G.R. No.

140842

April 12, 2007

RUFINA CHUA, Petitioner,

vs.
THE COURT OF APPEALS and WILFRED N. CHIOK, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is a Petition for Certiorari 1 assailing the Resolutions dated
September 20, 19992 and November 16, 1999 of the Court of Appeals in CA-G.R.
SP No. 53340.
In 1989, Rufina Chua, petitioner, met Wilfred Chiok, respondent, who
represented himself as a licensed stockbroker and an expert in the stock market.
He encouraged petitioner to invest her money in stocks, requesting her to
designate him as her stockbroker. On respondents prodding, she agreed.
For several years, respondent acted as petitioners stockbroker. She made profits
out of their transactions, prompting her to trust respondent in handling her stock
investments.
In 1995, respondent encouraged petitioner to purchase shares in bulk as this will
increase her earnings. Hence, in June 1995, she entrusted to him the amount of
P9,563,900.00 for the purpose of buying shares of stocks in bulk. Petitioner
deposited P7,100,000.00 in respondents account and personally gave him the
remaining P2,463,900.00. Thereupon, he told petitioner to wait for one week. A
week elapsed and respondent advised her to wait for another week. Then, there
was no more news from respondent. Finally, when petitioner was able to contact
him, respondent admitted that he spent the money. At any rate, he issued two
checks as payment but when petitioner deposited them in the drawee bank, the
checks were dishonored for insufficient funds.
In a letter dated October 25, 1995, petitioner demanded payment from
respondent, but this remained unheeded.
Petitioner then came to know that respondent was not a licensed stockbroker but
only a telephone clerk at Bernard Securities, Inc. Immediately, she caused the
filing of an information for estafa against him with the Regional Trial Court,
Branch 165, Pasig City, docketed as Criminal Case No. 109927.
During the arraignment, respondent, assisted by his counsel de parte, pleaded
not guilty. Trial ensued.
Page 1 of 158

Respondent denied the charge against him. He testified that he was not an
employee of Bernard Securities, Inc.; that he buys and sells U.S. dollars and that
petitioner used to buy dollars from him; that what actually existed between them
was an unregistered partnership; and that he received the amount of
P9,563,900.00 as her investment in their partnership.
After the prosecution and the defense had presented their respective evidence,
the trial court set the promulgation of judgment on January 26, 1999. However,
respondent and his counsel failed to appear on said date despite notice. The trial
court reset the promulgation of judgment on February 1, 1999, with notice to
respondent. Again, respondent failed to appear. The trial court then promulgated
its Decision convicting respondent of estafa and sentencing him to suffer twelve
(12) years of prision mayor, as minimum, to twenty (20) years of reclusion
temporal, as maximum. Respondent was likewise ordered to pay herein
petitioner the amount of P9,563,900.00 with interest at the legal rate computed
from October 25, 1995, the date of demand, until fully paid.
On the same day, February 1, 1999, the prosecution filed a motion for
cancellation of bail on the ground that respondent might flee or commit another
crime.
On February 13, 199, respondent filed a motion for reconsideration of the
judgment of conviction.
Meanwhile, or on February 15, 1999, the motion for cancellation of bail was set
for hearing. The prosecution presented a Record Check Routing Form issued by
the Bureau of Immigration showing that respondent has an Alien Certificate of
Registration (ACR) and Immigrant Certificate of Residence (ICR). During that
hearing, respondent admitted using the names "Mark Tan" and Tong Wai Fat" as
aliases.
Consequently, on May 28, 1999, the trial court issued an Omnibus Order (a)
denying respondents motion for reconsideration of the judgment of conviction;
(b) canceling his bail; and (c) giving him five (5) days from notice within which to
appear before the trial court, otherwise he would be arrested.
On June 18, 1999, respondent interposed an appeal to the Court of Appeals from
the trial courts judgment of conviction and from the Omnibus Order insofar as it
denied his motion for reconsideration of said judgment. The appeal was docketed
as CA-G.R. CR No. 23309.
The following day, or on June 19, 1999, respondent filed with the Court of
Appeals a petition for certiorari with application for a temporary restraining order
(TRO) and a writ preliminary injunction assailing the trial courts Omnibus Order
canceling his bail. The petition was docketed as CA-G.R. SP No. 53340.
Page 2 of 158

On June 25, 1999, the trial court issued a warrant of arrest against respondent
for his failure to appear despite the lapse of the 5-day period provided in the May
28, 1999 Omnibus Order. The warrant was returned unserved because he could
not be found at his given address.
However, the Court of Appeals, in a Resolution dated July 27, 1999 issued a
TRO enjoining the trial court from implementing its Omnibus Order of May 28,
1999.
On September 20, 1999, after hearing respondents application for injunction, the
appellate court issued a writ of preliminary injunction enjoining the arrest of
respondent, holding that the latter should not be deprived of his liberty pending
resolution of his appeal as the offense for which he was convicted is a noncapital offense; and that the probability that he will flee during the pendency of
his appeal is merely conjectural.
Petitioner then filed a motion for reconsideration but it was denied by the Court of
Appeals in its Resolution dated November 16, 1999.
Hence, the instant petition for certiorari.1a\^/phi1.net
Petitioner contends that the Court of Appeals acted with grave abuse of
discretion amounting to lack or in excess of jurisdiction in issuing the writ of
preliminary injunction enjoining the arrest of respondent.
Private respondent counters that the petition should be dismissed for lack of
merit.
The petition is meritorious.
Firstly, the petition for certiorari with prayer for a TRO and a writ of preliminary
injunction (CA-G.R. SP No. 53340) is not the proper recourse in assailing the trial
courts May 28, 1999 Omnibus Order canceling his bail. Section 5, Rule 114 of
the Revised Rules of Criminal Procedure3 provides:
SEC. 5. Bail, when discretionary. Upon conviction by the Regional Trial Court
of an offense not punishable by death, reclusion perpetua or life imprisonment,
admission to bail is discretionary. The application for bail may be filed and acted
upon by the trial court despite the filing of a notice of appeal, provided it has not
transmitted the original record to the appellate court. However, if the decision of
the trial court convicting the accused changed the nature of the offense from nonbailable to bailable, the application for bail can only be filed with and resolved by
the appellate court,

Page 3 of 158

Should the court grant the application, the accused may be allowed to continue
on provisional liberty during the pendency of the appeal under the same bail
subject to the consent of the bondsman.
If the penalty imposed by the trial court is imprisonment exceeding six (6) years,
the accused shall be denied bail, or his bail shall be cancelled upon a showing by
the prosecution, with notice to the accused, of the following or other similar
circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteration;
(b) That he has previously escaped from legal confinement, evaded sentence, or
violated the conditions of his bail without valid justification;
(c) That he committed the offense while under probation, parole, or conditional
pardon;
(d) That the circumstances of his case indicate the probability of flight if released
on bail; or
(e) That there is undue risk that he may commit another crime during the
pendency of the appeal.1awphi1.nt
The appellate court may, motu proprio or ON MOTION OF ANY PARTY, review
the resolution of the Regional Trial Court after notice to the adverse party in
either case.4 (Underscoring supplied)
It is clear from the last paragraph of the above provision that private respondents
appropriate remedy against the trial courts May 28, 1999 Omnibus Order
canceling his bail is by filing with the Court of Appeals a motion to review the said
order in the same regular appeal proceedings in CA-G.R. CR No. 23309 he
himself initiated. Such motion is an incident in his appeal. 5 The filing of a
separate petition via a special civil action or special proceeding questioning such
adverse order before the appellate court is proscribed. 6 Such independent
special civil action obviously contravenes the rule against multiplicity of suits and
constitutes forum shopping. Hence, the Court of Appeals erred in not dismissing
outright respondents petition for certiorari in CA-G.R. SP No. 53340. The basic
rule is that such petition may only be availed of when "there is no appeal or any
plain, speedy and adequate remedy in the ordinary course of law." 7
Secondly, the assailed September 20, 1999 Resolution of the Court of Appeals
granting respondents application for a writ of preliminary injunction enjoining the
implementation of the trial courts Omnibus Order canceling his bail, is bereft of
any factual or legal basis. To be entitled to an injunctive writ, the applicant must
Page 4 of 158

show that (1) he has a clear existing right to be protected; and (2) the acts
against which the injunction is to be directed are in violation of such right. 8
The first requisite is absent. Respondent has no right to be freed on bail pending
his appeal from the trial courts judgment. His conviction carries a penalty of
imprisonment exceeding 6 years (to be exact, 12 years of prision mayor, as
minimum, to 20 years of reclusion temporal, as maximum) which justifies the
cancellation of his bail pursuant to the third paragraph of Section 5 (b), (d) and
(e) of Rule 114, quoted above. Moreover, he failed to appear despite notice
during the promulgation of judgment on January 26, 1999. His inexcusable nonappearance not only violated the condition of his bail that he "shall appear"
before the court "whenever required" by the latter or the Rules, 9 but also showed
the probability that he might flee or commit another crime while released on bail.
At this point, we stress that when respondent did not appear during the
promulgation of judgment on January 26, 1999 despite notice, and without
offering any justification therefor, the trial court should have immediately
promulgated its Decision. The promulgation of judgment in absentia is mandatory
pursuant to Section 6, Rule 120 of the same Rules, the relevant portions of which
read:
SEC. 6. Promulgation of judgment. The judgment is promulgated by reading it
in the presence of the accused and any judge of the court in which it was
rendered. However, if the conviction is for a light offense, the judgment may be
pronounced in the presence of his counsel or representative. When the judge is
absent or outside the province or city, the judgment may be promulgated by the
clerk of court.
xxx
The proper clerk of court shall give notice to the accused personally or through
his bondsman or warden and counsel, requiring him to be present at the
promulgation of the decision. x x x.
In case the accused fails to appear at the scheduled date of promulgation of
judgment despite notice, THE PROMULGATION SHALL BE MADE BY
RECORDING THE JUDGMENT IN THE CRIMINAL DOCKET and serving him a
copy thereof at his last known address or thru his counsel.
If the judgment is for conviction and the failure of the accused to appear
was without justifiable cause, he shall lose the remedies available in these
Rules against the judgment and the court shall order his arrest. Within
fifteen (15) days from promulgation of judgment, however, the accused may
surrender and file a motion for leave of court to avail of these remedies. He shall
state the reasons for his absence at the scheduled promulgation, and if he
Page 5 of 158

proves that his absence was for a justifiable cause, he shall be allowed to avail of
said remedies within fifteen (15) days from notice. 10 (Underscoring supplied)
It bears stressing that the rule authorizing the promulgation of judgment in
absentia is intended to obviate the situation in the past where the judicial process
could be subverted by the accused jumping bail to frustrate the promulgation of
judgment.11 As mentioned earlier, the trial court should have promulgated the
judgment in absentia on January 26, 1999. The resetting the promulgation on
February 1, 1999 is tantamount to condoning respondents act of making a
mockery of our judicial process, thereby defeating the avowed purpose of the
Rule.
Since respondent has not shown any right to be protected, the second requisite
for the issuance of a writ of preliminary injunction is obviously absent. As such,
the Court of Appeals clearly acted with grave abuse of discretion in issuing its
assailed Resolution of September 20, 1999 granting the writ of preliminary
injunction. We held that the grant of the writ of preliminary injunction despite the
absence of a clear legal right on the part of the applicant constitutes grave abuse
of discretion amounting to lack of jurisdiction.12
WHEREFORE, we GRANT the petition. The assailed Resolutions dated
September 20, 1999 and November 16, 1999 of the Court of Appeals in CA-G.R.
SP No. 53340 are SET ASIDE. Respondent Wilfred N. Chioks petition for
certiorari in CA-G.R. SP No. 53340 is DISMISSED. The Omnibus Order dated
May 28, 1999 issued by the Regional Trial Court, Branch 165, Pasig City in
Criminal Case No. 109927 canceling respondents bail is AFFIRMED.
Costs against respondent.
SO ORDERED.
G.R. No. 183619

October 13, 2009

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
SALVINO SUMINGWA, Appellant.
DECISION
NACHURA, J.:
On appeal before us is the January 31, 2008 Court of Appeals (CA) Decision 1 in
CA-G.R. CR No. 30045 affirming with modification the February 14, 2006
Regional Trial Court2 (RTC) Consolidated Judgment 3 against appellant Salvino
Sumingwa in Criminal Case Nos. 1644 and 1645 for Acts of Lasciviousness;
Page 6 of 158

1646, 1649 and 1654 for Rape; 1651 for Attempted Rape; and 1655 for Unjust
Vexation. Assailed also is the June 5, 2008 CA Resolution 4 denying appellants
motion for reconsideration.
In twelve Informations, the prosecution charged appellant with two (2) counts of
Acts of Lasciviousness,5 four (4) counts of Rape, 6 three (3) counts of Unjust
Vexation,7 one (1) count of Other Light Threats, 8 one (1) count of Maltreatment,9
and one (1) count of Attempted Rape 10 for acts committed against his minor 11
daughter AAA from 1999-2001.
Appellant pleaded "not guilty" to all the charges. On September 24, 2004, the
RTC dismissed12 Criminal Case Nos. 1647 for Rape; 1648 for Unjust Vexation;
1650 for Other Light Threats; 1652 for Unjust Vexation; and 1653 for
Maltreatment, on the basis of the Demurrer to Evidence13 filed by appellant.
Sometime in August 1999, between 8:00 and 10:00 in the morning, AAA,
together with her brothers and her father, appellant herein, was in their residence
in Mountain Province, watching television. Appellant called AAA and ordered her
to sit in front of him. As she was sitting, appellant told her that it was not good for
a girl to have small breasts. Suddenly, he inserted his hands into AAAs shirt then
fondled her breast. AAA resisted by moving her hands backwards. 14
One afternoon in September 1999, AAAs mother and brothers went to school
leaving AAA and appellant in their house. While in the masters bedroom,
appellant ordered AAA to join him inside. There, appellant removed his
undergarments then forced her to grasp and fondle his penis until he ejaculated.
Appellant thereafter told her not to be malicious about it. 15
The same incident took place in August 2000. This time, appellant forced AAA to
lie down on the bed, went on top of her, removed her short pants and panty, then
rubbed his penis against her vaginal orifice. AAA resisted by crossing her legs
but appellant lifted her right leg and partially inserted his penis into her vagina. As
she struggled, appellant stood up then ejaculated. AAA felt numbness on her
buttocks after the bestial act committed against her.16
Appellant repeated his dastardly act against AAA on separate occasions in
September and November 2000. During these times, appellant satisfied himself
by rubbing his penis against AAAs vagina without trying to penetrate it. After
reaching the top of his lust, he used AAAs short pants to wipe his mess. Instead
of keeping her harrowing experience to herself, AAA narrated it to her best
friend.17
On November 24, 2000, appellant approached AAA and told her that he wanted
to have sex with her. When she refused, appellant forcibly removed her pants
and boxed her right buttock. AAA still refused, which angered appellant. He then
Page 7 of 158

went to the kitchen and returned with a bolo which he used in threatening her.
Luckily, AAAs grandmother arrived, prompting appellant to desist from his
beastly desires.18
On December 20, 2000, AAA and her best friend were doing their school work in
front of the formers house. When appellant arrived, he embraced AAA. He,
thereafter, pulled her inside the house and kissed her on the lips. 19
The last incident occurred inside the comfort room of their house on May 27,
2001. When AAA entered, appellant pulled down her short pants and panty,
unzipped his trousers, brought out his penis, then repeatedly rubbed it on her
vagina while they were in a standing position.20
AAA decided to report the sexual abuses to her grandmother who forthwith
brought her to the National Bureau of Investigation where she was examined by
the medico-legal officer. It was found during the examination that there were no
extragenital physical injuries on AAAs body but there were old, healed, and
incomplete hymenal lacerations.21
Appellant denied all the accusations against him. He claimed that in August and
September 1999, he was at the house of his mistress in Antipolo City. He also
explained that in August 2000, he stayed in Baguio City and worked there as a
karate instructor. He added that he only went home in September 2000 but left
again in October for Quirino, Ilocos Sur where he stayed for three weeks. When
he went back home, his wife informed him that AAA had not been coming home.
Thereafter, appellant went to Baguio City to buy medicine for his wife, then
returned home again on the third week of December 2000. While there, he was
confronted by his wife about his womanizing. His wife got mad and refused to
forgive him despite his repeated pleas. Consequently, he became furious and
almost choked his wife to death when she ignored and refused to talk to him.
This prompted him to leave and go back to Baguio.22
Sometime in April 2001, appellant went back home to reconcile with his wife.
While talking to his wife and the latters family, his mother-in-law berated him and
demanded his separation from his wife. Appellant got mad and threatened to kill
his wifes family. His mother-in-law, in turn, threatened to file charges against
him.23
To belie the claim of AAA that she was sexually abused in August, November and
December 2000, allegedly during school hours, her teacher testified that the
former was not absent in class during those times.24
On November 24, 2004, AAA executed an Affidavit of Recantation 25 claiming that
while appellant indeed committed lascivious acts against her, she exaggerated
her accusations against him. She explained that appellant did not actually rape
Page 8 of 158

her, as there was no penetration. She added that she charged appellant with
such crimes only upon the prodding of her mother and maternal grandmother.
On February 14, 2006, the RTC rendered a decision convicting appellant of six
(6) counts of acts of lasciviousness,26 one (1) count of attempted rape27 and one
(1) count of unjust vexation,28 the dispositive portion of which reads:
WHEREFORE, a Consolidated Judgment is hereby rendered sentencing Salvino
Sumingwa to suffer
1. The penalty of six (6) months of [arresto mayor] as minimum to six (6) years of
[prision correccional] as maximum; and ordering him to pay the offended party
P10,000.00 [as] indemnity [ex-delicto], P10,000.00 as moral damages and
P5,000.00 as exemplary damages for each count of Acts of Lasciviousness
charged in Crim. Cases 1644, 1645, 1646, 1649 and 1654;
2. The penalty of six (6) years of [prision correccional] as minimum to twelve (12)
years of [prision mayor] as maximum; and ordering said offender to pay the
victim P15,000.00 as indemnity [ex-delicto], P15,000.00 as moral damages and
P10,000.00 as exemplary damages in Crim. Case 1651 for Attempted Rape; and
3. The penalty of thirty (30) days of [arresto menor] and fine of P200.00 for Unjust
Vexation in Crim. Case 1655.
SO ORDERED.29
The trial court gave credence to AAAs testimonies on the alleged lascivious acts
committed against her. In view of the withdrawal of her earlier claim of the fact of
penetration, the court sustained the innocence of appellant on the rape charges
and concluded that the crime committed was only Acts of Lasciviousness.
In Criminal Case No. 1651, the RTC found that appellant committed all the acts
of execution of the crime of Rape, but failed to consummate it because of the
arrival of AAAs grandmother. Hence, he was convicted of attempted rape. In
embracing and kissing AAA in full view of the latters best friend, appellant was
convicted of Unjust Vexation.
On appeal, the CA affirmed the conviction of appellant, except that in Criminal
Case No. 1646; it convicted him of Qualified Rape instead of Acts of
Lasciviousness. The pertinent portion of the assailed decision reads:
WHEREFORE, premises considered, herein appeal is hereby DISMISSED for
evident lack of merit and the assailed Consolidated Judgment dated 14 February
2006 is hereby AFFIRMED with the following MODIFICATION:

