus probandi rests upon accused-appellant to prove by clear and convincing evidence the elements thereof: (a) that there was unlawful aggression on the part of the victim; (b) that there was reasonable necessity for the means employed to prevent or repel it; and, (c) that there was lack of sufficient provocation on the part of the defendant.[14] This, it has failed to discharge. Nevertheless, we find that the accused-appellant should be held liable for attempted murder, not frustrated murder. For the charge of frustrated murder to flourish, the victim should sustain a fatal wound that could have caused his death were it not for timely medical assistance. This is not the case before us. The court a quo anchored its ruling on the statement of Dr. Ticman on cross-examination that the wound of Noel could catch infection or lead to his death if not timely and properly treated. However, in his direct testimony, Dr. Ticman declared that the wound was a mere minor injury for which Noel, after undergoing treatment, was immediately advised to go home.[15] He even referred to the wound as a slight physical injury that would heal within a week[16] and for which the victim was in no danger of dying.[17] Clear as the statement is, coupled with the fact that Noel was indeed immediately advised to go home as he was not in any danger of death, we have no reason to doubt the meaning and implications of Dr. Ticman's statement. His statement that Noel could catch infection was based on pure speculation rather than on the actual nature of the wound which was a mere minor injury, hence, not fatal. According to jurisprudence, if the victim was wounded with an injury that was not fatal, and could not cause his death, the crime would only be attempted.[18] The observation that the conviction should be for slight physical injuries only is likewise improper as the accused-appellant was motivated by the same impetus and intent, i.e., to exact vengeance and even kill, if necessary, when he shot Noel Madriaga. The fact that the wound was merely a minor injury which could heal in a week becomes inconsequential. In the final analysis, there being no mitigating nor aggravating circumstance and the more appropriate offense being attempted murder, accusedappellant should be meted a penalty two (2) degrees lower than the prescribed penalty of reclusion perpetua, which is prision mayor the range of which is six (6) years and one (1) day to twelve (12) years. Applying the Indeterminate Sentence Law in the case for attempted murder, the

maximum shall be taken from the medium period of prision mayor, which is eight (8) years and one (1) day to ten (10) years, while the minimum shall be taken from the penalty next lower in degree, or prision correccional, in any of its periods, the range of which is six (6) months and one (1) day to six (6) years. WHEREFORE, the Joint Decision of the trial court of 15 June 1999 finding accused-appellant HENRY ALMAZAN guilty of Murder in G.R. No. 138943 (Crim. Case No. C-51276) and sentencing him to reclusion perpetua with its accessory penalties, and to pay the heirs of Noli Madriaga P50,000.00 as death indemnity, P8,000.00 as funeral expenses, and to pay the costs, is AFFIRMED. However, his conviction for Frustrated Murder in G.R. No. 138944 (Crim. Case No. C-51277) is MODIFIED by lowering the crime to Attempted Murder and he is sentenced accordingly to an indeterminate prison term of two (2) years, four (4) months and ten (10) days of prision correccional medium as minimum, to eight (8) years two (2) months and twenty (20) days of prision mayor medium as maximum, and to pay the offended party Noel Madriaga the amount of P20,000.00 as civil indemnity, and to pay the costs. SO ORDERED. Mendoza, Quisumbing, Buena, and De Leon, Jr., concur.
[1]

[13] [14]

Art. 11, par. (1), RPC. People v. Molina, G.R. Nos. 115835-36, 22 July 1998, 292 SCRA 742. [15] See Note 4. [16] See Note 5. [17] TSN, 14 October 1998, p. 7. [18] People v. Pilones, Nos. L-32754-44, 21 July 1978, 84 SCRA 167; People v. Tamani, Nos. L-22160-61, 21 January 1974, 55 SCRA 153. LINK:

http://sc.judiciary.gov.ph/jurisprudence/2001/sep2001/ 138943_44.htm

Joint Decision penned by Judge Bayani S. Rivera, RTC, Br. 129, Caloocan City. [2] "Tabla-tabla na lang tayo!" according to the testimony of Noli Madriaga, TSN, 7 May 1998, p. 4. [3] TSN, 29 April 1998, p. 7. [4] TSN, 14 October, 1998, p. 6. [5] Id., pp. 7-8. [6] Id., p. 8. [7] Rollo, p. 152. [8] Id., p. 154. [9] Rollo, pp. 155-156. [10] People v. Benito, G.R. No. 128072, 19 February 1999; People v. Sabalones, et al., G.R. No. 123485, 31 August 1998; People v. Victor, G.R. No. 127903, 9 July 1998. [11] People v. Antonio, et al., G.R. No. 128149, 24 July 2000, citing People v. Bato, G.R. No. 134939, 16 February 2000; People v. Sancha, G.R. Nos. 131818-19, 3 February 2000. [12] People v. Atad, G.R. No. 114105, 16 January 1997, 266 SCRA 262.

FIRST DIVISION [G.R. No. 122099. July 5, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGAPITO LISTERIO y PRADO and SAMSON DELA TORRE y ESQUELA, accused, AGAPITO LISTERIO y PRADO, accused-appellant. DECISION YNARES-SANTIAGO, J.: For the deadly assault on the brothers Jeonito Araque and Marlon Araque, Agapito Listerio y Prado, Samson dela Torre y Esquela, Marlon dela Torre, George dela Torre, Bonifacio Bancaya and several others who are still at large were charged in two (2) separate Amended Informations with Murder and Frustrated Murder. In Criminal Case No. 91-5842 the Amended Information[1] for Murder alleges That on or about the 11th day of August 1991 in the Municipality of Muntinlupa, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding one another, all armed with bladed weapons and GI lead pipes, with intent to kill, treachery and evident premeditation with abuse of superior strength did then and there willfully, unlawfully and feloniously attack, assault and stab one Jeonito Araque y Daniel at the back of his body, thereby inflicting upon the latter mortal wounds which directly caused his death. CONTRARY TO LAW. In Criminal Case No. 91-5843, the Amended Information[2] for Frustrated Homicide charges: That on or about the 14th day of May 1991 in the Municipality of Muntinlupa, Metro Manila, Philippines and within the jurisdiction this Honorable Court, the above-named accused, conspiring, confederating together, mutually helping and aiding one another, with intent to kill did then and there willfully, unlawfully and feloniously stab and hit with a lead pipe and bladed weapon one Marlon Araque y Daniel on the vital portions of his body, thereby inflicting serious and mortal wounds which would have cause[d] the death of the said victim thus performing all the acts of execution which should have produce[d] the crime of Homicide as a consequence but nevertheless did not produce it by reason of causes independent of their will, that is by timely and able medical attendance rendered to said Marlon Araque y Daniel which prevented his death. CONTRARY TO LAW.