Page 9 of 158

1. The Appellant SALVINO SUMINGWA is hereby convicted of the crime of

QUALIFIED RAPE in Criminal Case No. 1646 and the penalty of RECLUSION
PERPETUA is hereby imposed upon him. The Appellant is likewise ordered to
pay the Victim, [AAA], civil indemnity in the amount of Php75,000.00 as well as
moral damages in the amount of Php50,000.00, in conformity with prevailing
jurisprudence.
2. In Criminal Case No. 1651 for Attempted Rape, the Appellant, is hereby
ordered to indemnify the victim [AAA] in the sum of P30,000.00 as civil indemnity,
plus the sum of P25,000.00 as moral damages.
SO ORDERED.30
The appellate court concluded that, notwithstanding AAAs retraction of her
previous testimonies, the prosecution sufficiently established the commission of
the crime of Rape. It added that the qualifying circumstances of minority and
relationship were adequately proven.
Hence, this appeal.
First, in light of the recantation of AAA, appellant questions the credibility of the
prosecution witnesses and insists that his constitutional right to be presumed
innocent be applied.31 Second, he argues that in Criminal Case No. 1651 for
Attempted Rape, he should only be convicted of Acts of Lasciviousness, there
being no overt act showing the intent to have sexual intercourse. 32 Lastly, he
insists that he could not be convicted of all the charges against him for failure of
the prosecution to show that he employed force, violence or intimidation against
AAA; neither did the latter offer resistance to appellants advances. 33
In rape cases particularly, the conviction or acquittal of the accused most often
depends almost entirely on the credibility of the complainants testimony. By the
very nature of this crime, it is generally unwitnessed and usually the victim is left
to testify for herself. When a rape victims testimony is straightforward and
marked with consistency despite grueling examination, it deserves full faith and
confidence and cannot be discarded. 34 If such testimony is clear, consistent and
credible to establish the crime beyond reasonable doubt, a conviction may be
based on it, notwithstanding its subsequent retraction. Mere retraction by a
prosecution witness does not necessarily vitiate her original testimony. 35
A retraction is looked upon with considerable disfavor by the courts. 36 It is
exceedingly unreliable for there is always the probability that such recantation
may later on be repudiated. It can easily be obtained from witnesses through
intimidation or monetary consideration. 37 Like any other testimony, it is subject to
the test of credibility based on the relevant circumstances and, especially, on the
demeanor of the witness on the stand.38
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As correctly held by the CA, AAAs testimony is credible notwithstanding her

subsequent retraction. We quote with approval its ratiocination in this wise:
Clearly, the retraction made by the Victim is heavily unreliable. The primordial
factor that impelled the Victim to retract the rape charges against her father was
her fear and concern for the welfare of her family especially her four (4) siblings.
It does not go against reason or logic to conclude that a daughter, in hopes of
bringing back the harmony in her family tormented by the trauma of rape, would
eventually cover for the dastardly acts committed by her own father. Verily, the
Victims subsequent retraction does not negate her previous testimonies
accounting her ordeal in the hands for (sic) her rapist. 39
We now proceed to discuss the specific crimes with which appellant was
charged.
Criminal Case Nos. 1646, 1649 and 1654 for Rape
The CA correctly convicted appellant of Qualified Rape in Criminal Case No.
1646, and of Acts of Lasciviousness in Criminal Case Nos. 1649 and 1654.
The crime of rape is defined in Article 266-A of the Revised Penal Code (RPC),
as amended by the Anti-Rape Law of 1997, as follows:
ART. 266-A. Rape, When and How Committed. - Rape is committed
1. By a man who shall have carnal knowledge of a woman under any of the
following circumstances:
a. Through force, threat or intimidation.
In her direct testimony, AAA stated that appellant removed her short pants and
panty, went on top of her and rubbed his penis against her vaginal orifice. She
resisted by crossing her legs but her effort was not enough to prevent appellant
from pulling her leg and eventually inserting his penis into her vagina. Clearly,
there was penetration.
It is noteworthy that appellant pulled AAAs leg, so that he could insert his penis
into her vagina. This adequately shows that appellant employed force in order to
accomplish his purpose. Moreover, in rape committed by a father against his own
daughter, the formers moral ascendancy and influence over the latter may
substitute for actual physical violence and intimidation. The moral and physical
dominion of the father is sufficient to cow the victim into submission to his beastly
desires, and no further proof need be shown to prove lack of the victims consent
to her own defilement.40

Page 11 of 158

While appellants conviction was primarily based on the prosecutions testimonial

evidence, the same was corroborated by physical evidence consisting of the
medical findings of the medico-legal officer that there were hymenal lacerations.
When a rape victims account is straightforward and candid, and is corroborated
by the medical findings of the examining physician, the same is sufficient to
support a conviction for rape.41
Aside from the fact of commission of rape, the prosecution likewise established
that appellant is the biological father of AAA and that the latter was then fifteen
(15) 42 years old. Thus, the CA aptly convicted him of qualified rape, defined and
penalized by Article 266-B of the RPC, viz.:
ART. 266-B. Penalties. x x x.
xxxx
The death penalty shall also be imposed if the crime of rape is committed with
any of the following aggravating/qualifying circumstances:
1) When the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common law spouse of the parent of the
victim.
In view of the effectivity of Republic Act (R.A.) 9346, appellant was correctly
meted the penalty of reclusion perpetua, without eligibility for parole.
As to damages, appellant should pay AAA P75,000.00 as civil indemnity, which is
awarded if the crime is qualified by circumstances that warrant the imposition of
the death penalty.43 In light of prevailing jurisprudence,44 we increase the award
of moral damages from P50,000.00 to P75,000.00. Further, the award of
exemplary damages in the amount of P30,000.0045 is authorized due to the
presence of the qualifying circumstances of minority and relationship. 46
In Criminal Case Nos. 1649 and 1654, although appellant was charged with
qualified rape allegedly committed on the second week of November 2000 and
May 27, 2001, he should be convicted with Acts of Lasciviousness committed
against a child under Section 5(b), Article III of R.A. 7610, 47 which reads:
SEC. 5. Child Prostitution and Other Sexual Abuse. Children, whether male or
female, who for money, profit, or any other consideration or due to the coercion
or influence of any adult, syndicate or group, indulge in sexual intercourse or
lascivious conduct, are deemed to be children exploited in prostitution and other
sexual abuse.
Page 12 of 158

The penalty of reclusion temporal in its medium period to reclusion perpetua shall
be imposed upon the following:
xxxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subjected to other sexual abuse: Provided, That
when the victim is under twelve (12) years of age, the perpetrators shall be
prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No.
3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as
the case may be: Provided, That the penalty for lascivious conduct when the
victim is under twelve (12) years of age shall be reclusion temporal in its medium
period; x x x. (Italics supplied.)
The elements of sexual abuse under the above provision are as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct.
2. The said act is performed with a child exploited in prostitution or subjected to
other sexual abuse.
3. The child, whether male or female, is below 18 years of age. 48
AAA testified that in November 2000, while she and appellant were inside the
bedroom, he went on top of her and rubbed his penis against her vaginal orifice
until he ejaculated.49 She likewise stated in open court that on May 27, 2001,
while inside their comfort room, appellant rubbed his penis against her vagina
while they were in a standing position.50 In both instances, there was no
penetration, or even an attempt to insert his penis into her vagina.
The aforesaid acts of the appellant are covered by the definitions of "sexual
abuse" and "lascivious conduct" under Section 2(g) and (h) of the Rules and
Regulations on the Reporting and Investigation of Child Abuse Cases
promulgated to implement the provisions of R.A. 7610:
(g) "Sexual abuse" includes the employment, use, persuasion, inducement,
enticement or coercion of a child to engage in, or assist another person to
engage in, sexual intercourse or lascivious conduct or the molestation,
prostitution, or incest with children;
(h) "Lascivious conduct" means the intentional touching, either directly or
through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or
the introduction of any object into the genitalia, anus or mouth, of any person,
whether of the same or opposite sex, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or public area of a person.
Page 13 of 158

Following the "variance doctrine" embodied in Section 4, in relation to Section 5,

Rule 120 of the Rules of Criminal Procedure, appellant can be found guilty of the
lesser crime of Acts of Lasciviousness committed against a child. The pertinent
provisions read:
Sec. 4. Judgment in case of variance between allegation and proof. When
there is variance between the offense charged in the complaint or information
and that proved, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the offense
proved which is included in the offense charged, or of the offense charged which
is included in the offense proved.
Sec. 5. When an offense includes or is included in another. An offense charged
necessarily includes the offense proved when some of the essential elements or
ingredients of the former, as alleged in the complaint or information, constitute
the latter. And an offense charged is necessarily included in the offense proved,
when the essential ingredients of the former constitute or form part of those
constituting the latter.
As the crime was committed by the father of the offended party, the alternative
circumstance of relationship should be appreciated. In crimes against chastity,
such as Acts of Lasciviousness, relationship is always aggravating. 51
Section 5(b) of R.A. 7610 prescribes the penalty of reclusion temporal in its
medium period to reclusion perpetua. Since there is an aggravating circumstance
and no mitigating circumstance, the penalty shall be applied in its maximum
period --- reclusion perpetua for each count.52
Consistent with previous rulings53 of the Court, appellant must also indemnify
AAA in the amount of P15,000.00 as moral damages and pay a fine in the same
amount in Criminal Case Nos. 1649 and 1654.
Criminal Case Nos. 1644 and 1645 for Acts of Lasciviousness
Appellant is likewise guilty of two (2) counts of Acts of Lasciviousness under
Section 5(b), Article III, R.A. 7610 committed against AAA on the second week of
August 1999 and on the first week of September 1999. AAA testified that in
August, appellant, with lewd design, inserted his hands inside her shirt then
fondled her breasts; and in September, he forced her to hold his penis until he
ejaculated.
The trial and the appellate courts were correct in giving credence to the victims
testimony, in dismissing appellants defense of denial and alibi, and in
disbelieving that AAA initiated the criminal cases only upon the prodding of the
latters grandmother. Settled jurisprudence tells us that the mere denial of ones
Page 14 of 158

involvement in a crime cannot take precedence over the positive testimony of the
offended party.54
We are not unmindful of the fact that appellant was specifically charged in an
Information for Acts of Lasciviousness defined and penalized by Article 336 of the
RPC. However, the failure to designate the offense by statute, or to mention the
specific provision penalizing the act, or an erroneous specification of the law
violated, does not vitiate the information if the facts alleged clearly recite the facts
constituting the crime charged.55 The character of the crime is not determined by
the caption or preamble of the information nor from the specification of the
provision of law alleged to have been violated, but by the recital of the ultimate
facts and circumstances in the complaint or information.56
In the present case, the body of the information contains an averment of the acts
alleged to have been committed by appellant which unmistakably refers to acts
punishable under Section 5(b), Article III, R.A. 7610.
Appellant should, therefore, be meted the same penalties and be made to
answer for damages as in Criminal Case Nos. 1649 and 1654.
Criminal Case No. 1651 for Attempted Rape
AAA testified that on November 24, 2000, while AAA and her brothers were
sleeping inside their parents bedroom, appellant entered and asked AAA to have
sex with him. When AAA refused, appellant forcibly removed her clothes and
boxed her right buttock. As she still resisted, he took a bolo, which he poked at
her. Appellant desisted from committing further acts because of the timely arrival
of AAAs grandmother. With these, appellant was charged with Other Light
Threats in Criminal Case No. 1650; Attempted Rape in Criminal Case No. 1651;
Unjust Vexation in Criminal Case No. 1652; and Maltreatment in Criminal Case
No. 1653.
On September 24, 2004, the RTC dismissed Criminal Case Nos. 1650, 1652 and
1653 for insufficiency of evidence. Criminal Case No. 1651, among others,
proceeded, however. Eventually, appellant was convicted of Attempted Rape,
which the CA affirmed.
A careful review of the records reveals, though, that the evidence is insufficient to
support appellants conviction of Attempted Rape.
Rape is attempted when the offender commences the commission of rape
directly by overt acts and does not perform all the acts of execution by reason of
some cause or accident other than his own spontaneous desistance. 57 The
prosecution must, therefore, establish the following elements of an attempted
felony:
Page 15 of 158

1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;
3. The offenders act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or accident
other than his spontaneous desistance.58
The attempt that the RPC punishes is that which has a logical connection to a
particular, concrete offense; and that which is the beginning of the execution of
the offense by overt acts of the perpetrator, leading directly to its realization and
consummation.59 In the instant case, the primary question that comes to the fore
is whether or not appellants act of removing AAAs pants constituted an overt act
of Rape.
We answer in the negative.
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.60
The evidence on record does not show that the above elements are present. The
detailed acts of execution showing an attempt to rape are simply lacking. It would
be too strained to construe appellants act of removing AAAs pants as an overt
act that will logically and necessarily ripen into rape. Hence, appellant must be
acquitted of Attempted Rape.
Neither can we hold appellant liable for Other Light Threats for threatening AAA
with a bolo; for Unjust Vexation for undressing her without her consent, causing
disturbance, torment, distress, and vexation; nor for Maltreatment for boxing the
right side of AAAs buttocks. Although all of the above acts were alleged in the
Information for Attempted Rape in the Order dated September 24, 2004, Criminal
Case Nos. 1650, 1652 and 1653 involving the above crimes were dismissed for
insufficiency of evidence based on the demurrer to evidence filed by appellant.
The order granting appellants demurrer to evidence was a resolution of the case
on the merits, and it amounted to an acquittal. Any further prosecution of the
accused after an acquittal would violate the proscription on double jeopardy.61
Accordingly, appellants conviction of any of the above crimes, even under
Criminal Case No. 1651, would trench in his constitutional right against double
jeopardy.
Page 16 of 158

Criminal Case No. 1655 for Unjust Vexation

Appellant was charged with Unjust Vexation, defined and penalized by Article
287 of the RPC, which reads:
ART. 287. Light coercions. Any person who, by means of violence, shall seize
anything belonging to his debtor for the purpose of applying the same to the
payment of the debt, shall suffer the penalty of arresto mayor in its minimum
period and a fine equivalent to the value of the thing, but in no case less than 75
pesos.
Any other coercion or unjust vexation shall be punished by arresto menor or a
fine ranging from 5 to 200 pesos, or both.
The second paragraph of this provision is broad enough to include any human
conduct that, although not productive of some physical or material harm, could
unjustifiably annoy or vex an innocent person. The paramount question to be
considered is whether the offenders act caused annoyance, irritation, torment,
distress, or disturbance to the mind of the person to whom it was directed. 62
Appellants acts of embracing, dragging and kissing AAA in front of her friend
annoyed AAA. The filing of the case against appellant proved that AAA was
disturbed, if not distressed by the acts of appellant.
The penalty for coercion falling under the second paragraph of Article 287 of the
RPC is arresto menor or a fine ranging from P5.00 to P200.00 or both.
Accordingly, appellant is sentenced to 30 days of arresto menor and to pay a fine
of P200.00, with the accessory penalties thereof.
WHEREFORE, the Court AFFIRMS the January 31, 2008 Court of Appeals
Decision in CA-G.R. CR No. 30045 with MODIFICATIONS. The Court finds
appellant Salvino Sumingwa:
1. GUILTY of QUALIFIED RAPE in Criminal Case No. 1646. He is sentenced to
suffer the penalty of reclusion perpetua without eligibility for parole and ordered
to pay AAA P75,000.00 as civil indemnity, P75,000.00 as moral damages, and
P30,000.00 as exemplary damages.
2. GUILTY of four (4) counts of ACTS OF LASCIVIOUSNESS under Section 5 (b)
Article III of R.A. 7610 in Criminal Case Nos. 1644, 1645, 1649, and 1654. He is
sentenced to suffer the penalty of reclusion perpetua and ordered to pay AAA
P15,000.00 as moral damages and a fine of P15,000.00, for EACH COUNT.
3. NOT GUILTY in Criminal Case No. 1651.

Page 17 of 158

4. GUILTY of UNJUST VEXATION in Criminal Case No. 1655. He is sentenced to

suffer 30 days of arresto menor and to pay a fine of P200.00, with the accessory
penalties thereof.
SO ORDERED.
G.R. No. 188560

December 15, 2010

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
RICKY ALFREDO y NORMAN, Accused-Appellant.
DECISION
VELASCO, JR., J.:
The Case
This is an appeal from the September 30, 2008 Decision 1 of the Court of Appeals
(CA) in CA-G.R. CR-H.C. No. 02135 entitled People of the Philippines v. Ricky
Alfredo y Norman, which affirmed an earlier decision 2 in Criminal Case Nos. 01CR-4213 and 01-CR-4214of the Regional Trial Court (RTC), Branch 62 in La
Trinidad, Benguet. The RTC found accused-appellant Ricky Alfredo y Norman
guilty beyond reasonable doubt of two counts of rape.
The Facts
Accused-appellant was charged in two (2) separate Informations, the accusatory
portions of which read:
Criminal Case No. 01-CR-4213
That sometime in the period from April 28-29, 2001, at Cadian, Topdac,
Municipality of Atok, Province of Benguet, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, by means of force,
intimidation and threats, did then and there willfully, unlawfully and feloniously
have carnal knowledge with one [AAA], 3 a thirty six (36) year old woman, against
her will and consent, to her damage and prejudice.
CONTRARY TO LAW.4
Criminal Case No. 01-CR-4214
That sometime in the period from April 28-29, 2001, at Cadian, Topdac,
Municipality of Atok, Province of Benguet, Philippines, and within the jurisdiction
of the Honorable Court, the above-named accused, by means of force,
intimidation and threats, did then and there willfully, unlawfully and feloniously
Page 18 of 158

commit an act of sexual assault by inserting a flashlight into the vagina of one
[AAA], a thirty six (36) year old woman, against her will and consent, to her
damage and prejudice.
CONTRARY TO LAW.5
On June 21, 2001, accused-appellant, with the assistance of counsel, pleaded
not guilty to both charges. Thereafter, trial on the merits ensued.
During the trial, the prosecution offered the oral testimonies of the victim, AAA;
her 10-year old son, BBB; Ernesto dela Cruz; Police Officer 3 James Ruadap;
and Dr. Alma Ged-ang. On the other hand, the defense presented as its
witnesses accused-appellant himself; his mother, Remina; his sister, Margaret;
Hover Cotdi; Jona Canuto; and Pina Mendoza.6
The Prosecutions Version of Facts
In March 2001, AAA, who was six months pregnant, went home to Butiyao,
Benguet, along with her family, to harvest the peppers planted in their garden. On
April 27, 2001, AAA and her son, BBB, returned to their sayote plantation in
Cadian, Topdac, Atok, Benguet to harvest sayote. The following day, or on April
28, 2001, AAA had the harvested sayote transported to Baguio City. Later that
night, she and her son stayed at their rented shack and retired early to bed. 7
In the middle of the night, AAA was awakened by a beam of light coming from the
gaps in the walls of the shack directly illuminating her face. She then inquired
who the person was, but nobody answered. Instead, the light was switched off.
After a few minutes, the light was switched on again. 8 Thereafter, a male voice
shouted, "Rumwar kayo ditta no saan kayo nga rumwar paletpeten kayo iti
bala!"9 AAA remained seated. Then, the male voice uttered, "Lukatam daytoy no
saan mo nga lukatan bilangan ka, maysa, duwa"10 AAA immediately woke BBB
up. Just then, the male voice said, "Pabitaken kayo iti bala."11 AAA cried out of
fear.12
Anxious that the person outside would kill her and her son, AAA lit the gas lamp
placed on top of the table, and opened the door while her son stood beside it. As
the door opened, she saw accused-appellant directly in front of her holding a
flashlight. AAA did not immediately recognize accused-appellant, as his hair was
long and was covering his face. She invited him to come inside the shack, but the
latter immediately held her hair and ordered her to walk uphill. 13 Helpless and
terrified, AAA obeyed him. All the while, accused-appellant was behind her.14
Upon reaching a sloping ground, accused-appellant ordered AAA to stop.
Thereafter, accused-appellant placed the lit flashlight in his pocket and ordered
AAA to remove her clothes. When she refused, accused-appellant boxed her left
Page 19 of 158

eye and removed her clothes. When she also attempted to stop accusedappellant, the latter angrily slapped her face. Completely naked, AAA was again
ordered to walk uphill.15
Upon reaching a grassy portion and a stump about one foot high, accusedappellant ordered AAA to stop and lie on top of the stump, after accusedappellant boxed her thighs. Accused-appellant then bent down and spread open
AAAs legs. After directing the beam of the flashlight on AAAs naked body,
accused-appellant removed his pants, lowered his brief to his knees, went on top
of her, and inserted his penis into her vagina. Accused-appellant threatened to
box her if she moves.16
Accused-appellant also held AAAs breast, as well as the other parts of her body.
He shifted the flashlight from one hand to another while he moved his buttocks
up and down. AAA cried as she felt severe pain in her lower abdomen. Accusedappellant stood up and directed the beam of the flashlight on her after he was
satisfied.17
Ten minutes later, accused-appellant went on top of AAA again and inserted his
penis into her vagina and moved his buttocks up and down. After being satisfied,
accused-appellant stood up and lit a cigarette.18
Afterwards, accused-appellant went on top of AAA again and tried to insert his
penis in the latters vagina. His penis, however, has already softened. Frustrated,
accused-appellant knelt and inserted his fingers in her vagina. After removing his
fingers, accused-appellant held a twig about 10 inches long and the size of a
small finger in diameter which he used to pierce her vagina. Dissatisfied,
accused-appellant removed the twig and inserted the flashlight in her vagina. 19
After accused-appellant removed the flashlight from AAAs vagina, he went on
top of her again, pressing his elbows on her upper breasts and boxing her
shoulders and thighs. Subsequently, accused-appellant stood up and warned her
not to report the incident to the authorities. Immediately after, he left her at the
scene.20
Since she was too weak to walk, AAA rested for about 15 minutes before she got
up and went back to the shack where she immediately woke her son up.
Thereafter, they proceeded to the highway and boarded a jeep to Camp 30, Atok,
Benguet. She also went to Sayangan, Atok, Benguet the following day to report
the incident to the police authorities.21
Upon medical examination, Dr. Ged-ang found that AAA had a subconjunctival
hemorrhage on the right eye and multiple head injuries, which may have been
caused by force such as a blow, a punch, or a hard object hitting the eye. There
was also tenderness on the upper part of the back of AAA, as well as on her left
Page 20 of 158

infraclavicular area below the left clavicle, left flank area or at the left side of the
waist, and medial aspect on the inner part of the thigh. Moreover, there were also
multiple linear abrasions, or minor straight open wounds on the skin of her
forearms and legs caused by sharp objects with rough surface. 22
Apart from the external examination, Dr. Ged-ang also conducted an internal
examination of the genitalia of AAA. Dr. Ged-ang found that there was confluent
abrasion on the left and medial aspects of her labia minora about five
centimeters long and a confluent circular abrasion caused by a blunt, rough
object that has been forcibly introduced into the genitalia. 23
Version of the Defense
In the morning of April 28, 2001, accused-appellant was allegedly working in the
sayote plantation near his house. At noontime, he went home to eat his lunch.
After having lunch, his mother told him to bring the pile of sayote she harvested
to the edge of the road. Accused-appellant went to the place where the pile of
harvested sayote was placed. However, when he reached that place, he claimed
that he saw AAA gathering the sayote harvested by his mother and placing them
in a sack.24
Upon seeing what AAA was doing, accused-appellant shouted at her, prompting
AAA to run away with her son and leave the sack of sayote. When they left,
accused-appellant started placing the harvested sayote in the sack. He was able
to fill eight sacks. Remembering that his mother told him that he would be able to
fill 10 sacks all in all, accused-appellant went to the shack of AAA after bringing
the eight sacks near the road. He suspected that she and her son were the ones
who took the two missing sacks of sayote.25
When he arrived at the place where AAA and her son were staying, accusedappellant allegedly saw them packing sayote, and he also supposedly saw a
sack of sayote with the name of his father printed on it. For this reason, accusedappellant got mad and told AAA to go away and leave the place because what
they were doing was wrong. AAA replied by saying that she would wait for Hover
Cotdi, the owner of the sayote plantation and the shack, to ask for permission to
leave. All this time, accused-appellant was allegedly speaking in an angry but
non-threatening voice. Nonetheless, while he was confronting AAA, her son ran
into the shack and stayed there.26
Before leaving the place, accused-appellant told AAA that the sacks of sayote
belonged to his family, although he decided not to take them back anymore. He
supposedly left after five oclock in the afternoon and arrived at their house at
around seven oclock in the evening. During this time, all his family members
were watching television on Channel 3. Accused-appellant joined them in
Page 21 of 158

watching a Tagalog movie. He then allegedly went to bed at 10 oclock in the

evening, while his parents continued to watch television until 11 oclock in the
evening.27
The following morning, on April 29, 2001, accused-appellant woke up between
six to seven oclock in the morning. After having breakfast, he helped his mother
clean the sayote farm. At around eight oclock in the morning, he saw AAA by the
road waiting for a ride with a baggage placed in a carton box. His mother then
went down the road and talked to AAA, leaving accused-appellant behind. He
claimed to pity AAA upon seeing her but could not do anything. 28
Ruling of the Trial Court
Between the two conflicting versions of the incident, the trial court gave credence
to the version of the prosecution and rendered its Decision dated February 17,
2006, finding accused-appellant guilty of two counts of rape. The decretal portion
reads:
WHEREFORE, in view of the foregoing, the Court finds RICKY ALFREDO y
NORMAN guilty beyond reasonable doubt of the crime of Rape in Criminal Case
No. 01-CR-4213 and sentences him to suffer the penalty of reclusion perpetua
including all the accessory penalties imposed by law.
The Court, likewise, finds him guilty beyond reasonable doubt of the crime of
Rape in Criminal Case No. 01-CR-4214 and sentences him to suffer the
indeterminate penalty of imprisonment of three (3) years, two (2) months and one
(1) day of prision correccional, as minimum, and eight (8) years, two (2) months
and one (1) day of prision mayor, as maximum.
For each count of rape, he shall pay [AAA] the sum of Fifty Thousand Pesos
(Php50,000.00) by way of civil indemnity and the sum of Fifty Thousand Pesos
(P50,000.00) by way of moral damages.
Pursuant to Administrative Circular No. 4-92-A of the Court Administrator, the
Provincial Jail Warden of Benguet Province is directed to immediately transfer
the said accused, Ricky Alfredo y Norman to the custody of the Bureau of
Corrections, Muntinlupa City, Metro Manila after the expiration of fifteen (15) days
from date of promulgation unless otherwise ordered by the court.
Let a copy of this Judgment be furnished the Provincial Jail Warden of Benguet
Province for his information, guidance and compliance.
SO ORDERED.29
Pursuant to our pronouncement in People v. Mateo,30 modifying the pertinent
provisions of the Revised Rules on Criminal Procedure insofar as they provide
Page 22 of 158

for direct appeals from the Regional Trial Court to this Court in cases in which the
penalty imposed by the trial court is death, reclusion perpetua, or life
imprisonment, the case was transferred, for appropriate action and disposition, to
the CA.
On August 17, 2006, accused-appellant filed his Brief for Accused-Appellant, 31
while the People of the Philippines, through the Office of the Solicitor General,
filed its Brief for the Plaintiff-Appellee32 on January 18, 2007.
Ruling of the Appellate Court
As stated above, the CA, in its Decision dated September 30, 2008, affirmed the
judgment of conviction by the trial court.33
Undaunted, accused-appellant filed a motion for reconsideration, which was
denied by the CA in its Resolution dated March 19, 2009. 34
On April 21, 2009, accused-appellant filed his Notice of Appeal 35 from the CA
Decision dated September 30, 2008.
In our Resolution dated September 14, 2009, 36 we notified the parties that they
may file their respective supplemental briefs if they so desired. On November 9,
2009, the People of the Philippines manifested that it is no longer filing a
supplemental brief, as it believed that all the issues involved in the present
controversy have been succinctly discussed in the Brief for the Appellee.37 On the
other hand, on January 26, 2010, accused-appellant filed his supplemental brief.
The Issues
Accused-appellant contends in his supplemental brief that:
I.
BY THE NATURE OF THE OFFENSE IN THE TWO (2) INFORMATIONS FILED
AGAINST ACCUSED-APPELLANT, THE LATTER HAS NO OTHER PLAUSIBLE
DEFENSE EXCEPT ALIBI THAT SHOULD NOT JUST BE BRUSHED ASIDE IF
THERE ARE MATERIAL INCONSISTENSIES IN THE CLAIMS OF THE
WITNESSES FOR THE PROSECUTION;
II.
THE DECISION CONVICTING ACCUSED-APPELLANT HEAVILY RELIED ON
THE DEMEANOR OF THE WITNESSES FOR THE PROSECUTION DURING
THE TRIAL WHEN THE PONENTE OF THE DECISION DID NOT HAVE ANY
OPPORTUNITY TO HEAR THE WITNESSES;
Page 23 of 158

III.
THE THEN AND THERE CONDUCT OF ACCUSED-APPELLANT IS UNLIKELY
TO YIELD A GUILTY VERDICT.38
The Courts Ruling
We sustain accused-appellants conviction.
Alibi is an inherently weak defense
In his supplemental brief, accused-appellant contends that he could not offer any
other defense except denial and alibi, as he could not distort the truth that he was
in his house at the time of the alleged rape in the evening of April 28, 2001 up to
the wee hours of April 29, 2001. He contends that although denial and alibi are
the weakest defenses in criminal cases, consideration should also be given to
the fact that denial becomes the most plausible line of defense considering the
nature of the crime of rape where normally only two persons are involved. 39
It should be noted that for alibi to prosper, it is not enough for the accused to
prove that he was in another place when the crime was committed. He must
likewise prove that it was physically impossible for him to be present at the crime
scene or its immediate vicinity at the time of its commission. 40
A review of the records in the instant case would reveal that accused-appellant
failed to present convincing evidence that he did not leave his house, which is
only about 150 meters away from the shack of AAA, in the evening of April 28,
2001. Significantly, it was also not physically impossible for accused-appellant to
be present on the mountain where he allegedly raped AAA at the time it was said
to have been committed.
Moreover, it has been held, time and again, that alibi, as a defense, is inherently
weak and crumbles in light of positive identification by truthful witnesses. 41 It is
evidence negative in nature and self-serving and cannot attain more credibility
than the testimonies of prosecution witnesses who testify on clear and positive
evidence.42 Thus, there being no strong and credible evidence adduced to
overcome the testimony of AAA, no weight can be given to the alibi of accusedappellant.
In addition, even if the alibi of accused-appellant appears to have been
corroborated by his mother, Remina, and his sister, Margaret, said defense is
unworthy of belief not only because accused-appellant was positively identified
by AAA, but also because it has been held that alibi becomes more unworthy of
merit where it is established mainly by the accused himself and his or her
relatives, friends, and comrades-in-arms,43 and not by credible persons.44
Page 24 of 158