Upon arraignment, accused Agapito Listerio y Prado and Samson dela Torre y Esquela pleaded not guilty to the crimes charged. Their other coaccused have remained at large. Trial thereafter ensued after which the court a quo rendered judgment only against accused Agapito Listerio because his co-accused Samson dela Torre escaped during the presentation of the prosecutions evidence and he was not tried in absentia. The dispositive portion of the decision[3] reads: WHEREFORE, finding Accused AGAPITO LISTERIO guilty beyond reasonable doubt, he is sentenced: 1. For the death of Jeonito Araque y Daniel in Criminal Case NO. 915842, RECLUSION PERPETUA; 2. For the attempt to kill Marlon Araque y Daniel, in Criminal Case No. 91-5843, he is sentenced to six (6) months and one (1) day as minimum, to four (4) years as maximum; 3. As civil indemnity, he is ordered to indemnify the heirs of Jeonito Araque y Daniel the sum[s] of : P54,200.66 as actual damages; P50,000.00 as moral damages; P5,000.00 as exemplary damages. 4. And for the damages sustained by Marlon Araque y Daniel, he is required to pay Marlon Araque y Daniel, the sum[s] of : P5,000.00 as actual damages; P5,000.00 as moral damages; and P5,000.00 as exemplary damages SO ORDERED.[4] Dissatisfied, accused Agapito Listerio interposed this appeal alleging that I THE PROSECUTION EVIDENCE FAILED TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT. II THE COURT CONVICTED THE ACCUSED OF THE CRIME OF MURDER AND ATTEMPTED HOMICIDE DESPITE ABSENCE OF PROOF OF CONSPIRACY AND AGGRAVATING CIRCUMSTANCE OF TREACHERY. The version of the prosecution of what transpired on that fateful day of August 14, 1991 culled from the eyewitness account of Marlon Araque discloses that at around 5:00 p.m. of August 14, 1991, he and his brother Jeonito were in Purok 4, Alabang, Muntinlupa to collect a sum of money from a certain Tino.[5] Having failed to collect anything from Tino, Marlon and Jeonito then turned back.[6] On their way back while they were passing

Tramo near Tinos place,[7] a group composed of Agapito Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre and Bonifacio Bancaya[8] blocked their path[9] and attacked them with lead pipes and bladed weapons.[10] Agapito Listerio, Marlon dela Torre and George dela Torre, who were armed with bladed weapons, stabbed Jeonito Araque from behind.[11] Jeonito sustained three (3) stab wounds on the upper right portion of his back, another on the lower right portion and the third on the middle portion of the left side of his back[12] causing him to fall down.[13] Marlon Araque was hit on the head by Samson dela Torre and Bonifacio Bancaya with lead pipes and momentarily lost consciousness.[14] When he regained his senses three (3) minutes later, he saw that Jeonito was already dead.[15] Their assailants then fled after the incident.[16] Marlon Araque who sustained injuries in the arm and back,[17] was thereafter brought to a hospital for treatment.[18] Marlon Araque was examined by Dr. Salvador Manimtim, head of the Medico Legal Division of the UP-PGH, [19] who thereafter issued a Medical Certificate[20] indicating that Marlon Araque sustained two (2) lacerated wounds, one measuring 5 centimeters in length located in the center (midparietal area) of the ear.[21] The second lacerated wound measuring 2 centimeters in length is located at the mid-frontal area commonly known as the forehead.[22] A third lacerated wound measuring 1.5 centimeters long is located at the forearm[23] and a fourth which is a stab wound measuring 3 centimeters is located at the right shoulder at the collar. [24] Elaborating on the nature of Marlon Araques injuries, Dr. Manimtim explained in detail during cross-examination that the two (2) wounds on the forearm and the shoulder were caused by a sharp object like a knife while the rest were caused by a blunt instrument such as a lead pipe.[25] Dr. Bievenido Munoz, NBI Medico Legal Officer conducted an autopsy on the cadaver of Jeonito Araque[26] and prepared an Autopsy Report[27] of his findings. The report which contains a detailed description of the injuries inflicted on the victim shows that the deceased sustained three (3) stab wounds all of them inflicted from behind by a sharp, pointed and singlebladed instrument like a kitchen knife,balisong or any similar instrument. [28] The first stab wound, measuring 1.7 centimeters with an approximate depth of 11.0 centimeters, perforated the lower lobe of the left lung and the thoracic aorta.[29] Considering the involvement of a vital organ and a major blood vessel, the wound was considered fatal.[30] The second wound, measuring 2.4 centimeters, affected the skin and underlying soft tissues and did not penetrate the body cavity.[31] The third wound measuring 2.7 centimeters was like the second and involved only the soft tissues. [32] Unlike

the first, the second and third wounds were non-fatal.[33] Dr. Munoz averred that of the three, the first and second wounds were inflicted by knife thrusts delivered starting below going upward by assailants who were standing behind the victim.[34] On the other hand, accused-appellants version of the incident is summed thus in his brief: 1. Accused-appellant is 39 years old, married, side walk vendor and a resident of Purok 4, Bayanan, Muntinlupa, Metro Manila. He earns a living by selling vegetables.[35] 2. At around 1:00 oclock in the afternoon of August 14, 1991, AccusedAppellant was in the store of Nimfa Agustin having a little fun with Edgar Demolador and Andres Gininao drinking beer. At around 2:00 oclock Accused-appellant went to his house and slept.[36] 3. While asleep, at about 5 oclock, Edgar Remolador and Andres Gininao woke him up and told him there was a quarrel near the railroad track.[37] 4. At around 6:00 oclock two (2) policemen passed by going to the house of Samson de la Torre while Accused-appellant was chatting with Edgar Remolador and Andres Gininao. These two (2) policemen together with coaccused Samson de la Torre came back and invited Accused-appellant for questioning at the Muntinlupa Police Headquarters together with Edgar Demolador and Andres Gininao. Subsequently, Edgar Demolador and Andres Gininao were sent home.[38] 5. At the Police Station, Accused-Appellant was handed a Sinumpaang Salaysay executed by Marlon Araque, implicating him for the death of Jeonito Araque and the frustrated murder of Marlon Araque. AccusedAppellant confronted Marlon Araque as to why he was being included in the case. Marlon Araque answered because you eject[ed] us from your house.[39] Professing his innocence, accused-appellant claims that Marlon Araques uncorroborated testimony failed to clearly and positively identify him as the malefactor responsible for his brothers death. In fine, he insists that Marlons testimony is insufficient to convict him of the crimes charged. We disagree. It is well settled that witnesses are to be weighed, not numbered, such that the testimony of a single, trustworthy and credible witness could be sufficient to convict an accused.[40] More explicitly, the well entrenched rule is that the testimony of a lone eyewitness, if found positive and credible by the trial court is sufficient to support a conviction especially when the testimony bears the earmarks of truth and sincerity and had been delivered spontaneously, naturally and in a straightforward manner. It has been held