As between the statement made in an affidavit and that given in open court,
the latter is superior
Accused-appellant contends also that there were material inconsistencies in the
testimonies of the prosecution witnesses and in the latters respective affidavits,
to wit: (1) whether accused-appellants penis was erect or not; and (2) whether
AAA indeed recognized accused-appellant when they were already on the
mountain or while they were still in the shack.45
AAA testified in open court that accused-appellant tried to insert his penis into her
vagina several times but was unable to do so since his penis has already
softened.46 On the other hand, AAA stated in her affidavit that "the suspect
ordered me to lay [sic] flatly on the ground and there he started to light and view
my whole naked body while removing his pant [sic] and tried to insert his pennis
[sic] on [sic] my vagina but I wonder it does not errect [sic]." 47 There is no
inconsistency between AAAs testimony and her affidavit. The only difference is
that she failed to state in her affidavit that before accused-appellant
unsuccessfully tried to insert his penis into AAAs vagina, he had already
succeeded twice in penetrating her private organ.
There is likewise no incompatibility between AAAs affidavit stating that she came
to know of accused-appellant as the culprit when they were on the mountain and
his flashlight illuminated his face as he lay on top of her, and her testimony that
while they were still in the shack, AAA was "not then sure" but already suspected
that her rapist was accused-appellant "because of his hair." 48 In other words, AAA
was not yet sure whether accused-appellant was the culprit while they were still
in the shack, as she only became positively certain that it was him when the
flashlight illuminated his face while they were on the mountain. 49
Nevertheless, discrepancies do not necessarily impair the credibility of a witness,
for affidavits, being taken ex parte, are almost always incomplete and often
inaccurate for lack of searching inquiries by the investigating officer or due to
partial suggestions, and are, thus, generally considered to be inferior to the
testimony given in open court.50
The validity of conviction is not adversely affected by the fact that the
judge who rendered judgment was not the one who heard the witnesses
Accused-appellant contends further that the judge who penned the appealed
decision is different from the judge who heard the testimonies of the witnesses
and was, thus, in no position to render a judgment, as he did not observe
firsthand their demeanor during trial.
We do not agree. The fact that the trial judge who rendered judgment was not the
one who had the occasion to observe the demeanor of the witnesses during trial,
Page 25 of 158

but merely relied on the records of the case, does not render the judgment
erroneous, especially where the evidence on record is sufficient to support its
conclusion.51 As this Court held in People v. Competente:
The circumstance that the Judge who rendered the judgment was not the
one who heard the witnesses, does not detract from the validity of the
verdict of conviction. Even a cursory perusal of the Decision would show that it
was based on the evidence presented during trial and that it was carefully
studied, with testimonies on direct and cross examination as well as questions
from the Court carefully passed upon.52 (Emphasis supplied.)
Further, the transcripts of stenographic notes taken during the trial were extant
and complete. Hence, there was no impediment for the judge to decide the case.
The guilt of accused-appellant has been established beyond reasonable
doubt
After a careful examination of the records of this case, this Court is satisfied that
the prosecutions evidence established the guilt of accused-appellant beyond
reasonable doubt.
In reviewing the evidence in rape cases, the following considerations should be
made: (1) an accusation for rape can be made with facility, it is difficult to prove
but more difficult for the person, though innocent, to disprove; (2) in view of the
intrinsic nature of the crime of rape where only two persons are usually involved,
the testimony of the complainant must be scrutinized with extreme caution; and
(3) the evidence for the prosecution must stand or fall on its own merits and
cannot be allowed to draw strength from the weakness of the evidence for the
defense.53 Nonetheless, it is also worth noting that rape is essentially committed
in relative isolation or secrecy; thus, it is most often only the victim who can
testify with regard to the fact of forced coitus. 54
In the instant case, accused-appellant is charged with two counts of rapeone
under paragraph 1(a) of Article 266-A of the Revised Penal Code and the other
under par. 2 of Art. 266-A.
Pertinently, the elements of rape under par. 1(a) of Art. 266-A of the Code are the
following: (1) that the offender is a man; (2) that the offender had carnal
knowledge of a woman; and (3) that such act is accomplished by using force or
intimidation.55
On the other hand, the elements of rape under par. 2 of Art. 266-A of the Code
are as follows: (1) that the offender commits an act of sexual assault; (2) that the
act of sexual assault is committed by inserting his penis into another persons
mouth or anal orifice or by inserting any instrument or object into the genital or
Page 26 of 158

anal orifice of another person; and that the act of sexual assault is accomplished
by using force or intimidation, among others.56
Notably, the prosecution has sufficiently established the existence of the
foregoing elements. When AAA was called to the witness stand, she gave a
detailed narration of the incident that transpired in the evening of April 28, 2001
and early morning of April 29, 2001. AAA categorically asserted that accusedappellant had carnal knowledge of her and even sexually assaulted her against
her will with the use of force, threat, or intimidation.
Particularly, AAA testified that accused-appellant threatened to riddle her and her
son with bullets if they do not open the door of their shack. Accused-appellant
thereafter forcibly pulled her hair and dragged her to the mountains. AAA pleaded
for her life. Nonetheless, accused-appellant boxed her every time she did not
yield to his demands. He boxed her thighs forcing AAA to sit, and he threatened
to box her if she moves while he carried out his bestial desires. 57
AAA testified further that after accused-appellant satisfied his lust, he sexually
assaulted her. He inserted his fingers into her vagina and then he tried to pierce
the same with a twig. Subsequently, he inserted his flashlight into her vagina. 58
AAA was too weak to stop him. She had struggled to free herself from accusedappellant from the moment she was dragged from the shack until they reached
the mountains. However, accused-appellant still prevailed over her. Notably, AAA
was six months pregnant at that time. She was frightened and hopeless. 59
Also, it should be noted that the findings in the medical examination of Dr. Gedang corroborated the testimony of AAA. While a medical examination of the
victim is not indispensable in the prosecution of a rape case, and no law requires
a medical examination for the successful prosecution of the case, the medical
examination conducted and the medical certificate issued are veritable
corroborative pieces of evidence, which strongly bolster AAAs testimony.60
Moreover, the police found the red t-shirt and blue shorts of AAA in the place
where accused-appellant was said to have removed her clothes. In addition,
AAAs son, BBB, testified as to how accused-appellant threatened them in the
evening of April 28, 2001, how he was able to identify accused-appellant as the
perpetrator, and what his mother looked like when she returned home in the early
morning of April 29, 2001. According to BBB, his mother was naked except for a
dirty white jacket she was wearing. He also noticed that his mother had wounds
and blood all over her body. All these are consistent with the testimony of AAA. 61
All told, we accordingly sustain accused-appellants conviction.
Award of Damages
Page 27 of 158

The decision of the CA as to the damages awarded must be modified. For rape
under Art. 266-A, par. 1(d) of the Revised Penal Code, the CA was correct in
awarding PhP 50,000 as civil indemnity and PhP 50,000 as moral damages.
However, for rape through sexual assault under Art. 266-A, par. 2 of the Code,
the award of damages should be PhP 30,000 as civil indemnity and PhP 30,000
as moral damages.62
We explained in People v. Cristobal that "for sexually assaulting a pregnant
married woman, the accused has shown moral corruption, perversity, and
wickedness. He has grievously wronged the institution of marriage. The
imposition then of exemplary damages by way of example to deter others from
committing similar acts or for correction for the public good is warranted." 63
Notably, there were instances wherein exemplary damages were awarded
despite the absence of an aggravating circumstance. As we held in People v.
Dalisay:
Prior to the effectivity of the Revised Rules of Criminal Procedure, courts
generally awarded exemplary damages in criminal cases when an aggravating
circumstance, whether ordinary or qualifying, had been proven to have attended
the commission of the crime, even if the same was not alleged in the information.
This is in accordance with the aforesaid Article 2230. However, with the
promulgation of the Revised Rules, courts no longer consider the aggravating
circumstances not alleged and proven in the determination of the penalty and in
the award of damages. Thus, even if an aggravating circumstance has been
proven, but was not alleged, courts will not award exemplary damages. x x x
xxxx
Nevertheless, People v. Catubig laid down the principle that courts may still
award exemplary damages based on the aforementioned Article 2230, even if the
aggravating circumstance has not been alleged, so long as it has been proven, in
criminal cases instituted before the effectivity of the Revised Rules which
remained pending thereafter. Catubig reasoned that the retroactive application of
the Revised Rules should not adversely affect the vested rights of the private
offended party.
Thus, we find, in our body of jurisprudence, criminal cases, especially those
involving rape, dichotomized: one awarding exemplary damages, even if an
aggravating circumstance attending the commission of the crime had not been
sufficiently alleged but was consequently proven in the light of Catubig; and
another awarding exemplary damages only if an aggravating circumstance has
both been alleged and proven following the Revised Rules. Among those in the
first set are People v. Laciste, People v. Victor, People v. Orilla, People v.
Calongui, People v. Magbanua, People of the Philippines v. Heracleo Abello y
Page 28 of 158

Fortada, People of the Philippines v. Jaime Cadag Jimenez, and People of the
Philippines v. Julio Manalili. And in the second set are People v. Llave, People of
the Philippines v. Dante Gragasin y Par, and People of the Philippines v. Edwin
Mejia. Again, the difference between the two sets rests on when the criminal case
was instituted, either before or after the effectivity of the Revised Rules.
xxxx
Nevertheless, by focusing only on Article 2230 as the legal basis for the grant of
exemplary damages taking into account simply the attendance of an
aggravating circumstance in the commission of a crime, courts have lost sight of
the very reason why exemplary damages are awarded. Catubig is enlightening
on this point, thus
Also known as "punitive" or "vindictive" damages, exemplary or corrective
damages are intended to serve as a deterrent to serious wrong doings, and
as a vindication of undue sufferings and wanton invasion of the rights of
an injured or a punishment for those guilty of outrageous conduct. These
terms are generally, but not always, used interchangeably. In common law,
there is preference in the use of exemplary damages when the award is to
account for injury to feelings and for the sense of indignity and humiliation
suffered by a person as a result of an injury that has been maliciously and
wantonly inflicted, the theory being that there should be compensation for
the hurt caused by the highly reprehensible conduct of the defendant
associated with such circumstances as willfulness, wantonness, malice,
gross negligence or recklessness, oppression, insult or fraud or gross
fraud that intensifies the injury. The terms punitive or vindictive
damages are often used to refer to those species of damages that may be
awarded against a person to punish him for his outrageous conduct. In
either case, these damages are intended in good measure to deter the
wrongdoer and others like him from similar conduct in the future.
Being corrective in nature, exemplary damages, therefore, can be awarded,
not only in the presence of an aggravating circumstance, but also where
the circumstances of the case show the highly reprehensible or outrageous
conduct of the offender. In much the same way as Article 2230 prescribes an
instance when exemplary damages may be awarded, Article 2229, the main
provision, lays down the very basis of the award. Thus, in People v. Matrimonio,
the Court imposed exemplary damages to deter other fathers with perverse
tendencies or aberrant sexual behavior from sexually abusing their own
daughters. Also, in People v. Cristobal, the Court awarded exemplary damages
on account of the moral corruption, perversity and wickedness of the accused in
sexually assaulting a pregnant married woman. Recently, in People of the
Philippines v. Cristino Caada, People of the Philippines v. Pepito Neverio and
Page 29 of 158

The People of the Philippines v. Lorenzo Layco, Sr., the Court awarded
exemplary damages to set a public example, to serve as deterrent to elders who
abuse and corrupt the youth, and to protect the latter from sexual
abuse.1avvphi1
It must be noted that, in the said cases, the Court used as basis Article 2229,
rather than Article 2230, to justify the award of exemplary damages. Indeed, to
borrow Justice Carpio Morales words in her separate opinion in People of the
Philippines v. Dante Gragasin y Par, "[t]he application of Article 2230 of the
Civil Code strictissimi juris in such cases, as in the present one, defeats
the underlying public policy behind the award of exemplary damages to
set a public example or correction for the public good."64 (Emphasis
supplied.)
Concomitantly, exemplary damages in the amount of PhP 30,000 should be
awarded for each count of rape, in line with prevailing jurisprudence. 65
WHEREFORE, the appeal is DENIED. The CA Decision dated September 30,
2008 in CA-G.R. CR-H.C. No. 02135 finding accused-appellant Ricky Alfredo
guilty of rape is AFFIRMED with MODIFICATIONS. As thus modified, accusedappellant in Criminal Case No. 01-CR-4213 is ordered to pay PhP 50,000 as civil
indemnity, PhP 50,000 as moral damages, and PhP 30,000 as exemplary
damages. In Criminal Case No. 01-CR-4214, accused-appellant is likewise
ordered to pay PhP 30,000 as civil indemnity, PhP 30,000 as moral damages,
and PhP 30,000 as exemplary damages.
SO ORDERED.
G.R. No. 185202
February 18, 2009
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
FRANCISCO TARUC @ TARUC, Accused-Appellant.
vs

Present:
QUISUMBING, J.,*
CARPIO,**
AUSTRIA-MARTINEZ,
Acting Chairperson,
CHICO-NAZARIO,
PERALTA, JJ.
Promulgated:

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
RESOLUTION
CHICO-NAZARIO, J.:
Page 30 of 158

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of

Court, as amended, assailing the Decision1 of the Court of Appeals dated 27
February 2008 in CA-G.R. CR H.C. No. 01638 entitled, People of the Philippines
v. Francisco Taruc @ Taruc, which affirmed with modification the Decision dated
29 June 2005 of the Regional Trial Court (RTC) of Bataan, Branch 3, in Criminal
Case No. 8010 for murder.
Accused-appellant Francisco Taruc was charged in Criminal Case No. 8010
before the RTC of Bataan, Branch 3, with the crime of murder in connection with
the death of Emelito Sualog.
The Information reads:
That on or about November 8, 1998 at Brgy. Puting Buhangin, Orion, Bataan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to kill, with treachery and evident premeditation, did then and
there willfully, unlawfully and feloniously attack , assault and use personal
violence upon Emelito Sualog @ Elmer, by then and there shooting him with a
Celiber (sic) 45 on the different parts of his body, thereby inflicting upon him
mortal wounds which were the direct and immediate cause of his death,
thereafter, to the damage and prejudice of the heirs of the said victim. 2
Upon arraignment on 25 April 2005, accused, duly assisted by a lawyer from the
Public Attorneys Office (PAO),3 pleaded not guilty to the crime charged.
After trial on the merits, the RTC on 29 June 2005 rendered a Decision 4
convicting the accused, the decretal portion of which reads:
WHEREFORE, accused FRANCISCO TARUC is found GUILTY beyond
reasonable doubt as principal by direct participation pf the crime of MURDER,
defined and penalized under Article 248 of the Revised Penal Code, and with the
attending aggravating circumstance of treachery, is hereby sentenced to suffer
the penalty of DEATH.
Accused Francisco Taruc is likewise ordered to pay the heirs of the victim Emelito
Saulog the amounts of P49,225.00 in actual damages, P50,000.00 in civil
indemnity and P30,000.00 in moral damages.
Issue warrant of arrest against accused Francisco Taruc that he may serve the
sentence imposed against him.5
The case was brought to the Court of Appeals for automatic review pursuant to
A.M. No. 00-5-03-SC6 where it was docketed as CA-G.R. CR No. 01638.
On 13 January 2006, accused-appellant, through the PAO, filed a Motion for
Extension of Time to File Appellants Brief.7
Considering that the Notice to File Brief addressed to accused-appellant was
returned to the appellate court with postal notation "moved out," the Court of
Appeals directed accused-appellants counsel to furnish it with the present and
complete address of his client within five days from notice.
In compliance, the PAO lawyer concerned informed 8 the Court of Appeals that
accused-appellant escaped from prison on 23 August 2002. Said PAO lawyer
claimed that he had no means of knowing the current whereabouts of the
accused-appellant. Thereupon, the PAO lawyer asked the Court of Appeals to
Page 31 of 158

direct the Warden of the Provincial Jail in Balanga, Bataan, to file a certification
as to the accused-appellants escape.
On 20 February 2006, the Court of Appeals required 9 the Warden of the Bataan
Provincial Jail to comment on the afore-stated information relayed by the PAO
lawyer.
On 6 March 2006, Ropadolfo Fabros Torcuato, Sr., Officer-in-Charge (OIC),
Warden of the Bataan Provincial Jail, conveyed 10 to the appellate court that
accused-appellant was indeed committed to said jail on 10 November 2000 but
escaped at about 11:00 p.m. on 23 August 2002.
On 23 March 2006, notwithstanding the escape of accused-appellant from
prison, the Court of Appeals granted PAOs Motion for Extension of Time to File
Appellants Brief, in view of the ruling of the Supreme Court in People v. Flores, 11
making the review of death penalty cases mandatory. The period of extension
granted had lapsed without the accused-appellant filing his brief; thus, the Court
of Appeals required the PAO to show cause why the latter should not be held in
contempt for failing to file the same.12
The Court of Appeals found the explanation valid, and accepted the briefs of both
the appellant and the appellee, and considered the case submitted for decision.
On 27 February 2008, the Court of Appeals rendered a Decision affirming with
modification the Decision of the RTC, the dispositive portion of which reads:
WHEREFORE, the Decision of the Regional Trial Court, Branch 3, City of
Balanga, Bataan in Criminal Case No. 8010 is AFIRMED WITH
MODIFICATIONS. The accused-appellant Francisco Taruc, is found guilty
beyond reasonable doubt of murder qualified by treachery, defined in Article 248
of the Revised Penal Code, as amended by Republic Act No. 7659. In view of
R.A. No. 9346, the modification of the penalty imposed by the trial court from
death to reclusion perpetua is ordered.
The accused-appellant Francisco Taruc is likewise ordered to pay the heirs of the
victim, Emelito Sualog, Fifty Thousand Pesos (P50,000.00) as civil indemnity ex
delicto; Forty-Nine Thousand Two Hundred Fifty Five (P49,255.00) as actual
damages; Fifty Thousand Pesos (P50,000.00) as moral damages and TwentyFive Thousand Pesos (P25,000.00) as exemplary damages. Costs against the
accused-appellant.
On 13 March 2008, accused-appellant, still represented by the PAO, filed a
Notice of Appeal13 stating that he was appealing the Decision of the Court of
Appeals to the Supreme Court on questions of law and fact. And on 29 April
2008, the Court of Appeals gave due course to accused-appellants appeal and
directed its Records Division to forward the rollo and records of the case to the
Supreme Court.14
Hence, this Petition.
As may be gleaned from the records, before the prosecution witness Randy
Espina could be cross-examined,15 accused-appellant escaped from the Bataan
Provincial Jail on 23 August 2002. Thus, the RTC considered the act of the
accused as a waiver to cross-examine said witness. Thereafter, the trial court
promulgated a judgment of conviction while accused-appellant was at large. He
Page 32 of 158

remains at large even while his counsel continues to file various pleadings on his
behalf before the RTC, the Court of Appeals, and this Court.
Given that the accused-appellant escaped from jail and eluded arrest until the
present, the issue of whether he has lost his right to appeal his conviction
inexorably ensues.
An accused is required to be present before the trial court at the promulgation of
the judgment in a criminal case. If the accused fails to appear before the trial
court, promulgation of judgment shall be made in accordance with Rule 120,
Section 6, paragraphs 4 and 5 of the Revised Rules of Criminal Procedure, to
wit:
In case the accused fails to appear at the scheduled date of promulgation of
judgment despite notice, the promulgation shall be made by recording the
judgment in the criminal docket and serving him a copy thereof at his last known
address or thru his counsel.
If the judgment is for conviction and the failure of the accused to appear was
without justifiable cause, he shall lose the remedies available in these Rules
against the judgment and the court shall order his arrest. Within fifteen (15) days
from promulgation of judgment, however, the accused may surrender and file a
motion for leave of court to avail of these remedies. He shall state the reasons for
his absence at the scheduled promulgation and if he proves that his absence
was for a justifiable cause, he shall be allowed to avail of said remedies within
fifteen (15) days from notice. (Emphasis supplied.)
Consistently, Rule 124, Section 8, paragraph 2 of the same Rules allows the
Court of Appeals, upon motion of the appellee or motu proprio, to dismiss the
appeal of the accused-appellant who eludes the jurisdiction of the courts over his
person, viz:
SEC. 8. Dismissal of appeal for abandonment or failure to prosecute. The Court
of Appeals may, upon motion of the appellee or motu proprio and with notice to
the appellant in either case, dismiss the appeal if the appellant fails to file his
brief within the time prescribed by this Rule, except where the appellant is
represented by a counsel de oficio.
The Court of Appeals may also, upon motion of the appellee or motu proprio,
dismiss the appeal if the appellant escapes from prison or confinement,
jumps bail or flees to a foreign country during the pendency of the appeal.
(Emphasis supplied.)
In allowing the dismissal of the appeal of the accused-appellant under the
circumstances identified by the foregoing rule, the Court, in People v. Mapalao, 16
explained that:
[O]nce an accused escapes from prison or confinement or jumps bail or flees to a
foreign country, he loses his standing in court and unless he surrenders or
submits to the jurisdiction of the court he is deemed to have waived any right to
seek relief from the court.
Although Rule 124, Section 8 particularly applies to the Court of Appeals, it has
been extended to the Supreme Court by Rule 125, Section 1 of the Revised
Rules of Criminal Procedure, which reads:
Page 33 of 158

SECTION 1. Uniform procedure. - Unless otherwise provided by the Constitution

or by law, the procedure in the Supreme Court in original and in appealed cases
shall be the same as in the Court of Appeals.
It is indisputable that accused-appellant herein, by escaping from jail, was not
present at the promulgation by the RTC of its Decision dated 29 June 2005 in
Criminal Case No. 8010, finding him guilty of the crime of murder. Accusedappellant failed to surrender and file the required motion within 15 days from the
promulgation of the RTC Decision. This alone already deprived him of any
remedy against said judgment of conviction available under the Revised Rules of
Criminal Procedure, including the right to appeal the same.
The foregoing notwithstanding, the escape of the accused-appellant did not
preclude the Court of Appeals from exercising its review jurisdiction, considering
that what was involved was capital punishment. Automatic review being
mandatory, it is not only a power of the court but a duty to review all death
penalty cases.17
In this case, considering that the penalty imposed by the trial court was death,
the Court of Appeals rightly took cognizance of the case. Upon review by the
appellate court, however, it modified the penalty from death to reclusion
perpetua.
We now come to the resolution of the case.
By escaping prison, accused-appellant impliedly waived his right to appeal. In
People v. Ang Gioc,18 the Court enunciated that:
There are certain fundamental rights which cannot be waived even by the
accused himself, but the right of appeal is not one of them. This right is granted
solely for the benefit of the accused. He may avail of it or not, as he pleases. He
may waive it either expressly or by implication. When the accused flees after the
case has been submitted to the court for decision, he will be deemed to have
waived his right to appeal from the judgment rendered against him x x x.
The accused cannot be accorded the right to appeal unless he voluntarily
submits to the jurisdiction of the court or is otherwise arrested within 15 days
from notice of the judgment against him. 19 While at large, he cannot seek relief
from the court, as he is deemed to have waived the appeal. 20 Thus, having
escaped from prison or confinement, he loses his standing in court; and unless
he surrenders or submits to its jurisdiction, he is deemed to have waived any
right to seek relief from the court.
By putting himself beyond the reach and application of the legal processes of the
land, accused-appellant revealed his contempt of the law and placed himself in a
position to speculate, at his pleasure on his chances for a reversal. In the
process, he kept himself out of the reach of justice, but hoped to render the
judgment nugatory at his option.21 Such conduct is intolerable and does not invite
leniency on the part of the appellate court.22
Accused-appellant, in the case at bar, has remained at large for most of the
proceedings before the RTC, as well as for the entirety of the pendency of his
appeal before the Court of Appeals, and even until now when his appeal is
pending before this Court. He cannot so audaciously hope that his appeal before
this Court would succeed. He only hopes in vain.
Page 34 of 158

WHEREFORE, the appeal is dismissed. Let the records of this case be

remanded to the trial court for the issuance of the mittimus.
SO ORDERED.
G.R. No. 160811
April 14, 2008
RICKY BASTIAN, petitioner,
vs.
HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES,
respondents.
DECISION
REYES, R.T., J.:
COMPARED to appellate magistrates who merely read and rely on the cold and
inanimate pages of the transcript of stenographic notes and the original records
brought before them, the trial judge is in a better position to calibrate the
testimonies of the witnesses at the stand.
The bare claim of responsibility for the killing of the victim by the New Peoples
Army (NPA) does not bind or tie the hands of the Court in determining the real
killer as borne by the evidence.
Di tulad ng mga mahistrado sa apelasyon na tumutunghay at nananalig
lamang sa mga record at stenographic notes, ang hukom sa paglilitis ay
nasa mas mainam na posisyon upang timbangin ang mga salaysay ng mga
testigo.
Ang pag-amin ng NPA sa pagpatay ng biktima ay hindi makapagtatali sa
hukuman upang alamin ang tunay na salarin ayon sa ebidensya.
This is a petition for review on certiorari of the Decision1 of the Court of Appeals
(CA) affirming with modification that2 of the Regional Trial Court (RTC) in Kalibo,
Aklan, Branch 8, finding petitioner Ricky Bastian guilty of homicide, instead of
murder.
The Facts
On April 24, 1995, at around 11:00 p.m., Lorna Bandiola went to Solido
Elementary School in Nabas, Aklan to fetch her children Lorena and Lorsen who
were attending a dance party.3 On her way inside the campus, she saw petitioner
Ricky Bastian, together with co-accused Albino Layasan, Roque Prado and
Renato Prado. The trio were seated on the concrete fence of the school. 4
Lorna did not mind them as she proceeded to the dance hall. 5 Upon reaching the
hall, she learned that the party was still in progress. She decided to while the
time and waited for her children. When the affair ended at around 2:00 a.m.,
Lorna left the school premises with Lorena and Lorsen in tow.
While on their way out of the campus, Lorna saw her son-in-law John Ronquillo,
the victim, about ten (10) arms-stretch ahead of them. Apparently, he also went to
the dance party and was about to go home. 6 It was at that point when Lorna saw
petitioner step ahead of his co-accused. Unexpectedly, petitioner drew a gun and
shot Ronquillo on the head. The victim fell instantaneously. Petitioner continued
shooting while Ronquillo lay sprawled on the ground. 7
Page 35 of 158

Lorna heard petitioners co-accused saying, "He is dead already," before the
group ran away.8 She trembled with fear and had to be helped by Lorena and
Lorsen in going out of the school campus.9
After receiving a dispatch report regarding the shooting incident at the school
grounds, Police Officers Jose Roo, Elmer Villanueva and Ramie Zomil
immediately proceeded to the crime scene. The investigating team arrived at
around 2:50 a.m. They found the dead body of John Ronquillo on the ground,
face up. When they checked the body, they recovered one (1) bullet slug on the
ground, near the back of the victim.
The victims cadaver was later turned over to the Joy Funeral Parlor in Solido,
Nabas, Aklan. There, Dr. Gloria Boliver of the Municipal Health Office conducted
a post-mortem autopsy.
On complaint of the heirs of the victim John Ronquillo, petitioner Ricky Bastian
and his co-accused Albino Layasan, Roque Prado and Renato Prado, were all
indicted for murder in an Information bearing the following accusation:
That on or about the 25th day of April 1995, in the early morning in Barangay
Solido, Municipality of Nabas, Province of Aklan, Republic of the Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused,
confederating together and mutually helping one another, with intent to kill one
JOHN RONQUILLO, with treachery and evident premeditation, while armed with
a gun, did then and there willfully, unlawfully and feloniously attack, assault and
shoot said JOHN RONQUILLO, thereby inflicting upon the latter serious and
mortal wounds, to wit:
1. Gunshot wound, head, at the fronto-parietal region, 1 inch above the right ear,
penetrating the skull and the brain tissue. Wound is round in shape with clean cut
edge (wound entrance).
2. Gunshot wound, oval in shape, abdomen level of the umbilicus, right side of
the lumbar region (entrance).
3. Gunshot wound, abdomen, lumbar region, posterior to wound No. 2 with
irregular edge (wound exit).
4. Gunshot wound, left breast, oval in shape, clean cut edge (entrance).
5. Gunshot wound, right chest, irregular edge (exit).
6. Wound, left arm posterior, irregular edge.
As per Autopsy Report issued by Dr. Gloria Z. Bolivar, Municipal Health Officer of
the Rural Health Unit of Nabas, Aklan, hereto attached and forming an integral
part hereof which wounds directly caused the death of said JOHN RONQUILLO.
That as a result of the criminal acts of the above-named accused, the heirs of the
deceased JOHN RONQUILLO suffered actual and compensatory damages in the
amount of P50,000.00.10
Petitioner waived the conduct of a pre-trial conference, hence, trial on the merits
ensued.
The prosecution evidence, which was portrayed by the foregoing facts, was
principally supplied by Lorna Bandiola, Dr. Gloria Boliver of the Nabas, Aklan
Municipal Health Office, and Jose Roo of the local Philippine National Police
Page 36 of 158

(PNP) office. Their accounts were corroborated in material points by the victims
spouse Analie Ronquillo and Nemelyn Tulio.
Upon the other hand, the defense version founded on denial, was summarized
by the appellate court in the following tenor:
The defense, on the other hand, presented seven (7) witnesses including
accused-appellant, who denied killing J. RONQUILLO and interposed the
defense of alibi. He claimed that in the evening of April 24, 1995, he was in the
house of Barangay Captain VOLTAIRE GARCIA, drinking liquor with the latter
and ALBINO LAYASAN until 12:30 a.m. They were very drunk and were unable
to go home. He went to bed ahead of the others, while GARCIA and LAYASAN
were still conversing (Id. at 9). He woke up at 8 a.m. and learned later at 2 p.m.
of the following day that JOHN was shot. He did not attend the dance party
because he was heavily drunk (TSN, April 4, 2000, pp. 4-6). His testimony was
corroborated by VOLTAIRE GARCIA.11
RTC and CA Dispositions
On March 20, 2001, the trial court convicted petitioner of homicide instead of
murder. In the same breath, the RTC acquitted Layasan and Roque and Renato
Prado of the charge due to insufficient evidence. The fallo of the trial court
judgment reads:
WHEREFORE, premises considered, considering the presence of the
aggravating circumstance of nighttime and applying the Indeterminate Sentence
Law, accused Ricky Bastian is sentenced to suffer the penalty of imprisonment
ranging from TWELVE (12) years of prision mayor in its maximum period as
minimum penalty to SEVENTEEN (17) years, FOUR (4) months and ONE (1)
day of reclusion temporal in its medium period as maximum penalty and to
indemnify the heirs of John Ronquillo the sum of P50,000.00 for the death of the
victim and another sum of P200,000.00 for loss of earning capacity, and another
sum of P10,000.00 as reimbursement of burial expenses, and another sum of
P50,000.00 for moral damages.
For lack of sufficient evidence, accused Albino Layasan, Roque Prado and
Renato Prado are hereby ACQUITTED. No pronouncement as to cost.
SO ORDERED.12
Still dissatisfied, petitioner elevated the matter to the CA. The appeal was
anchored on the lone ground that his guilt was not proven beyond reasonable
doubt. On August 29, 2003, the CA Fifteenth Division affirmed the trial court
disposition with modification as to the damages awarded. The dispositive part of
the CA decision reads:
WHEREFORE, premises considered, the decision of the Regional Trial Court,
Branch 8 of Kalibo, Aklan, is hereby AFFIRMED with modification. Applying the
Indeterminate Sentence Law and absent any modifying circumstance, the
accused-appellant (petitioner) is hereby sentenced to an indeterminate penalty
ranging from ten (10) years of prision mayor as minimum to seventeen (17) years
and four (4) months of reclusion temporal as maximum. He is further ordered to
indemnify the heirs of the victim the amount of P1,800 for burial expenses,
P141,320 for lost earnings of the deceased, P50,000 for death indemnity, and
Page 37 of 158

another P50,000 for moral damages (People v. Morano, G.R. No. 129235, Nov.
18, 2002).
SO ORDERED.13
In reducing the award of damages, the CA opined:
As to the amount of damages awarded, except for the P1,800 burial fee receipt
(Exhibit "G," p. 213, Records) issued by the Nabas Parish Church, no other
official receipts were adduced to prove the actual damages incurred for the burial
expenses. Offered as proof of the expenditures were the certifications issued by
the alleged owners of the funeral parlor and the band. But a certification, by its
nature, is easy to fabricate and as such cannot be admitted in lieu of official
receipts. Hence, the reduction of the burial expense from P10,000 to P1,800. The
well-settled rule is that actual damages cannot be awarded based on the
allegation of a witness without any competent document to support such claim
proof is required to be adequately supported by receipts (People v. Enguito, 326
SCRA 508 [2000]).
Even if the prosecution did not present documentary evidence to support the
claim for loss of earning capacity, testimonial evidence may be sufficient to
establish a basis for which the court can make a fair and reasonable estimate of
damages for loss of earning capacity (People v. Perreras, 362 SCRA 202 [2001]).
In People v. Muyco (331 SCRA 192 [2000]), the Supreme Court held:
To be able to claim damages for loss of earning capacity despite the nonavailability of documentary evidence, there must be oral testimony that: (a) the
victim was self-employed earning less than the minimum wage under the current
labor laws and judicial notice was taken of the fact that in the victims line of work,
no documentary evidence is available; (b) the victim was employed as a daily
wage worker earning less than the minimum wage under current labor laws. x x x
Thus, his heirs are entitled to receive an award for lost earnings in accordance
with the following formula: 2/3 (80 ATD [age at the time of death]) x (GAI [gross
annual income]) 80% GAI.
In the case at bench, no documentary evidence regarding the net income of the
victim was offered that would serve as the basis for the computation of his net
income. But the wife, however, testified that her husband used to earn 50 cavans
of rice every year as a farmer. In their line of employment, no available
documentary evidence could be considered to determine their net income. More
so, this was not disputed by the defense. Thus, following the above formula
= 2/3 (80-27 years x (50 cavans x - 80% (50 cavans x
old)
P400)
P400)
= 2/3 (53)

x (P20,000)

- 80% (P20,000)

= 35.33

x (P20,000)

- (P16,000)

= P141,320
the heirs of JOHN RONQUILLO are entitled to receive P141,320 as an award for
lost earnings.14
Issues
Page 38 of 158

Undaunted, petitioner has resorted to the present recourse, imputing to the CA

triple errors, viz.:
I.
THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED WITH
MODIFICATION, THE DECISION OF THE COURT A QUO DESPITE THE FACT
THAT THE EVIDENCED (SIC) PRESENTED BY THE PROSECUTION WERE
MERELY BASED ON CIRCUMSTANTIAL EVIDENCE THAT WERE TAINTED
WITH INCONSISTENCIES, ASIDE FROM THE FACT THAT THE NPA
PUBLICLY CLAIMS RESPONSIBILITY FOR THE KILLING OF JOHN
RONQUILLO, AFTER FINDING HIM GUILTY OF MURDER AND RAPE;
II.
THAT THE POLICE AUTHORITIES OF NABAS, AKLAN, FAILED AS IT FAILED
TO IDENTIFY THE ASSAILANT OF JOHN RONQUILLO, AND, IN FACT, HAS
NOT INITIATED THE FILING OF FORMAL COMPLAINT BEFORE THE
PROVINCIAL PROSECUTOR, AKLAN, AS THERE ARE NO WITNESSES
PRESENTED BY THE FAMILY OF THE VICTIM UP TO JUNE 20, 1995, FROM
APRIL 25, 1995, THE DATE THE INCIDENT OCCURRED;
III.
THE FACT THAT THE NPA HAS CLAIMED RESPONSIBILITY FOR THE
KILLING OF JOHN RONQUILLO, THE HONORABLE COURT MUST
THEREFORE, REVERSED (SIC) AND SET ASIDE THE DECISION OF THE
COURT A QUO AND THAT OF THE HON. COURT OF APPEALS AND INSTEAD
ACQUIT THE HEREIN ACCUSED-PETITIONER ON GROUND OF MISTAKEN
IDENTITY AND TO REMAND THE CASE TO THE LOWER COURT FOR
FURTHER PROCEEDINGS.15 (Underscoring supplied)
Our Ruling
The
matter
of
determining
credibility
of
witnesses
is
best
left
to
the
trial
and
appellate courts. The NPA bare
claim for the killing does not bind the Court.
Petitioner scores both the RTC and the CA for accepting hook, line and sinker the
prosecution version of the incident. According to petitioner, the accounts given by
the prosecution witnesses are highly-incredible and unworthy of credence and
belief. It is also contended that the New Peoples Army (NPA) has claimed
responsibility for the killing of John Ronquillo. The armed guerrilla group allegedly
executed Ronquillo after they found him liable for murder and rape.
Verily, the thrust of this appeal is to assail the credibility of the witnesses for the
People. Upon a review of the entire records, the Court finds no cogent reason to
depart from the findings and conclusions reached by the trial court and the CA.
More specifically, this Court puts great weight on the factual findings of the trial
judge who conducted the trial of the case and heard the testimonies of the
witnesses themselves.16 In People v. Sanchez,17 the Court had occasion to
reiterate that:
The matter of assigning values to declarations on the witness stand is best and
most competently performed by the trial judge who had the unmatched
Page 39 of 158

opportunity to observe the witnesses and to assess their credibility by the various
indicia available but not reflected in the record. The demeanor of the person on
the stand can draw the line between fact and fancy. The forthright answer or the
hesitant pause, the quivering voice or the angry tone, the flustered look or the
sincere gaze, the modest blush or the guilty blanch these can reveal if the
witness is telling the truth or lying in his teeth. 18
That the New Peoples Army allegedly publicly claimed responsibility for the
killing of the victim is beside the point. It is not binding on the Court. It does not
preclude the Court from determining the real killer in accordance with the rule of
evidence and settled jurisprudence.
Former Chief Justice Hilario Davides explanation in People v. Quijada 19 is
likewise illuminating:
Settled is the rule that the factual findings of the trial court, especially on the
credibility of witnesses, are accorded great weight and respect. For, the trial court
has the advantage of observing the witnesses through the different indicators of
truthfulness or falsehood, such as the angry flush of an insisted assertion or the
sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or
the forthright tone of a ready reply; or the furtive glance, the blush of conscious
shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the
calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization
of the solemnity of an oath, the carriage and mien. 20
Compared to appellate magistrates who merely deal and contend with the cold
and inanimate pages of the transcript of stenographic notes and the original
records brought before them, the trial judge confronts the victim or his heirs, the
accused and their respective witnesses. He personally observes their conduct,
demeanor and deportment while responding to the questions propounded by
both the prosecutor and defense counsel. Moreover, it is also the trial judge who
has the opportunity to pose clarificatory questions to the parties. Tersely put,
when a trial judge makes his findings as to the issue of credibility, such findings
bear great weight, at times even finality, on the appellate court. 21
The RTC and the CA found the testimonies of the witnesses for the People to
have met and passed the tests of credibility and believability.
Elementary is the rule that when the findings of the trial court have been affirmed
by the appellate court, the said findings are generally binding upon this Court. 22
Petitioners
conviction
is
based
on
both
positive
testimony
of
an
eye-witness
and
circumstantial evidence.
Petitioner insists that both the trial court and the CA erred in convicting him of the
crime charged on circumstantial evidence. According to petitioner, the inference
upon which the conviction was premised was not proved beyond reasonable
doubt.
The argument is misleading. It bears stressing that the trial court convicted
petitioner of homicide mainly on the strength of the testimonies of prosecution
witnesses Lorna Bandiola and Nemelyn Tulio. Bandiola was an eyewitness to the
commission of the crime while Tulio provided circumstantial evidence pointing to
petitioner as the author of the gruesome killing of the victim Ronquillo.
Page 40 of 158