that witnesses are to be weighed not numbered; hence, it is not at all uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness.[41] The trial court found Marlon Araques version of what transpired candid and straightforward. We defer to the lower courts findings on this point consistent with the oft-repeated pronouncement that: the trial judge is the best and the most competent person who can weigh and evaluate the testimony of witnesses. His firsthand look at the declarants demeanor, conduct and attitude at the trial places him in a peculiar position to discriminate between the true and the false. Consequently appellate courts will not disturb the trial courts findings save only in cases where arbitrariness has set in and disregard for the facts important to the case have been overlooked.[42] The account of Marlon Araque as to how they were assaulted by the group of accused-appellant was given in a categorical, convincing and straightforward manner: Q Mr. Witness, do you know a certain Jeonito Araque y Daniel? A Yes, sir. Q And why do you know him? A He is my brother. Q Where is Jeonito Araque now? A He is already dead. Q When did he die? A Last August 14. Q Do you know of your own knowledge how he died? A Yes, sir. Q Will you please inform the Honorable Court what is your own knowledge? A He was stabbed, sir. Q Do you know the person or persons who stabbed him? A Yes, sir. Q Will you please inform the Honorable Court who are these person or persons, if you know? A Its (sic) Agapito Listerio, Samson dela Torre, George dela Torre, Marlon dela Torre and Bonifacio. Q Now if these persons [are] inside the courtroom, could you identify them? A They (sic) are only two persons but the three persons is (sic) not around.

Q Could you please point to this Honorable Court who are these two persons in side the courtroom? A Yes, sir (Witness pointing to a persons [sic] and when asked [identified themselves as] Agapito Listerio and Samson dela Torre.) Q Now, at around 5:00 oclock in the afternoon of August 14, 1991, do you recall where were you? A Yes, sir. Q Will you please inform the Honorable Court where were you at that time? A Im in Alabang at Purok 4 and Im collecting. Q Do you have any companion at that time? A Yes, sir. Q What are you doing at that time in [that] particular date? A Im collecting from a certain Tino. Q Were you able to collect? A No, sir. Q If you said that there were no collections, what did you do? A We went back. Q When you went back, did you have any companion? A Yes, sir. Q Who was your companion? A My brother. Q While you were going back, was there any untoward incidents that happened? A Yes sir Hinarang po kami. Q Now, what particular place [where] you were waylaid, if you recall? A In Tramo, near Tinos place. Q And who were the persons that were waylaid (sic)? A Agapito Listerio, Samson dela Torre, George dela Torre and Bonifacio. Q Will you please inform the Honorable Court how will (sic) you waylaid by these persons? A We were walking then suddenly they stabbed us with knife (sic) and ran afterwards. Q Who were the persons that waylaid you? A Agapito Listerio, George and Marlon. Q How about your brother, what happened to him? A He fall (sic) down. Q And after he fall (sic) down, do you know what happened? A I was hit by a lead pipe thats why I painted (sic). Q Do you know the reason why your brother fall (sic) down?

A I cannot recall, sir. Because I already painted (sic). Q Do you know the reason why your brother fall (sic) before you painted (sic)? A Yes, sir. Q Will you please inform the Honorable Court why your brother fall (sic) down? xxx xxx xxx A Yes, sir, because he was stabbed. Q What particular place of his body was [he] stabbed if you know? A At the back of his body. Q Do you know the person or persons who was (sic) stabbed him? A Yes, sir. Q Will you please inform the Honorable Court who was that persons was stabbed him? A Agapito, Marlon and George. COURT How many stabbed [him], if you know? A Three (3), sir. COURT In what particular part of his body was stabbed wound (sic)? A Witness pointing to his back upper right portion of the back, another on the lower right portion and another on the middle portion of the left side at the back. COURT Proceed. Q Will you please inform the Honorable Court why you are (sic) lost consciousness? A I was hit by [a] lead pipe by Samson and Bonifacio. Q And when did you regain consciousness? A After three minutes. Q And when you gain[ed] consciousness, what happened to your brother? A He was already dead. Q How about you, what did you do? A I go (sic) to the Hospital. Q How about the accused, the persons who way laid, what happened to them? A From what I know, they ran away.[43] Persistent efforts by defense counsel to establish that the attack was provoked, by eliciting from Marlon Araque an admission that he and the deceased had a drinking spree with their attackers prior to the incident,

proved futile as Marlon steadfastly maintained on cross examination that he and his brother never drank liquor on that fateful day: Q After your work, was there an occasion when you drink something with your borther (sic)? A No, sir. Q And you stand to your testimony that you never drink (sic) on August 14, 1991? A Yes, sir. Q Were (sic) there no occasion on August 14, 1991 when you visited Sonny Sari-Sari Store at 4:00 p.m. on August 14, 1991? A No, sir. Q And did you not have a drinking spree with George dela Torre? A No, sir. Q Marlon dela Torre? A No, sir. Q Bonifacio? A With your borther (sic)? Q So you want to tell this Honorable Court that there was no point in time on August 14, 1991 at 4:00 p.m. that you did not take a sip of wine? A No, sir. Q Neither your brother? Atty. Agoot Objection, Your Honor, the question is vague. COURT Ask another question. Q Mr. Witness, will you please tell the Honorable Court where this George dela Torre, Marlon dela Torre and a certain Bonifacio were? Atty. Agoot Witness is incompetent. Q Mr. Witness, you testified that it was your brother the deceased who invited you to Purok 4? A Yes, sir. Atty. Lumakang That will be all for the witness, your Honor.[44] That Marlon was able to recognize the assailants can hardly be doubted because relatives of the victim have a natural knack for remembering the faces of the attackers and they, more than anybody else, would be concerned with obtaining justice for the victim by the felons being brought to the face of the law.[45] Indeed, family members who have witnessed the killing of a loved one usually strive to remember the faces of the assailants.