Circumstantial evidence is defined as that evidence that "indirectly proves a fact

in issue through an inference which the fact-finder draws from the evidence
established." Resort to it is essential when the lack of direct testimony would
result in setting a felon free.23
At the outset, We may well emphasize that direct evidence of the commission of
a crime is not the only basis on which a court draws its finding of guilt.
Established facts that form a chain of circumstances can lead the mind intuitively
or impel a conscious process of reasoning towards a conviction. 24 Verily, resort to
circumstantial evidence is sanctioned by Rule 133, Section 5 of the Revised
Rules on Evidence.25
The following are the requisites for circumstantial evidence to be sufficient to
support conviction: (a) there is more than one circumstance, (b) the facts from
which the inferences are derived have been proven, and (c) the combination of
all the circumstances results in a moral certainty that the accused, to the
exclusion of all others, is the one who has committed the crime. Thus, to justify a
conviction based on circumstantial evidence, the combination of circumstances
must be interwoven in such a way as to leave no reasonable doubt as to the guilt
of the accused.26
The trial court pointed to the following circumstantial evidence that sufficiently
identified petitioner as the author of the gruesome killing:
There were a number of proven circumstances from which an inference could be
made that Ricky Bastian was the assailant. Circumstance No. 1: The fact that
Nemelyn heard gunshots and saw gun-flashes twenty (20) meters away while
she was on her way out of the school campus approaching the main gate;
Circumstance No. 2: The fact that after she heard gunshots, a short while
thereafter, she saw Ricky Bastian holding a gun running past behind her five (5)
meters away coming from the direction where the shots came from; and
Circumstance No. 3: The fact that when she lighted with her flashlights the place
where she heard gunshots, she saw the victim lying dead on the ground.
These are a combination of unbroken chain of circumstances consistent with the
hypothesis that Ricky Bastian was the assailant and inconsistent with the
hypothesis that he was not. Otherwise stated, these unbroken chain of
circumstances taken collectively engendered moral certainty for the Court to
believe that Ricky Bastian was the assailant. Nemelyns opportunity, however, of
identifying Ricky Bastian as the assailant was put to question by the accused
through their witnesses. We will put to rest this question in the discussion that
follow, but first, let us take a look on the eyewitness account of Lorna Bandiola
because her credibility and her presence as an eyewitness are likewise being
questioned by the defense.27
Even assuming, ex gratia argumenti, that the testimony of Nemelyn Tulio can be
discarded, petitioners conviction founded on the positive declarations of
eyewitness Lorna Bandiola still stands on terra firma. The rule is well-entrenched
in this jurisdiction that in determining the value and credibility of evidence,
witnesses are to be weighed, not numbered. The testimony of only one witness, if
credible and positive, is sufficient to convict.28 People v. Ramos,29 quoting People
v. Toyco,30 is good authority with the following pronouncement:
Page 41 of 158

It is axiomatic that truth is established not by the number of witnesses but by the
quality of their testimonies. The testimony of a single witness if positive and
credible is sufficient to support a conviction even in a charge of murder.31
On the penalty and civil liability
Article 249 of the Revised Penal Code defines and penalizes homicide in the
following tenor:
Art. 249. Homicide. Any person who, not falling within the provisions of Article
246 (Parricide), shall kill another without the attendance of any of the
circumstances enumerated in the next preceding article (Murder), shall be
deemed guilty of homicide and be punished by reclusion temporal.
The penalty for homicide is reclusion temporal in any of its periods. It ranges
from twelve (12) years and one (1) day to twenty (20) years. The trial court
appreciated the aggravating circumstance of nighttime. Upon review by the CA,
the appellate court opined that while the crime was committed at around 2:00
a.m., the cover of darkness was not relevant to its commission. We sustain the
CA conclusion that nighttime does not aggravate the killing of Ronquillo. Thus,
the proper penalty or maximum term of the indeterminate sentence could be
reclusion temporal medium (fourteen [14] years, eight [8] months and one [1] day
to seventeen [17] years and four [4] months).
Under the Indeterminate Sentence Law, the minimum term must be taken from
the penalty next lower in degree, which is prision mayor, ranging from six (6)
years and one (1) day to twelve (12) years, to be imposed in any of its periods.
Of course, a better calibration is to likewise set the minimum term in the medium
period (eight [8] years and one [1] day to ten [10] years).
The CA award of burial expenses in the amount of P1,800.00 and P141,320.00
for lost earnings is duly covered by receipts and testimony of the victims spouse,
respectively. It should be maintained. The award of P50,000.00 for civil indemnity
and another P50,000.00 for moral damages is likewise in accord with latest
jurisprudence.32
In fine, both the penalty and the civil liability imposed on the petitioner by the
Court of Appeals are in order.
WHEREFORE, the appealed decision is AFFIRMED in full.
SO ORDERED.
G.R. No. 167805

November 14, 2008

ARNOLD STA. CATALINA, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
QUISUMBING, Acting C.J.:

Page 42 of 158

This petition for review on certiorari seeks to reverse and set aside the Decision 1
dated October 26, 2004 and the 2 dated April 14, 2005 of the Court of Appeals in
CA-G.R. CR No. 21877.
Petitioner was charged before the Regional Trial Court, Branch 63, Makati City,
with the crime of estafa defined under Article 315, paragraph 1(b) 3 of the Revised
Penal Code. The Information4 reads:
xxxx
That [o]n or about and sometime during the month of February 1988, in the
Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the said accused, received in trust from LORENZO B.
BALLECER the amount of P100,000.00 for the purpose of opening a letter of
credit for the intended importation of jute sacks from China with the express
obligation on the part of the accused of returning the same if the transaction does
not materialize, but the accused once in possession of the said amount far from
complying with his obligation, with unfaithfulness and abuse of confidence, did
then and there willfully, unlawfully and feloniously appropriate, apply and convert
to his own personal use and benefit the said amount and despite demands, failed
and refused and still fails and refuses to return the same to said Lorenzo B.
Ballecer, to the damage and prejudice of the latter in the aforesaid amount of
P100,000.00.
CONTRARY TO LAW.
Petitioner pleaded not guilty upon arraignment. Thereafter, a trial on the merits
ensued.
The following facts were established.
Private complainant Lorenzo B. Ballecer was the president of Sunrise Industries
Development, Incorporated while his friend, herein petitioner, was the president
of Century United Marketing and Trading Corporation.5
Sometime in February 1988, Ballecer entered into a joint business venture with
petitioner involving importation of jute sacks from China. Petitioner intimated to
Ballecer that he could secure the jute sacks from China through a company in
Hongkong which would act as his agent. Petitioner also told Ballecer that he had
a ready buyer in the Philippines named Saugus Enterprises which was willing to
buy the jute sacks at P12.25 per piece. Convinced, Ballecer ordered through
petitioner one container load of jute sacks with the total cost of P137,000.6
After the order was made, petitioner told Ballecer to open the importation's letter
of credit. Accordingly, Ballecer and petitioner proceeded to Citytrust Bank to open
Page 43 of 158

said letter of credit. However, before the letter of credit could be opened, the
bank required them to submit the supporting customs documents and to post a
marginal deposit of P100,000. Ballecer then asked petitioner to accompany him
to United Coconut Planters Bank to encash a check worth P100,000.7
After the encashment of the check, the two returned to Citytrust Bank. However,
they arrived after banking hours, so the letter of credit could no longer be
opened. Petitioner then suggested that the money be deposited in his account at
Citytrust instead. Ballecer agreed.8 By way of acknowledgment, petitioner
executed a document which reads:
xxxx
This is to certify that I have received from LORENZO B. BALLECER the amount
of ONE HUNDRED THOUSAND PESOS ONLY (P100,000.00) and deposited in
my CITYTRUST BANK Account No. 00035016566 for use in the opening of a
Letter of Credit at said bank for the importation of 20,000 pcs. of jute sacks from
Hongkong and that the same will be returned to him if transaction does not
materialize.9 (Underscoring supplied.)
While preparing the supporting customs documents for the letter of credit,
Ballecer found that the cost of the jute sacks was not $0.15 but $0.62 or P16.15
per piece.10 Realizing that his business venture was a losing proposition, Ballecer
cancelled the importation and asked petitioner to return the P100,000. Petitioner,
however, failed to return the money despite repeated verbal and formal
demands.
In defense, petitioner testified that he did not misappropriate the P100,000.
Petitioner claimed that the said money was spent and used for the office
expenses, salaries and miscellaneous expenses of the office which Ballecer and
petitioner occupy and share together. He further testified that when the check
was given to Ballecer, they encashed it and entered into an oral agreement that
whatever profit they will realize from their joint business venture shall be shared
equally after deducting all expenses.11
On March 11, 1997, the trial court convicted the petitioner of the crime charged.
The decretal portion of the Decision12 reads:
Finding all the elements necessary to qualify an act as estafa to be present, the
court finds the accused ARNOLD STA. CATALINA, "GUILTY" beyond reasonable
doubt. A judgment of conviction is rendered against him and he is to suffer the
penalty of from 2 years 11 months and 11 days of prision correc[c]ional in its
minimum and mediu[m] period, to 8 years of prision mayor and 1 year for each
additional P10,000.00 in excess of P22,000.00 as provided for under Art. 315
par. 1. Likewise, accused is ordered to pay civil indemnity in the amount of
Page 44 of 158

P100,000.00 representing the amount he received from private complainant and

which he deposited in his own account.
SO ORDERED.13
Aggrieved, petitioner appealed. He filed a motion praying that the testimony
covered by the transcript of stenographic notes dated February 5, 1991 be
retaken. The motion was granted by the Court of Appeals in a Resolution 14 dated
July 14, 1999. However, on April 10, 2000, the public prosecutor filed a
Manifestation15 stating that Ballecer was no longer interested in pursuing his
complaint against petitioner and that the case should be decided in light of
Ballecer's Affidavit of Desistance.16
On October 26, 2004, the Court of Appeals rendered a Decision affirming the
judgment of conviction by the trial court. The appellate court held:
WHEREFORE, PREMISES CONSIDERED, the Decision, dated March 11, 1997,
is hereby AFFIRMED and the sentence imposed by the Court a quo on the
accused is clarified, thus: for the accused to suffer the indeterminate penalty of 2
years, 11 months and 11 days of prision correccional as minimum to 15 years of
reclusion temporal as maximum. The judgment of the Court a quo ordering
accused-appellant to pay private complainant the sum of P100,000.00
representing the amount misappropriated is likewise AFFIRMED.
SO ORDERED.17
Petitioner filed a motion for reconsideration. 18 The same was denied in a
Resolution dated April 14, 2005. Dissatisfied with the aforementioned rulings of
the Court of Appeals, the petitioner now comes before us, raising the following
issues:
I.
WHETHER OR NOT THE RESPONDENT COURT OF APPEALS HAS
DECIDED THE CASE (CA-G.R. CR NO. 21877) IN A WAY PROBABLY NOT IN
ACCORDANCE WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE
SUPREME COURT;
II.
WHETHER THE RESPONDENT COURT OF APPEALS HAS SO FAR
DEPARTED FROM THE ACCEPTED AND [USUAL] COURSE OF JUDICIAL
PROCEEDINGS, OR SO FAR SANCTIONED SUCH DEPARTURE BY A
LOWER COURT, AS TO CALL FOR AN EXERCISE OF THE POWER OF
SUPERVISION;
Page 45 of 158

III.
WHETHER OR NOT THIS HONORABLE TRIBUNAL, IN THE EXERCISE OF
ITS POWER OF REVIEW, MAY REVERSE THE DECISION OF THE
RESPONDENT COURT, ESPECIALLY IN CASES WHERE THERE IS MORE
THAN A CLEAR GROUND OF REASONABLE DOUBT.19
In the main, the issue is: Did the Court of Appeals err in convicting the petitioner
for the crime of estafa despite the missing transcript of stenographic notes dated
February 5, 1991?
In his petition, the petitioner contends that he should have been acquitted of the
crime charged. He avers that when the trial court rendered its decision, the
transcript of stenographic notes taken on February 5, 1991 was missing. Hence,
the appellate court erred in not ordering the trial court to render a new decision
based on the complete evidence submitted by the parties, including the
testimony on the missing stenographic notes. Petitioner asserts that the facts as
found by the trial court and adopted by the appellate court are not complete.
Thus, the same should not be used as basis for convicting him of the crime
charged.20
For its part, the Office of the Solicitor General (OSG) counters that nothing on the
record states that the questioned transcript was already missing when the trial
court rendered its decision. In fact, the matter of the transcript being lost or
missing surfaced only when the case was already in the appellate stage. Also,
there is no proof that Ballecer's testimony was not considered at all when the trial
court rendered its decision. The OSG submits that contrary to petitioner's claim,
the decision of the trial court made reference to the testimony of Ballecer.
Conversely, even if the February 5, 1991 transcript was missing when the trial
court decided the case, other evidence were presented, which as properly
appreciated, led the trial court to correctly conclude that the petitioner committed
the crime of estafa.21
We have carefully examined the records of the case and find no cogent reason to
disturb the findings of the appellate court.
First, all the elements of estafa under Article 315, par. 1(b) of the Revised Penal
Code are present. The elements of estafa under said provision are: (a) that
money, goods or other personal property is received by the offender in trust, or
on commission, or for administration, or under any other obligation involving the
duty to make delivery of, or to return the same; (b) that there be misappropriation
or conversion of such money or property by the offender; or denial on his part of
such receipt; (c) that such misappropriation or conversion or denial is to the
prejudice of another.22
Page 46 of 158

Here, the petitioner received in trust from Ballecer the amount of P100,000 for
the purpose of opening a letter of credit for the importation of jute sacks with the
concurrent obligation to return the same amount in the event that the transaction
failed to materialize. Petitioner, however, misappropriated and applied to his own
use the said amount and even admitted issuing checks to be drawn from the
P100,000 for a purpose other than opening a letter of credit. Petitioner was then
asked to return the P100,000. Despite repeated verbal and formal demands,
petitioner failed and refused to return said amount to the prejudice of Ballecer.
Clearly, all the elements of the crime of estafa were proven in the instant case.23
Second, the appellate court did not err in convicting petitioner despite the fact
that the February 5, 1991 transcript was missing. As correctly pointed out by the
OSG, nothing on record categorically indicates that the transcript was already
missing when the trial court rendered its decision. The mere fact that the trial
court did not mention the February 5, 1991 testimony does not mean that it was
not considered at all. Courts are not required to state in its decision all the facts
found in the records. It is enough that the court states the facts and the law on
which its decision is based.24 The mere fact that no mention was made in the trial
court's decision of the testimony of a witness does not necessarily mean said
testimony was overlooked by the trial court in arriving at its decision. If it did not
make reference of said testimony, it is because it was insignificant. 25
Even assuming that the transcript of February 5, 1991 was missing at the time
the trial court decided the case, there were other evidence presented which led it
to correctly conclude that indeed petitioner committed estafa. In fact, the missing
transcript of February 5, 1991 contained only a portion of the testimony of
Ballecer. Other transcripts, which extensively covered Ballecer's testimonies,
provided sufficient basis for the trial court to convict petitioner.
Finally, the Affidavit of Desistance26 submitted by Ballecer will not justify the
dismissal of the action. By itself, an Affidavit of Desistance is not a ground for the
dismissal of an action, once the action has been instituted in court. 27 Here,
Ballecer made the so-called pardon of the petitioner after the institution of the
action. He made the Affidavit of Desistance only on October 25, 1999 - more than
two years after the trial court had rendered its decision. The Court attaches no
persuasive value to a desistance especially when executed as an afterthought. It
would be a dangerous rule to reject the testimony taken before the court of
justice simply because the witness who had given it later on changed his mind for
one reason or another. Such a rule will make a solemn trial a mockery and place
the investigation at the mercy of unscrupulous witnesses. 28 Moreover, if we allow
the dismissal of the case in view of Ballecer's Affidavit of Desistance, there is
always the probability that it would later on be repudiated, and criminal
prosecution would thus be interminable.29
Page 47 of 158