[46]

Marlons credibility cannot be doubted in this case because as a victim himself and an eyewitness to the incident, it can be clearly gleaned from the foregoing excerpts of his testimony that he remembered with a high degree of reliability the identity of the malefactors. [47] Likewise, there is no showing that he was motivated by any ill-feeling or bad blood to falsely testify against accused-appellant. Being a victim himself, he is expected to seek justice. It is settled that if the accused had nothing to do with the crime, it would be against the natural order of events to falsely impute charges of wrongdoing upon him.[48] Accused-appellant likewise insists on the absence of conspiracy and treachery in the attack on the victims. We remain unconvinced. It must be remembered that direct proof of conspiracy is rarely found for criminals do not write down their lawless plans and plots.[49]Conspiracy may be inferred from the acts of the accused before, during and after the commission of the crime which indubitably point to and are indicative of a joint purpose, concert of action and community of interest.[50] Indeed A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. To establish the existence of a conspiracy, direct proof is not essential since it may be shown by facts and circumstances from which may be logically inferred the existence of a common design among the accused to commit the offense charged, or it may be deduced from the mode and manner in which the offense was perpetrated.[51] More explicitly conspiracy need not be established by direct evidence of acts charged, but may and generally must be proved by a number of indefinite acts, conditions and circumstances, which vary according to the purpose accomplished. Previous agreement to commit a crime is not essential to establish a conspiracy, it being sufficient that the condition attending to its commission and the acts executed may be indicative of a common design to accomplish a criminal purpose and objective. If there is a chain of circumstances to that effect, conspiracy can be established.[52] Thus, the rule is that conspiracy must be shown to exist by direct or circumstantial evidence, as clearly and convincingly as the crime itself. [53] In the absence of direct proof thereof, as in the present case, it may be deduced from the mode, method, and manner by which the offense was perpetrated, or inferred from the acts of the accused themselves when such acts point to a joint purpose and design, concerted action and community of interest.[54] Hence, it is necessary that a conspirator should have performed

some overt acts as a direct or indirect contribution in the execution of the crime planned to be committed. The overt act may consist of active participation in the actual commission of the crime itself, or it may consist of moral assistance to his con-conspirators by being present at the commission of the crime or by exerting moral ascendancy over the other coconspirators.[55] Conspiracy transcends mere companionship, it denotes an intentional participation in the transaction with a view to the furtherance of the common design and purpose.[56] Conspiracy to exist does not require an agreement for an appreciable period prior to the occurrence.[57] From the legal standpoint, conspiracy exists if, at the time of the commission of the offense, the accused had the same purpose and were united in its execution.[58] In this case, the presence of accused-appellant and his colleagues, all of them armed with deadly weapons at the locus criminis, indubitably shows their criminal design to kill the victims. Nowhere is it more evident than in this case where accused-appellant and his cohorts blocked the path of the victims and as a group attacked them with lead pipes and bladed weapons. Accused-appellant and his companions acted in concert during the assault on the victims. Each member of the group performed specific and coordinated acts as to indicate beyond doubt a common criminal design or purpose.[59] Thus, even assuming arguendo that the prosecution eyewitness may have been unclear as to who delivered the fatal blow on the victim, accused-appellant as a conspirator is equally liable for the crime as it is unnecessary to determine who inflicted the fatal wound because in conspiracy, the act of one is the act of all.[60] As to the qualifying circumstances here present, the treacherous manner in which accused-appellant and his group perpetrated the crime is shown not only by the sudden and unexpected attack upon the unsuspecting and apparently unarmed victims but also by the deliberate manner in which the assault was perpetrated. In this case, the accused-appellant and his companions, all of them armed with bladed weapons and lead pipes, blocked (hinarang) the path of the victims effectively cutting off their escape.[61] In the ensuing attack, the deceased was stabbed three (3) times from behind by a sharp, pointed and single-bladed instrument like a kitchen knife, balisong or similar instrument[62] while Marlon Araque sustained lacerated wounds in the head caused by blows inflicted by lead pipes as well as stab wounds on the shoulder and forearm which were caused by a sharp object like a knife.[63]

It must be noted in this regard that the manner in which the stab wounds were inflicted on the deceased were clearly meant to kill without posing any danger to the malefactors considering their locations and the fact that they were caused by knife thrusts starting below going upward by assailants who were standing behind the victim.[64] Treachery is present when the offender commits any of the crimes against persons employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.[65] That circumstance qualifies the crime into murder. The commission of the crime was also attended by abuse of superior strength on account of the fact that accused-appellant and his companions were not only numerically superior to the victims but also because all of them, armed with bladed weapons and lead pipes, purposely used force out of proportion to the means of defense available to the persons attacked. However, this aggravating circumstance is already absorbed in treachery.[66] Furthermore, although alleged in the information, evident premeditation was not proved by the prosecution. In the light of the finding of conspiracy, evident premeditation need not be further appreciated, absent concrete proof as to how and when the plan to kill was hatched or what time had elapsed before it was carried out.[67] In stark contrast to the evidence pointing to him as one of the assailants of the victims, accused-appellant proffers the defense of alibi. At the risk of sounding trite, it must be remembered that alibi is generally considered with suspicion and always received with caution because it can be easily fabricated.[68] For alibi to serve as a basis for acquittal, the accused must establish that: a.] he was present at another place at the time of the perpetration of the offense; and b.] it would thus be physically impossible for him to have been at the scene of the crime.[69] Suffice it to state that accused-appellant failed to discharge this burden. The positive identification of the accused as one of the perpetrators of the crime by the prosecution eyewitness, absent any showing of illmotive, must prevail over the weak and obviously fabricated alibi of accused-appellant.[70] Furthermore, as aptly pointed out by the trial court [t]he place where the accused was at the time of the killing is only 100 meters away. The distance of his house to the place of the incident makes him physically possible to be a participant in the killing [of Jeonito] and [the] wounding of Marlon.[71]

All told, an overall scrutiny of the records of this case leads us to no other conclusion than that accused-appellant is guilty as charged for Murder in Criminal Case No. 91-5842. In Criminal Case No. 91-5843, wherein accused-appellant was indicted for Frustrated Homicide, the trial court convicted accused-appellant of Attempted Homicide only on the basis of Dr. Manimtims testimony that none of the wounds sustained by Marlon Araque were fatal. The reasoning of the lower court on this point is flawed because it is not the gravity of the wounds inflicted which determines whether a felony is attempted or frustrated but whether or not the subjective phase in the commission of an offense has been passed. By subjective phase is meant [t]hat 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 point where he voluntarily 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. [72] It must be remembered that a felony is frustrated when: 1.] the offender has performed all the acts of execution which would produce the felony; 2.] the felony is not produced due to causes independent of the perpetrators will. [73] On the other hand, in an attempted felony: 1.] the offender commits overt acts to commence the perpetration of the crime; 2.] he is not able to perform all the acts of execution which should produce the felony; and 3.] his failure to perform all the acts of execution was due to some cause or accident other than his spontaneous desistance.[74] The distinction between an attempted and frustrated felony was lucidly differentiated thus in the leading case of U.S. v. Eduave:[75] 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 the acts which should result in the consummation of the crime

and voluntarily desists from proceeding further, it cannot 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 crime and the moment when all 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 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. In relation to the foregoing, it bears stressing that intent to kill determines whether the infliction of injuries should be punished as attempted or frustrated murder, homicide, parricide or consummated physical injuries. [76] Homicidal intent must be evidenced by acts which at the time of their execution are unmistakably calculated to produce the death of the victim by adequate means.[77] Suffice it to state that the intent to kill of the malefactors herein who were armed with bladed weapons and lead pipes can hardly be doubted given the prevailing facts of the case. It also can not be denied that the crime is a frustrated felony not an attempted offense considering that after being stabbed and clubbed twice in the head as a result of which he lost consciousness and fell, Marlons attackers apparently thought he was already dead and fled. An appeal in a criminal case throws the whole case wide open for review[78] and the reviewing tribunal can correct errors, though unassigned in the appealed judgement[79] or even reverse the trial courts decision on the basis of grounds other than those that the parties raised as errors. [80] With the foregoing in mind, we now address the question of the proper penalties to be imposed. With regard to the frustrated felony, Article 250 of the Revised Penal Code provides that

ART. 250. Penalty for frustrated parricide, murder, or homicide. The courts, in view of the facts of the case, may impose upon the person guilty of the frustrated crime of parricide, murder or homicide, defined and penalized in the preceding articles, a penalty lower by one degree than that which should be imposed under the provisions of article 50.[81] The courts, considering the facts of the case, may likewise reduce by one degree the penalty which under article 51 should be imposed for an attempt to commit any of such crimes. The penalty for Homicide is reclusion temporal[82] thus, the penalty one degree lower would be prision mayor.[83] With the presence of the aggravating circumstance of abuse of superior strength and no mitigating circumstances, the penalty is to be imposed in its maximum period. [84] Prision mayor in its maximum period ranges from ten (10) years and one (1) day to twelve (12) years. Applying further the Indeterminate Sentence Law,[85] the minimum of the imposable penalty shall be within the range of the penalty next lower in degree, i.e.prision correccional in its maximum period which has a range of six (6) months and one (1) day to six (6) years. What now remains to be determined is the propriety of the awards made by the trial court with regard to the civil aspect of the case for the death of Jeonito Araque and the injuries sustained by Marlon Araque. Anent actual or compensatory damages, it bears stressing that only substantiated and proven expenses or those which appear to have been genuinely incurred in connection with the death, wake or burial of the victim will be recognized by the courts.[86] In this case, the expenses incurred for the wake, funeral and burial of the deceased are substantiated by receipts.[87] The trial courts award for actual damages for the death of Jeonito Araque should therefore be affirmed. In line with current jurisprudence,[88] the award of P50,000.00 as civil indemnity ex delicto must also be sustained as it requires no proof other than the fact of death of the victim and the assailants responsibility therefor.[89] The award for moral damages for the pain and sorrow suffered by the victims family in connection with his untimely death must likewise be affirmed. The award is adequate, reasonable and with sufficient basis taking into consideration the anguish and suffering of the deceaseds family particularly his mother who relied solely upon him for support.[90] The award of exemplary damages should likewise be affirmed considering that an aggravating circumstance attended the commission of the crime. [91] The trial court, however, correctly ignored the claim for loss of income or earning capacity of the deceased for lack of factual basis. The estimate given by the deceaseds sister on his alleged income as a pre-cast

businessman is not supported by competent evidence like income tax returns or receipts. It bears emphasizing in this regard that compensation for lost income is in the nature of damages[92] and as such requires due proof thereof.[93] In short, there must be unbiased proof of the deceaseds average income.[94] In this case, the victims sister merely gave an oral, self-serving and hence unreliable statement of her deceased brothers income. As for the awards given to Marlon Araque, the award for actual damages must be affirmed as the same is supported by documentary evidence. [95] With regard to moral and exemplary damages, the same being distinct from each other require separate determination.[96]The award for moral damages must be struck down as the victim himself did not testify as to the moral suffering he sustained as a result of the assault on his person. For lack of competent proof such an award is improper.[97] The award for exemplary damages must, however, be retained considering that under Article 2230 of the Civil Code, such damages may be imposed when the crime is committed with one or more aggravating circumstances.[98] Finally, this Court has observed that the trial court did not render judgment against accused Samson dela Torre, notwithstanding that he was arraigned and pleaded not guilty to both charges. Under the circumstances, he should be deemed to have been tried in absentia and, considering the evidence presented by the prosecution against him, convicted of the crime charged together with appellant Agapito Listerio. WHEREFORE, the appealed decision is AFFIRMED with the following MODIFICATIONS: 1.] the award of P5,000.00 to Marlon Araque by way of moral damages in Criminal Case No. 91-5843 is DELETED; 2.] Accused-Appellant is found GUILTY beyond reasonable doubt in Criminal Case No. 91-5843 of Frustrated Homicide and is sentenced to suffer an indeterminate penalty of Six (6) Years of Prision Correccional, as minimum to Ten (10) Years and One (1) Day of Prision Mayor, as maximum. After finality of this Decision, the records shall be remanded to the Regional Trial Court of Makati City, which is directed to render judgment based on the evidence against Samson dela Torre y Esquela. SO ORDERED. Davide, Jr., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.
[1] [2]

[3] [4]

Rollo, p. 13. Ibid., p. 14.

Id., pp. 80-91. Id., pp. 90-91. [5] TSN, 18 November 1991, pp. 5-6. [6] Ibid., p. 6. [7] Id., p. 7. [8] Id., p. 5. [9] Id., p. 7. [10] Id., pp. 7-8. [11] Id., pp. 8-9. [12] Id., p. 9. [13] Id., p. 8. [14] Id., pp. 8, 10. [15] Id., p. 10. [16] Id. pp. 7, 10. [17] Id., p. 10. [18] Id., pp. 10-12; Exhibit A. [19] TSN, 22 July 1992, pp. 6, 11. [20] Ibid., pp. 7-8; Exhibit I and series. [21] Id., pp. 8-9. [22] Id., p. 9. [23] Id., pp. 9, 18. [24] Id., pp. 8-9, 19-20. [25] Id., pp. 21-23. [26] TSN, 13 June 1994, p. 6. [27] Ibid., p. 6; Exhibit H and series. [28] Ibid., pp. 7-9, 10-12; Exhibits H-1; H-2 and H-3. [29] Id., pp. 7-8; Exhibit H-1. [30] Id., p. 8. [31] Id.; Exhibit H-2. [32] Id.; Exhibit H-3. [33] Id., p. 9. [34] Id., pp. 10-11 [35] TSN, 26 August 1992, p. 2. [36] Ibid., pp. 14-15. [37] Id., pp. 15-16. [38] Id., pp. 16-17. [39] Id., p. 16. [40] People v. Gregorio Tolibas @ Gorio, et al., G.R. No. 103506, 15 February 2000, p. 9, citing People v. De la Paz, Jr., 299 SCRA 92 [1998].