WHEREFORE, the petition is hereby DENIED. The Decision dated October 26,
2004 and the Resolution dated April 14, 2005 of the Court of Appeals in CA-G.R.
CR No. 21877 are AFFIRMED.
SO ORDERED.
G.R. No. 140656

September 13, 2007

MAYOR FELIPE K. CONSTANTINO, petitioner,

vs.
HON. SANDIGANBAYAN (FIRST DIVISION) and THE PEOPLE OF THE
PHILIPPINES, respondents.
x-----------------------------------------------------------------------------x
G.R. No. 154482

September 13, 2007

NORBERTO
N.
LINDONG,
petitioner,
vs.
PEOPLE OF THE PHILIPPINES and SANDIGANBAYAN, respondents.
DECISION
TINGA, J.:
Before us are two (2) consolidated petitions, the determination of both rests
ultimately on whether Felipe K. Constantino (Constantino), mayor of Malungon,
Sarangani Province, was indeed guilty beyond reasonable doubt of violating
Section 3(e) of Republic Act No. 3019 (R.A. No. 3019), otherwise known as The
Anti-Graft and Corrupt Practices Act.
In G.R. No. 140656, Constantino filed a petition for review on certiorari under
Rule 45 of the 1997 Rules of Civil Procedure, assailing the 15 November 1999
decision1 and the 15 March 2000 resolution 2 of the Sandiganbayan (First
Division) in Criminal Case No. 23433 finding him and his co-accused, petitioner
Norberto N. Lindong (Lindong) guilty beyond reasonable doubt of violating
Section 3(e) of R.A. No. 3019.
On the other hand, G.R. No. 154482 is a petition for certiorari with prayer for
preliminary injunction under Rule 65 of the 1997 Rules of Civil Procedure, filed by
Lindong questioning three (3) orders3 of the Sandiganbayan (First Division)
relative to the execution of judgment against him also in Criminal Case No.
23433.
The Antecedents
Page 48 of 158

In an Information dated 31 July 1996, Constantino, in his capacity as mayor of

Malungon, Sarangani Province, together with his co-accused Lindong, was
charged with violation of Section 3 (e) of R.A. No. 3019 before the
Sandiganbayan, to wit:
That on or about February 28, 1996, in Davao City, Philippines, and within the
jurisdiction of this Honorable Court, accused Felipe K. Constantino, a public
officer, being then the Mayor of the Municipality of Malungon, Sarangani
Province, committing the crime herein-charged in relation to, while in the
performance and taking advantage of his official functions, with evident bad faith,
manifest partiality or through gross inexcusable negligence, and conspiring and
confederating with accused Norberto N. Lindong, President and Chairman of
the Board of the Norlovanian Corporation, Davao City, did then and there
wil[l]fully, unlawfully and criminally enter into a Lease Agreement for the rental of
various heavy equipments (sic) for a period of six (6) years for and in
consideration of the sum of PESOS: TWO HUNDRED FIFTY-SEVEN
THOUSAND ONE HUNDRED ELEVEN and 11/100 (P257,111.11) per month or a
total consideration of PESOS: EIGHTEEN MILLION FIVE HUNDRED ELEVEN
THOUSAND NINE HUNDRED NINETY-NINE and 92/100 (P18,511,999.92) and
a guaranty deposit of PESOS: ONE MILLION SEVEN HUNDRED EIGHTY
THOUSAND (P1,780,000.00) contrary to the express mandate of Resolution No.
2, series of 1995, of the Municipal Planning and Development Council
implementing Sangguniang Bayan Resolution No. 198, series of 1995 and
Sangguniang Bayan Resolution No. 21 dated February 22, 1996 authorizing the
Municipal Mayor of Malungon to enter into an agreement for the purchase of
heavy equipments (sic) on a five-year term basis for and in consideration of the
amount of PESOS: TWO MILLION TWO HUNDRED THOUSAND
(P2,200,000.00) per year or a total consideration of only PESOS: ELEVEN
MILLION (P11,000,000.00), thus, giving said Norlovanian Corporation, which
was fully paid for the Guaranty Deposit and was actually paid heavy equipment
rentals for the period March 5 to May 6,
1996 in the aggregate sum of PESOS: TWO MILLION ONE HUNDRED
SEVENTY-SEVEN THOUSAND NINETY and 91/100 (P2,177,090.91),
unwarranted benefits and advantage and causing undue injury to the
government.
CONTRARY TO LAW.4
Both accused pleaded not guilty to the charge. In the ensuing trial, the
prosecution presented Nazario B. Tomanan (Tomanan), Commission on Audit
(COA) Auditor III of the COA Regional Office No. XI. In rebuttal, it presented
Benjamin C. Asgapo (Asgapo), councilor of Malungon, Sarangani Province and
Page 49 of 158

one of the complainants below. The prosecution sought to establish the facts as
follows:
The Municipality of Malungon listed as one of its priority programs, the
acquisition of a fleet of heavy equipment needed by the municipality in its
development projects.5 For this purpose, it appropriated an amount of P2.2
Million per annum for a period of five (5) years beginning in 1996 for the
amortization of such purchase.6 Pursuant thereto, the municipality conducted two
(2) public biddings for suppliers of the required fleet of heavy equipment. Both
attempts, however, failed. Hence, the Sangguniang Bayan instead passed
Resolution No. 21 on 22 February 1996, authorizing petitioner Constantino to
enter into a negotiated contract for the lease/purchase of the needed fleet of
heavy equipment.7
On 28 February 1996, Constantino entered into a Lease Agreement8 with
Norlovanian Corporation, represented by Lindong. The agreement required,
among others, the municipality to provide Norlovanian Corporation with a
guaranty deposit. The following day, Lindong appeared before the Sangguniang
Bayan to discuss the Lease Agreement. Not one of the members of the
Sanggunian questioned the legality of the agreement.9
The seven (7) units of heavy equipment subject of the agreement were thus
delivered to the municipality on 4 March 1996.10 On 6 March 1996, the
Municipality of Malungon paid Norlovanian Corporation a total amount of
P2,177,090.91 representing the guaranty deposit as well as the rental for the
period of 5 March 1996 to 5 April 1996 and partial rental for the period of 5 April
1996 to 6 May 1996.11
Thereafter, on 18 April 1996, the Sangguniang Bayan unanimously passed
Resolution No. 3812 requesting petitioner to operate the newly acquired fleet of
heavy equipment. The municipality subsequently utilized the fleet. 13
However, only five (5) days later, or on 23 April 1996, Sanggunian members
Benjamin C. Asgapo, Rafael J. Suson, Sr. (Suson), Leo G. Ingay (Ingay), Pablo
V. Octavio (Octavio) and Wilfredo P. Espinosa (Espinosa), and Vice Mayor
Primitiva L. Espinosa (Vice Mayor Espinosa) filed a formal complaint against
petitioners Constantino and Lindong for violation of R.A. No. 3019.
On 6 June 1996, the Sangguniang Bayan passed Resolution No. 47, urging the
municipality to "stop all forms of unauthorized payment/expenditure relative to the
illegally acquired pool of heavy equipment by the Municipality of Malungon." 14
In particular, Tomanan testified that he was directed by the COA Regional Office
XI to conduct a special and comprehensive audit of the municipality of Malungon
for the period of 1 May 1995 to 31 May 1996 15 in view of a complaint filed by
Page 50 of 158

certain officials therein. In January 1997, Tomanan submitted his report detailing
the following adverse findings relative to the purchase of the subject fleet of
heavy equipment: (a) the lease/purchase contract was disadvantageous to the
municipal government because of the rigid terms and conditions therein required
of the municipality before the latter could acquire ownership over the pool of
heavy equipment; (b) Norlovanian Corporation had no proof of ownership of the
fleet of equipment as the audit revealed that title to the equipment was in the
name of Lindong; (c) the lease/purchase procedure violated Sections 27 and 28
of the Rules and Regulations on Supply and Property Management in Local
Governments;16 and (d) the lease/purchase procedure utilized by the municipality
was uneconomical and resulted to a wastage of P9,658,000.00 of government
funds.17
Asgapo, on the other hand, testified that he was present during the 29 February
1996 meeting where Lindong appeared before the Sanggunian. The witness
asserted that the lease contract was never concurred in by the municipal council
as required by Resolution No. 21. He admitted, however, that neither was there
any resolution passed opposing, objecting to or rejecting the lease contract.
Moreover, Asgapo alleged that at the time he first obtained a copy of the lease
contract from the municipal treasurer on 6 March 1996, he did not see the
Undertaking dated 28 February 199618 attached or annexed thereto. He was only
able to get a copy of the latter document about three (3) or four (4) days
thereafter, following an inquiry with the provincial auditor.19
The defense presented Lindong as its sole witness. According to Lindong, after
negotiations between himself and petitioner Constantino, together with some
members of the Sanggunian, the parties agreed to a lease/purchase scheme in
accordance with the mandate of Resolution No. 21. They agreed that since the
municipality did not have sufficient funds to buy the fleet of heavy equipment
outright at P8.9 Million, the latter would purchase the subject equipment on
installment basis but with allowance for Norlovanian Corporation to recover some
incremental cost. Thus, on the very same day, 28 February 1996, Lindong as
representative of Norlovanian Corporation and Constantino as representative of
the municipality entered into the lease/purchase agreement. They
contemporaneously executed the Lease Agreement and Undertaking in the
presence of the members of the Sanggunian who accompanied the mayor.20
Lindong further testified that he attended the municipal council meeting on 29
February 1996 to provide the members thereof with a copy of the lease contract
and to explain the transaction. Moreover, he explained that notwithstanding the
fact that the main agreement was captioned only as a "Lease Agreement," the
same being a standard pre-printed form of his corporation, the intent of the
parties was to enter into a lease/purchase agreement. Hence, he clarified that
Page 51 of 158

the Undertaking he executed bound him to convey ownership over the fleet of
heavy equipment to the municipality upon the full payment thereof. 21
Finally, Lindong averred that more than two (2) months after he delivered the
fleet of equipment to the municipality, he received a Certificate of Concurrence
dated 9 May 1996 issued by Nemesio Liray, Chairman of the Committee of
Finance of the Sangguniang Bayan, certifying that the Lease Agreement was
concurred in by the members of the Committee on 29 February 1996. Likewise,
he received a Certification dated 17 May 1996 from the Pre-Qualification, Bids
and Awards Committee of the Municipality of Malungon, that the members
thereof approved, concurred in and signed the contract of lease between the
municipality and Norlovanian Corporation.22
Finding that the prosecution had proven beyond reasonable doubt the guilt of
Constantino and Lindong of the offense as charged, the Sandiganbayan
rendered the assailed decision sentencing them both, thus:
WHEREFORE, judgment is hereby rendered finding accused FELIPE K.
CONSTANTINO and NORBERTO N. LINDONG GUILTY beyond reasonable
doubt of the crime of violation of Section 3 (e) of R.A. No. 3019, otherwise known
as "The Anti-Graft and Corrupt Practices Act," and said accused are hereby
sentenced, as follows:
(a) to suffer an indeterminate sentence of imprisonment for a period of six (6)
years and one (1) month as minimum to twelve (12) years and one (1) month as
maximum;
(b) to suffer perpetual disqualification from public office;
(c) to jointly and severally indemnify the Municipality of Malungon, Province of
Sarangani the sum of Two Million One Hundred Seventy-Seven Thousand [sic]
and 91/1000 [sic] Pesos (P2,177,090.91), representing the amount actually paid
to Norlovanian Corporation, with interest at the legal rate computed from March
6, 1996 until fully paid; and
(d) to pay the costs of suit.
SO ORDERED.23
The Sandiganbayan held that neither manifest partiality nor evident bad faith
attended the commission of the offense. However, it found that petitioner
Constantino caused undue injury to the Municipality of Malungon through his
gross inexcusable negligence in executing only a lease agreement over the fleet
of heavy equipment. Anent Lindong, the graft court upheld his culpability as coconspirator of Constantino despite its finding that the latter violated the anti-graft
Page 52 of 158

law through negligence only. The Sandiganbayan ratiocinated that since the law
violated is a special law, proof that he intended to commit the particular offense
was not essential, as it otherwise would have been for a felony punishable by the
Revised Penal Code. The Sandiganbayan ruled that it was sufficient for the
prosecution to have proven, as it did, that Lindong allowed or failed to prevent
Constantino from entering into an agreement which was clearly contrary to law.
Thus, even if petitioner was found guilty of causing undue injury to the
municipality through gross inexcusable negligence, the anti-graft court concluded
that his co-conspirator could likewise be held liable.24
It appears that during trial, both accused were represented by the same counsel.
However, after judgment was rendered against them, Constantino and Lindong
filed separate appeals to the Supreme Court which have taken disparate routes.
On 25 April 2006, during the pendency of his present appeal, Constantino
passed away.25
Lindong himself likewise filed a petition for review on certiorari, docketed as G.R.
No. 142379, to seek a reversal of the Sandiganbayan decision finding him guilty
as Constantinos co-conspirator. On 10 July 2000, this Court denied Lindongs
petition for failure to state the material date of receipt of the assailed decision of
the Sandiganbayan. His subsequent attempts for reconsideration proved futile.
On 25 July 2001, the Court issued the Entry of Judgment in the case.
Thereafter, the Sandiganbayan (First Division) issued three (3) orders relative to
the execution of judgment against Lindong, all of which are assailed by the latter,
in his petition for certiorari in G.R. No. 154482, for having been issued with grave
abuse of discretion. The Sandiganbayan issued on 16 May 2002 the first
challenged order which directed petitioner Lindong to appear before it in person
for the execution of judgment. On 6 June 2002, the respondent court issued a
resolution, the second assailed order herein, denying Lindongs urgent motion to
defer execution of judgment. The third assailed order, a resolution issued on 3
July 2002, directed the issuance of a bench warrant against petitioner Lindong
and the confiscation of his cash bond for provisional liberty pending appeal, and
required him to surrender his person to the court and explain why judgment
should not be rendered against the cash bond.
With the demise of Constantino during the pendency of his appeal, the same
should normally be regarded as moot and academic following the norm that the
death of the accused marks the extinction of his criminal liability. 26 However, the
present two petitions are so intertwined that the absolution of Constantino is
ultimately determinative of the absolution of Lindong. Indeed, the exoneration of
Constantino will necessarily signify the injustice of carrying out the penalty
imposed on Lindong. Thus, the Court in this instance has to ascertain the merits
Page 53 of 158

of Constantinos appeal to prevent a developing miscarriage of justice against

Lindong.
The "moot and academic" principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide cases,
otherwise moot and academic, if: First, there is a grave violation of the
Constitution;27 Second, the exceptional character of the situation and the
paramount public interest is involved;28 Third, when constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and the
public;29 and Fourth, the case is capable of repetition yet evading review.30 In the
instant case, the exceptional character of the appeals of Constantino and
Lindong in relation to each other, as well as the higher interest of justice, requires
that the Court determine the merits of the petition and not dismiss the same
outright on the ground of mootness.
The Ruling of the Court
G.R. No. 140656
Petitioner Constantino impugned his conviction and asserted that the
Sandiganbayan erred in convicting him based on its finding that he violated
Resolution No. 21 by entering into a "Lease Agreement" with the Norlovanian
Corporation and for his failure to sign the accompanying "Undertaking." Likewise,
he argued that the evidence adduced by the prosecution was insufficient to
overcome the constitutional presumption of innocence in his favor. Finally,
Constantino contended that it was error for the Sandiganbayan to disregard the
findings of the Supreme Court en banc in the earlier case of Constantino v. Hon.
Ombudsman Desierto.31
Constantinos petition would have been granted and he would have been
absolved of criminal liability had he been still alive today. This is why it is so.
Section 3(e) of R.A. No. 3019 provides:
SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of
public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby declared to be unlawful:
xxxx
(e) Causing any undue injury to any party, including the Government, or giving
any private party any unwarranted benefits, advantage, or preference in the
discharge of his official, administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence. This provision shall
Page 54 of 158

apply to officers and employees of offices or government corporations charged

with the grant of licenses or permits or other concessions.
In order to be liable for violating the law, the following elements must concur: (1)
the accused is a public officer or a private person charged in conspiracy with the
former; (2) he or she causes undue injury to any party, whether the government
or a private party; (3) the said public officer commits the prohibited acts during
the performance of his or her official duties or in relation to his or her public
positions; (4) such undue injury is caused by giving unwarranted benefits,
advantage or preference to such parties; and (5) the public officer has acted with
manifest partiality, evident bad faith or gross inexcusable negligence. 32
There are two (2) modes of committing the offense, thus: (1) the public officer
caused any undue injury to any party, including the government; or (2) the public
officer gave any private party unwarranted benefits, advantage or preference in
the discharge of his functions. 33 An accused may be charged under either mode 34
or under both should both modes concur.35
Additionally, Section 3(e) poses the standard of manifest partiality, evident bad
faith or gross inexcusable negligence before liability can be had under the
provision. Manifest partiality is characterized by a clear, notorious or plain
inclination or predilection to favor one side rather than the other.36 Evident bad
faith connotes a manifest deliberate intent on the part of the accused to do wrong
or cause damage.37 Gross inexcusable negligence is defined as negligence
characterized by the want of even slight care, acting or omitting to act in a
situation where there is a duty to act, not inadvertently but willfully and
intentionally with a conscious indifference to consequences insofar as other
persons may be affected.38 Mere bad faith or partiality and negligence per se are
not enough for one to be held liable under the law since the act of bad faith or
partiality must in the first place be evident or manifest, respectively, while the
negligent deed should both be gross and inexcusable.39
As discussed previously, the Sandiganbayan held that manifest partiality could
not be rightfully imputed to Constantino.40 The prosecution did not present proof
that he was actuated with malice or fraud sufficient to meet the requirement of
proof beyond reasonable doubt.41 However, the respondent court found that
Constantinos act of entering into a purportedly pure lease agreement instead of
a lease/purchase agreement was a flagrant violation of Resolution No. 21. In
view of the rigid terms of the subject contract to which Constantino assented,
coupled by his failure to secure the concurrence of the Sangguniang Bayan
before entering into the agreement, the Sandiganbayan found that his conduct
constituted gross inexcusable negligence.42 Likewise, the anti-graft court ruled
that Constantinos acts resulted in undue injury to the Municipality of Malungon. 43
Notably, in the course of trial, the prosecution admitted that it had no proof that
Page 55 of 158