[41]

eople v. Carlie Alagon, et al., G.R. Nos. 126536-37, 10 February 2000, p. 13, citing People v. Mallari, G.R. No. 103547, 20 July 1999. [42] People v. Nicanor Llanes y Lebrea, et al., G.R. No. 116986, 4 February 2000, p. 14, citing People v. Gatchalian, 300 SCRA 1 [1998]; People v. Lapay, 298 SCRA 62 [1998]; People v. Daraman, 294 SCRA 27 [1998]. [43] TSN, 18 November 1991, pp. 3-10. [44] TSN, 27 November 1991, pp. 9-11. [45] People v. Jose Binas @ Nestor Binas, G.R. No. 121630, 8 December 1999, p. 33, citing People v. Bundang, 272 SCRA 641 [1997], citing People v. Escoto, 244 SCRA 87 [1995]. [46] People v. Jose Binas @ Nestor Binas, supra, citing People v. Cawaling, 293 SCRA 267 [1998], citing People v. Ramos, 260 SCRA 402 [1996]. [47] People v. Joey Aquino y Acedo, et al., G.R. No. 129288, 30 March 2000, p. 14, citing People v. Gomez, 251 SCRA 455 [1995], citing People v. Teehankee, 249 SCRA 54 [1995]. [48] People v. Padilla, 242 SCRA 629 [1995]; People v. De Leon, 245 SCRA 538 [1995]; People v. Malunes, 247 SCRA 317 [1995]; People v. Hubilla, Jr., 252 SCRA 471 [1996]; People v. Cristobal, 252 SCRA 507 [1996]; People v. Laurente, 255 SCRA 543 [1996]; People v. Excija, 258 SCRA 424 [1996]; People v. Villegas, 262 SCRA 314 [1996]; People v. Leoterio, 264 SCRA 608 [1996]. [49] People v. Cawaling, 293 SCRA 267 [1998]. [50] People v. Lotoc, G.R. No. 132166, 19 May 1999, 307 SCRA 471, citing People v. Magallano, 266 SCRA 305 [1997]. [51] People v. Heracleo Manriquez y Alia, et al., G.R. No. 122510-11, 17 March 2000, p. 12, citing People v. Silvestre, 244 SCRA 479 [1995]; People v. Hubilla, Jr., supra.; People v. Pecho, 262 SCRA 518 [1996]. [52] People v. Maranion, 199 SCRA 421 [1991]. [53] People v. Trinidad, 162 SCRA 714 [1988]. [54] People v. Datun, 272 SCRA 380 [1997]. [55] People v. Ramil Dacibar, et al., G.R. No. 111286, 17 February 2000, pp. 13-14, citing People v. Berroya, 283 SCRA 111 [1998]; italics supplied. [56] People v. Alejandro Marquita, et al., G.R. Nos. 119958-62, 1 March 2000, citing People v. Quinao, 269 SCRA 495 [1997]; People v. Manuel, 234 SCRA 532 [1994]; People v. Aniel, 96 SCRA 199 [1980] and People v. Izon, et al., 106 Phil. 690 [1958]. [57] People v. Patalinghug, G.R. Nos. 125814-15, p. 18; People v. Aquino, G. R. No. 126047, 16 September 1999, p. 5. [58] People v. Cielito Buluran y Ramirez, et al. G.R. No. 113940, 15 February 2000, p. 9.

[59] [60]

People v. Alas, 274 SCRA 310 [1997]. People v. Maldo, G.R. No. 131347, 19 May 1999, 307 SCRA 424, citing People v. Magallano, supra.; People v. Palomar, 278 SCRA 114 [1997]; People v. Dinglasan, 267 SCRA 26 [1997]; People v. Cabiles, Sr., 268 SCRA 271 [1996]. [61] TSN, 18 November 1991, p. 7. [62] TSN, 13 June 1994, pp. 7-9, 10-12; Exhibits H-1, H-2 and H-3. [63] TSN, 13 June 1994, p. 6. [64] Ibid., pp. 10-11. [65] People v. Felipe Abordo, et al., G.R. No. 107245, 17 December 1999, p. 15, citing People v. Patrolla, Jr., 254 SCRA 467 [1996]. [66] People v. Romeo Ugiaban Lumandong, G.R. No. 132745, 9 March 2000, p. 18; People v. Pedro Lumacang, et al., G.R. No. 120283, 1 February 2000, p. 13, citing People v.Panganiban, 241 SCRA 91 [1995]. [67] People v. Felipe Abordo, et al., supra., citing People v. Patrolla, supra., citing People v. Penones, 200 SCRA 624 [1991]. [68] People v. Cornelia Suelto @ Ely, G.R. No. 126097 8, February 2000, p. 10, citing People v. Tulop, 289 SCRA 316 [1998]. [69] People v. Belaro, G.R. No. 99869, 26 May 1999, 307 SCRA 591, citing People v. Zamora, 278 SCRA 60 [1997]; People v. Balderas, 276 SCRA 470 [1997]; People v. Patawaran, 274 SCRA 130 [1997]; People v. Balmoria, 287 SCRA 687 [1998]; People v. Ravanes, 283 SCRA 634 [1998]. [70] People v. Andres, 296 SCRA 318 [1998]; People v. Enriquez, 292 SCRA 656 [1998]. [71] Rollo, p. 38. [72] Aquino R.C. and Grino-Aquino C.C., Revised Penal Code. Vol. 1, 1997 ed., p. 109. [73] Ibid., p. 108. [74] Id., p. 98. [75] 36 Phil. 209 [1917]. [76] Aquino and Grino-Aquino, Revised Penal Code, supra, p. 98. [77] Aquino and Grino-Aquino, Revised Penal Code, supra, Vol. II, p. 626. [78] People v. Court of Appeals, G.R. No. 128986, 21 June 1999, 307 SCRA 687. [79] People v. Reyes, 285 SCRA 124 [1998]; Obosa v. CA, [80] Catholic Bishop of Balanga v. Court of Appeals, 264 SCRA 181 [1996]. [81] ART. 50. Penalty to be imposed upon principals of a frustrated crime. The penalty next lower in degree than that prescribed by law for the

consummated felony shall be imposed upon the principals in a frustrated felony. [82] Art. 249, Revised Penal Code. [83] Art. 70, Revised Penal Code. [84] Art. 64, par. 3, Revised Penal Code. [85] Act No. 4103, as amended by Act No. 4225, Section 1. [86] People v. Carlito Ereno y Ayson, G.R. No. 124706, 22 February 2000, p. 10, citing People v. Jamiro, 279 SCRA 290 [1997] and People v. Degoma, 209 SCRA 266 [1992]. [87] Exhibits F, F-1, F-2, and F-3; Record, pp. 150-152. [88] People v. Maximo Hernandez y De Guzman, G.G. No. 130809, 15 March 2000, p. 12, citing People v. Ebrada, 296 SCRA 353 [1998]; People v. Benito Mier y Vistal, G.R. No. 130598, 3 February 2000, p. 17. [89] People v. Samson Suplito, G.R. No. 104944, 16 September 1999; People v. Bautista, G.R. No. 96092, 17 August 1999; People v. Panida, G.R. Nos. 127125 and 138952, 6 July 1999; People v. Ortega, 276 SCRA 166 [1997]; People v. Espanola, 271 SCRA 689 [1997]; People v. Cordero, 263 SCRA 122 [1996]. [90] TSN, 27 April 1992, p. 5. [91] People v. Carlie Alagon, et al., G.R. No. 126536-37, 10 February 2000, pp. 19-20. [92] See Heirs of Raymundo Castro v. Bustos, 27 SCRA 327 [1968]. [93] De la Paz v. IAC, 154 SCRA 65 [1987]; Scott Consultants and Resource Development Corporation v. CA, 242 SCRA 393 [1995]; PNOC Transport Corporation v. CA, 297 SCRA 402 [1998]. [94] People v. Villanueva, 302 SCRA 380 [1999]. [95] Exhibits A, I, I-1 and I-2; Record, pp. 148, 156. [96] People v. Carlie Alagon, et al., supra, p. 19. [97] People v. Madelo Espina y Casanares, G.R. No. 123102, 29 February 2000, p. 13, citing People v. Guillermo, 302 SCRA 257 [1999] and People v. Noay, 296 SCRA 292 [1998]; See also People v. Verde, 302 SCRA 690 [1999]. [98] People v. Rogelio Galam, G.R. No. 114740, 15 February 2000, p. 13; People v. Carlie Alagon, et al., supra. Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

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G.R. No. 120988 August 11, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROSEMARIE DE LA CRUZ y NIEVA, accused-appellant. MELO, J.: Accused-appellant Rosemarie de la Cruz was caught holding a seven-year old schoolgirl by the hand and leading her out of the school grounds. Charged with kidnapping and serious illegal detention of a minor, she was convicted, and accordingly sentenced to suffer the penalty of no less than reclusion perpetua. Accused-appellant contends that her guilt has not been established by proof beyond reasonable doubt and that the entire case is nothing but an overreaction to the situation. The Information charged: That on or about September 27, 1994, in the City of Manila, Philippines, the said accused, being then a private individual and without authority of law, did then and there willfully, unlawfully and feloniously kidnap, detain or in any manner deprive one WHIAZEL SORIANO y CRUZ, seven years of age, of her liberty, against her will and consent. Contrary to law. (p. 5, Rollo) The case was docketed as Criminal Case No. 94-139168 before the Regional Trial Court of the National Capital Judicial Region (Branch 35, Manila). After accused-appellant entered a plea of not guilty, trial commenced. The testimony of the principal witnesses for the prosecution may be summarized in the following manner: Cecilia Caparos, a neighbor of Whiazel Soriano, the victim, testified that on September 27, 1994, at around 11:30 o'clock in the morning, she waiting for her two children inside the compound of the Aurora A. Quezon Elementary School when she saw Whiazel held on the hand and being led away by a woman later identified as accused-appellant. Knowing that Whiazel was enrolled in the afternoon class, she went after them and asked accusedappellant where she was going with Whiazel. Accused-appellant answered that she asked Whiazel to bring her to Rowena Soriano, the child's mother. Cecilia then turned to Whiazel and asked her why she was with accusediazel answered that accused-appellant requested her to look for the latter's child. Cecilia grew suspicious because of the inconsistent answers, Whiazel's terrified look, and the scratches on the child's face. She told accused-appellant that she will bring accused-appellant to a teacher because

she did not trust accused-appellant. Accused-appellant was "surprised and reasoned out", but just the same agreed to go to a teacher (pp. 3-9, 11-13, tsn, April 3, 1995). The victim, Whiazel Soriano (sometimes referred to in the record as Reazel or Rhiazel), at the time of the incident, was a Grade 1 pupil at the Aurora A. Quezon Elementary School in Malate, Manila. She testified that she voluntarily went with accused-appellant after being asked for help in looking for the school dentist. Whiazel also mentioned that accusedappellant asked for her assistance in looking for accused-appellant's child in a place far away from school. She was neither threatened nor hurt in any way by accused-appellant. She was not led out of the school; in fact they never got out of the school compound. When Cecilia Caparos saw them, Whiazel told accused-appellant that she wanted to go. Accused-appellant refused, and held Whiazel's hand. Whiazel did not try to escape. She did not even cry; well, not until they went to a teacher (pp. 3-9, tsn, April 7, 1995). For the defense, Eufemia Magpantay, guidance teacher at Aurora A. Quezon Elementary School, testified that on September 27, 1994, at around noontime, accused-appellant, Whiazel, her teacher Mrs. Rioganes, and Cecilia Caparos went to her office. The incident was related to her. Asked what she was doing with Whiazel, accused-appellant said she wanted the child's help in looking for the school dentist. Accused-appellant reiterated this before the assistant principal to whom they all later went. This witness testified that the school allows patients who are not connected with the school to consult at the clinic. Further, she also mentioned that the students of the Aurora A. Quezon Elementary School, the same being a public school, come mostly from low to average income families (pp. 4-9, tsn, April 28, 1995). Accused-appellant's mother-in-law, Gorgonia Nieva, testified that on the day prior to the incident, accused-appellant had asked her to look for Dr. Luisa Medina, a dentist. Accused-appellant's daughter was then sick. Her inquiries showed that the dentist no longer had her clinic at her house; instead she may be found at the Aurora A. Quezon Elementary School. Thus, the next day, he went with accused-appellant to Manila to look for the dentist. They parted ways when they arrived at the school at around 11 o'clock in the morning (pp. 3-12, tsn, April 24, 1995). Accused-appellant testified that when she got to the school, she asked; guard where the clinic was. The guard gave her directions, and told her to pass through the same gate on her way out. When she got to the clinic, no one was there so she left. On her way out, a girl, later identified as Whiazel, walked with her at arm's length (nakasabay). She did not hold the child; she

did not look at the child; they did not talk; not even smiles were exchanged. Before she could get out of the school, a woman (Cecilia Caparos) called her; hurled invectives at her, and accused her of kidnapping Whiazel. Accused-appellant got mad but nevertheless offered no resistance when Caparos dragged her and brought her to the office of the guidance counselor. There, Caparos repeated her charges against accused-appellant, which accusations the latter denied. Whiazel was asked by the guidance counselor if accused-appellant was really going to kidnap her, she answered no. Very much the same things were said later at the principal's office ( pp. 2-8, tsn, April 21,1995). At the request of the principal, five policemen later came and brought accused-appellant to Station No. 5 of the Western Police District (pp. 14-15, Rollo). Lending credence to the testimony of the prosecution witnesses, the trial court rendered the appealed decision finding accused-appellant guilty beyond reasonable doubt of the crime of kidnapping and serious illegal detention of a minor, as: It has been established with moral certainty that with neither legal reason nor just cause, the accused took hold of the child Whiazel by the hand, and led her towards the gate of the school compound against her will, evidently to bring her out of the school perimeter. But before they could actually exit through that gate, the child saw a neighbor (obviously Cecilia Caparos) and told the accused that she wanted to go to her neighbor. The accused, however, refused and did not agree to let the child go and continued to hold her, for which reason, she was not able to get away from the accused . . . That the accused did not employ any physical force on Whiazel Soriano in detaining and restraining her freedom provides no significant consequence to relieve the former from the resultant effects of her consummated criminal act, for it cannot be denied that she had exerted sufficient moral intimidation on the child which effectively controlled and influenced her will . . . At such tender age and immature mind she can easily be awed and cowed by a person such as the accused. (pp. 21-26, Ibid.) Accordingly, accused-appellant was sentenced to suffer the penalty of reclusion perpetua, and to pay the victim, through her parents, P50,000 as moral damages (p. 26, Ibid.). Accused-appellant interposed the instant appeal, contending that her act of holding the child by the hand and leading her out of the school premises cannot be considered an act of kidnapping without leaving room for reasonable doubt. Accused-appellant points out that Whiazel did not categorically state that accused-appellant tried to kidnap her. On the

contrary, the child testified that she voluntarily went with accused-appellant and that she was neither forced nor intimidated into accompanying accusedappellant. Also, it is said, accused-appellant's excuse for going to Whiazel's school to look for Dr. Medina is buttressed by the fact that she had a tooth extracted in jail sometime in November 1994; and that contrary to Whiazel's statement, the guidance teacher, Eufemia Magpantay, testified that even persons not connected with the school are allowed to consult Dr. Medina at the school's dental clinic. Accused-appellant thus contends that she had a valid reason for being at the school premises, as indeed, she did not run away and instead faced her accuser. All these circumstances, accusedappellant submits, constitute reasonable doubt as to her guilt which, therefore, necessitate her acquittal (pp. 4-8, Accused-Appellant's Brief; pp. 53-57, Rollo). The People, through the Office of the Solicitor General, argue that Whiazel was deprived of her liberty, no matter how short a time, the moment accused-appellant, a person unknown to Whiazel, prevented her from going over to her neighbor, Cecilia Caparos. Under the circumstances, considering that she is of such tender age, deprivation of liberty was consummated even in the absence of force or threats upon the victim. (pp. 6-7, PlaintiffAppellee's Brief). In a prosecution for kidnapping, the intent of the accused to deprive the victim of the latter's liberty, in any manner, needs to be established by indubitable proof (People vs. Puno, 219 SCRA 85 [1993]). The acts held by the trial court, and maintained by the People, as consummating the crime of kidnapping in this case are those when accused-appellant held the victim's hand and refused to let go when the victim asked to go over to her neighbor, who by then already saw what was happening. This happened for only a very brief span of time and the evidentiary record shows that there were a good number of people present at that time, that a guard was stationed at the gate, and that there was at least a teacher nearby. The child could have just as easily shouted for help. While it does not take much to scare the wits out of a small child like Whiazel, under the attendant circumstances, we cannot say with certainty that she was indeed deprived of her liberty. It must further be noted that up to that brief moment when Cecilia saw them, and the child asked to be let go, the victim had gone with accused-appellant voluntarily. Without any further act reinforcing the inference that the victim may have been denied her liberty, even taking cognizance of her minority, the Court hesitates to find that kidnapping in the case at bar was consummated. While it is a well-entrenched rule that factual findings of trial courts, especially when they concern the appreciation of testimony of

witnesses, are accorded great respect, by exception, when the judgment is based on a misapprehension of facts, as we perceive in the case at bar, the Court may choose to substitute its own findings (People vs. Padua, 215 SCRA 266 [1992]). To our mind, the felony committed is kidnapping and serious illegal detention of a minor in the attempted stage only. The attempted phase of a felony is defined as 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 (Article 6, Revised Penal Code). The overt act must be an external one which has direct connection with the felony, it being "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 offender, will logically and necessarily ripen to a concrete offense" (Padilla. Criminal Law: Revised Penal Code Annotated, vol. I, 1987 ed., p. 141 citing People vs. Lamahang, 61 Phil 703). In the case at bar, accused-appellant already commenced her criminal scheme by taking hold of Whiazel by the hand and leading her out of the school premises. As mentioned earlier, these do not sufficiently establish that kidnapping had been consummated. However, considering other attendant facts and circumstances, it does reveal that accused-appellant had less than noble intentions with the victim. Firstly, the child was led to believe that accused-appellant wanted to see the dentist. It is not clear, however, that there really was a Dr. Medina employed by the school as dentist. Not even the guidance counselor who testified for the defense made any specific mention of the doctor. Secondly, if accused-appellant wanted to see the dentist, why was she on her way out? If it is true she had already gone to the clinic and found no one there and that she then decided to leave, what else was she doing with the child? Thirdly, accused-appellant did not simply ask for directions; she wanted the victim to accompany her. That seems suspicious enough. And of all people, why ask a seven-year old? Fortunately, the further progress and completion of accused-appellant's felonious design was thwarted by the timely intervention of Cecilia Caparos, the victim's neighbor. The Court thus holds that the felony committed by accused-appellant in the case at bar is not kidnapping and serious illegal detention of a minor in the consummated stage, but rather in its attempted stage. Nevertheless, we believe that the trial court erred in granting moral damages in the amount of P50,000 despite the absence of any evidence on

record that the victim suffered sleepless nights, serious anxiety, fright, or similar injury. All that the record reveals is that the victim cried when they were at the guidance counselor's office, nothing more. Inasmuch as moral damages are granted not to enrich, but rather to compensate the victim for the injury suffered (Bautista vs. Mangaldan Rural Bank, Inc., 230 SCRA 16 [1994]), proof of moral suffering must be introduced, failing in which, such an award is not proper (People vs. Manero, Jr. et. al., 218 SCRA 85 [1993]). Since the crime is only in its attempted stage, the penalty imposable under Article 267 of the Revised Penal Code, as amended by R.A. 7659, which is reclusion perpetua to death, has to be lowered by two degrees (Article 51, Revised Penal Code). Two degrees lower from reclusion perpetua to death would be prision mayor, which has to be imposed in its medium period in the absence of any mitigating or aggravating circumstance (Article 64, Revised Penal Code). Applying further the Indeterminate Sentence Law, the imposable penalty would range from prision correccional, as the minimum, to prision mayor in its medium period, as the maximum. WHEREFORE, premises considered, the appealed decision is MODIFIED in that accused-appellant is found guilty beyond reasonable doubt of attempted kidnapping and serious illegal detention. Accordingly, accusedappellant is sentenced to suffer an indeterminate penalty of two (2) years and one (1) day of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum. The award for moral damages in the amount of P50,000 is hereby DELETED. SO ORDERED. Narvasa, C.J., Davide, Jr., Francisco and Panganiban, JJ., concur. LINK:

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