unwarranted benefits
Corporation.44

and

advantage

had

been

given

to

Norlovanian

Undoubtedly, the standard of culpability imposed by Section 3 of R.A. No. 3019 is

quite high which, in this case, was not hurdled by the evidence presented against
Constantino. Verily, the prosecution failed to satisfy the requisite proof to
demonstrate Constantinos guilt beyond reasonable doubt. While Constantino
should have exercised more prudence when he transacted with Norlovanian
Corporation, he could not however be held liable for "gross inexcusable
negligence" as contemplated in R.A. No. 3019. Indeed, in the earlier case of
Constantino v. Desierto,45 the Court had already made an express finding that
petitioner Constantino did not violate the mandate of Resolution No. 21 but
instead merely carried out its directive.
That case was a special civil action for certiorari filed by Constantino to seek the
invalidation of the resolution of the Ombudsman finding him guilty of grave
misconduct prejudicial to the best interest of the service and/or gross neglect of
duty, and on that account, dismissing him from service. The controversy arose
from the same transaction entered into between Constantino and Norlovanian
Corporation and involved the same subject matter as in the case at bar. The
administrative complaint was initiated through a letter-complaint and joint affidavit
signed by Vice Mayor Espinosa and to it was appended a certification signed by
the Vice Mayor and Councilors Suson, Ingay, Asgapo, Espinosa and Octavio.
In exonerating Constantino from the administrative charges, the Court found that
the evidence against him was inadequate to warrant his dismissal from service
on the grounds of grave misconduct, conduct prejudicial to the best interest of
the service and gross neglect of duty. More particularly, we made the following
pronouncements:
The explicit terms of Resolution No. 21, Series of 1996 clearly authorized Mayor
Constantino to "lease/purchase one (1) fleet of heavy equipment" composed of
seven (7) generally described units, through a "negotiated contract." That
resolution, as observed at the outset, contained no parameters as of rate of
rental, period of lease, purchase price. Pursuant thereto, Mayor Constantino,
representing the Municipality of Malungon, and Norberto Lindong, representing
the Norlovanian Corporation, executed two written instruments of the same date
and occasion, viz.:
One an agreement(on a standard printed form) dated Febr[ua]ry 28, 1996 for
the lease by the corporation to the municipality of heavy equipment of the
number and description required by Resolution no. 21, and

Page 56 of 158

Two an undertaking for the subsequent conveyance and transfer of ownership

of the equipment to the municipality at the end of the term of the lease.
That the Members of the Sangguniang Bayan knew of this "lease/purchase" is
evident from Resolution No. 38, Series of 1996 unanimously enacted by them
shortly after delivery of the equipment. In that resolution they (1) declared that
"the Municipal Government ** has just acquired its fleet of heavy equipment
leased/purchased from the Norlovanian Corporation," and (2) requested Mayor
Constantino "to operate the newly acquired heavy equipment ** leased/purchase
from the Norlovanian Corporation." The Resolution is consistent with the
allegations of Mayor Constantino which in any event are not denied by the
Councilors or Vice-Mayor Espinosa that:
1) the equipment was delivered to the Municipality by Norlovanian Corporation
on February 28, 1996 and duly inspected by Councilors Guilley, Ruez, Nallos
and Liray, as well as the Municipal Engineer and the Municipal Treasurer;
2) prior to the delivery of the units, the Vice Mayor and other Members of the
Sanguniang Bayan had opportunity to read the "Lease Agreement" as well as the
"Undertaking" but then raised no objections thereto;
3) neither did they raise any objections (a) at the session of the Municipal Council
on February 29, 1996, when Norberto Lindong explained the terms of the
"negotiated contract" of "lease/purchase," or (b) at the time that the units were
delivered and inspected by designated minicipal officials.
Now, it is germane to advert to the deplorable inaccuracies in the Joint Affidavit of
private respondents (P.L. Espinosa, Suson, Sr., Ingay, W. P. Espinosa, Octavio,
Asgapo) submitted as part of their complaint in the Ombudsmans Office. The
affidavit contains a clearly distorted version of Resolution No. 21 of February 22,
1996. In that document of the affiants described Resolution No. 21 as authorizing
Mayor Constantino "to purchase and acquire ** heavy equipments (sic) to be
paid within five (5) years at the yearly amortization of P2.2 million **." This is a
misleading reading of Resolution No. 21. As the most cursory perusal of that
resolution at once discloses, what the Mayor was thereby empowered to do was
"to enter into a negotiated contract" in the Municipalitys behalf with "interested
parties," in line with the expressed wish of the Municipality to "lease/purchase
one (1) fleet of heavy equipment **" not simply to "purchase and acquire" said
equipment (as complainant Councilors aver). Neither does Resolution No. 21
state (contrary to complainants description of it) that the price shall be "paid
within five (5) years at the yearly amortization of P2.2 million **;" indeed, as
already above stressed, the resolution is completely silent as regards any terms
and conditions of the "negotiated contract" that the Mayor was assigned to
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execute in the towns behalf. Such obvious distortions cannot but erode the
complainant councilors credibility and bona fides.
It is also relevant to draw attention to the flagrantly inaccurate statements and
inferences about the Mayors "negotiated contract" regarding the heavy
equipment, contained in Resolution No. 47 approved only by four (4) Members of
the Municipal Council at its session of June 6, 1996 (the four (4) being Councilors
Octavio, Espinosa, Asgapo and Ingay). That Resolution No. 47, it will be recalled,
stopped all "rental payment/expenditures relative to the pool of heavy equipment
of the Norlovanian Company." The stoppage was based on prior resolutions of
the Council allegedly setting down the terms under which the heavy
equipment should be acquired, and which terms were supposedly violated by the
Mayor. but unaccountably and again indicative of bad faith, if not malice, on
the part of private respondents Resolution No. 47 made absolutely no
reference to two (2) resolution which on their face justify the Mayors contract
with Norlovanian Corporation, to wit: (1) Resolution No. 21 which, having been
enacted after the cited resolutions, must be deemed to have superseded them,
and which, to repeat, motivated and constitutes the justification for the leasepurchase agreement entered into by the Mayor and Norlovanian Corporation,
and (2) Resolution No. 38 in which the Councilors not only expressly
aknowledged that "the municipal government ** (had) just acquired its fleet of
heavy equipment leased/purchased from the Norlovanian Corporation," but also
"requested ** (the) Mayor ** to operate the newly acquired heavy equipment of
the municipality leased/purchased from the Norlovanian Corporation."
In light of the forego[i]ng facts, which appear to the Court to be quite
apparent on the record, it is difficult to perceive how the Office of the
Ombudsman could have arrived at a conclusion of any wrongdoing by the
Mayor in relation to the transaction in question. It is difficult to see how the
transaction between the Mayor and Norlovanian Corporation entered
into pursuant to Resolution No. 21 and tacitly accepted and approved by
the town Council through its Resolution No. 38 could be deemed an
infringement of the same Resolution No. 21. In truth, an examination of the
pertinent writings (the resolution, the two (2) instruments constituting the
negotiated contract, and the certificate of delivery) unavoidably confirms
their integrity and congruity. It is in fine, difficult to see how those pertinent
written instrument, could establish a prima facie case to warrant the
preventive suspension of Mayor Constantino. A person with the most
elementary grasp of the English language would, from merely scanning
those material documents, at once realize that the Mayor had done nothing
but carry out the expressed wishes of the Sangguniang Bayan.
xxxx
Page 58 of 158

The investigator also opined that Resolution No. 21 should be interpreted in light
of other official documents, executed a year earlier. He [Graft Prosecutor Buena]
does not explain why he did not adopt the more obvious construction of
Resolution No. 21 indicated by the elementary doctrine that it is within the power
and prerogative of the town council to repeal its prior acts, either expressly, or by
the passage of essentially inconsistent resolutions. When the town council
passed Resolution No. 21 without any mention whatever of those prior
official documents respecting the acquisition to heavy equipment, the
evident intention was to supersede them and to have such acquisition
governed solely by Resolution No. 21. This conclusion is strongly
supported by the fact that the Sanggunian expressly admitted in the
Second Whereas Clause of its Resolution No. 21 that there had been a
"failure of bidders to submit bids despite of two biddings ... public
announcement" [sic] the two biddings being obviously related to said
earlier official acts of the town council. The conclusion is further bolstered
by the fact that the Council (with full awareness of said "negotiated
contract,") and of the delivery of equipment thereunder, had requested the
Mayor to put the equipment into operation for the town projects. The Court
is thus satisfied that it was in fact the Councils intention, which it
expressed in clear language, to confer on the Mayor ample discretion to
execute a "negotiated contract" with any interested party, without regard to
any official acts of the Council prior to Resolution No. 21.
It is also difficult to see why the patent inaccuracies in the affidavit-complaint and
Resolution No. 47 were ignored as difficult to understand how the execution of
two writings to embody one contract of "lease/purchase" could be regarded as
fatally defective, and even indicative of a criminal conspiracy, or why said two
writings should be interpreted in such a way as to magnify their seeming
inconsistencies. The fundamental and familiar legal principle which the
Office of the Ombudsman ignored is that it is perfectly legitimate for a
bilateral contract to be embodied in two or more separate writings, and that
in such an event the writings should be read and interpreted together in
such a way as to eliminate seeming inconsistencies and render the parties
intention effectual.
The statement in the appealed Resolution as to the absence of prior consent
of the Council to the "negotiated contract" executed by Mayor Constantino and
Norlovanian Corporation flies in the teeth of the evidence; there is unrebutted
proof that the heavy equipment delivered to the Municipality pursuant to the
contract, was inspected by designated councilors and municipal officers; that
shortly thereafter, the negotiated contract composed of two documents was
explained and discussed at the session of the town Council of February 29,
Page 59 of 158

1996; and that afterwards the Council requested Mayor Constantino to put the
equipment into operation. (Emphasis supplied)46
Although the instant case involves a criminal charge whereas Constantino
involved an administrative charge, still the findings in the latter case are binding
herein because the same set of facts are the subject of both cases. What is
decisive is that the issues already litigated in a final and executory judgment
preclude by the principle of bar by prior judgment, an aspect of the doctrine of
res judicata, and even under the doctrine of "law of the case," the re-litigation
of the same issue in another action. 47 It is well established that when a right or
fact has been judicially tried and determined by a court of competent jurisdiction,
so long as it remains unreversed, it should be conclusive upon the parties and
those in privity with them.48 The dictum therein laid down became the law of the
case and what was once irrevocably established as the controlling legal rule or
decision continues to be binding between the same parties as long as the facts
on which the decision was predicated continue to be the facts of the case before
the court. Hence, the binding effect and enforceability of that dictum can no
longer be resurrected anew since such issue had already been resolved and
finally laid to rest, if not by the principle of res judicata, at least by conclusiveness
of judgment.49
It may be true that the basis of administrative liability differs from criminal liability
as the purpose of administrative proceedings on the one hand is mainly to
protect the public service, based on the time-honored principle that a public office
is a public trust. On the other hand, the purpose of the criminal prosecution is the
punishment of crime.50 However, the dismissal by the Court of the administrative
case against Constantino based on the same subject matter and after examining
the same crucial evidence operates to dismiss the criminal case because of the
precise finding that the act from which liability is anchored does not exist.
It is likewise clear from the decision of the Court in Constantino that the level of
proof required in administrative cases which is substantial evidence was not
mustered therein. The same evidence is again before the Court in connection
with the appeal in the criminal case. Ineluctably, the same evidence cannot with
greater reason satisfy the higher standard in criminal cases such as the present
case which is evidence beyond reasonable doubt.
The elementary principle is that it is perfectly legitimate for a bilateral contract to
be embodied in two or more separate writings, and that in such an event the
writings should be read and interpreted together in such a way as to eliminate
seeming inconsistencies and render the intention of the parties effectual. 51 In
construing a written contract, the reason behind and the circumstances
surrounding its execution are of paramount importance to place the interpreter in
the situation occupied by the parties concerned at the time the writing was
Page 60 of 158

executed.52 Construction of the terms of a contract, which would amount to

impairment or loss of right, is not favored. Conservation and preservation, not
waiver, abandonment or forfeiture of a right, is the rule. 53 In case of doubts in
contracts, the same should be settled in favor of the greatest reciprocity of
interests.54
G.R. No. 154482
Lindong ascribes grave abuse of discretion on the part of respondent court in
issuing the challenged orders. He argues that the Sandiganbayan erred in not
holding in abeyance the execution of judgment against him in light of the pending
petition for review by his co-accused before this Court of the same decision for
which he was convicted. Should the decision be set aside by the Supreme Court,
petitioner Lindong contends, he will be benefited to the extent that there can no
longer be any judgment to legally execute against both himself and Constantino.
The virtual acquittal of Constantino inevitably puts a welcome end to the
tribulations of Lindong. Thus, we grant the petition.
One of the essential elements for violating Section 3(e) of R.A. No. 3019 is that
the respondent is a public officer discharging administrative, judicial or official
functions, or that he or she is a private individual in conspiracy with such public
officer. In the instant case, the essential acquittal of Constantino, as presaged in
G.R. No. 140656 and presented in the disquisition, renders an absence in the
critical requisite of a public officer with whom Lindong, the private individual,
allegedly conspired to commit the crime charged.
Hence, we now have before us an incongruous situation where execution of
judgment has been entered against a private person accused with conspiring
with a public officer for violation of the anti-graft law, but at the same time said
public officer would unequivocably be entitled to exoneration had he not died in
the meantime. Yet, it is utterly illogical to absolve Constantino who entered into
the contract on behalf of the government and send the private person to prison.
The case of Marcos v. Sandiganbayan (1st Division)55 is instructive. Here, the
Court granted the motion for reconsideration filed by former First Lady Imelda
Marcos and acquitted her of the charge of violating Section 3(g) of R.A. No.
3019. Her acquittal was based on the finding that she signed the subject lease
agreement not as a public officer, but as a private person. Thus, the Court found
that the first element of the offense, i.e., that the accused is a public officer, was
lacking. However, the acquittal of the former First Lady was taken in conjunction
with the acquittal of the public officer with whom she was accused. 56
The case of Go v. The Fifth Division, Sandiganbayan, et al. 57 further elucidates
the matter as illustrated in Marcos, to wit:
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x x x [T]he acquittal of the former First Lady should be taken in the context of the
Courts Decision dated January 29, 1198, in Dans, Jr. v. People, which the former
First Lady sought to reconsider and, finding merit in her motion, gave rise to the
Courts Resolution in Marcos. In Dans, the Information filed against the former
First Lady and Jose P. Dans, Jr., then Minister of Transportation and
Communications, for violation of Section 3(g) of R[.]A[.] [No.] 3019, alleged that
they were both public officers and, conspiring with each other, entered into the
subject lease agreement covering the LRTA property with the PGHFI, a private
entity, under terms and conditions manifestly and grossly disadvantageous to the
government.
The Court in its original decision affirmed the former First Ladys conviction for
violation of Section 3(g) of R[.]A[.] [No.] 3019 but acquitted her co-accused,
Dans, Jr., of the said offense. As stated earlier, upon the former First Ladys
motion for reconsideration, the Court reversed her conviction in its Resolution in
Marcos.
It can be gleaned from the entire context of Marcos and Dans that the reversal of
the former First Ladys conviction was based on the fact that it was later held that
she signed the subject lease agreement as a private person, not a public officer.
However, this acquittal should also be taken in conjunction with the fact that the
public officer with whom she had supposedly conspired, her co-accused Dans,
had earlier been acquitted. In other words, the element that the accused is a
public officer, was totally wanting in the former First Ladys case because
Dans, the public officer with whom she had allegedly conspired in
committing Section 3(g) of R[.]A[.] [No.] 3019, had already been acquitted.
Obviously, the former First Lady could not be convicted, on her own as a
private person, of the same offense. (Emphasis supplied)
It is therefore apparent that in light of the prevailing milieu in the instant case, we
cannot sustain the execution of judgment against Lindong. The reversal of the
decision of the Sandiganbayan in Criminal Case No. 23433 makes it legally
absurd to execute any such judgment against him.
Moreover, Rule 122, Section 11(a) of the Revised Rules of Criminal Procedure
operates in his favor. The Rule provides:
SEC. 11. Effect of appeal by any of several accused.
(a) An appeal taken by one or more of several accused shall not affect those who
did not appeal, except insofar as the judgment of the appellate court is favorable
and applicable to the latter.
Although the rule states that a favorable judgment shall benefit those who did not
appeal, we have held that a literal interpretation of the phrase "did not appeal"
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will not give justice to the purpose of the provision. It should be read in its entirety
and should not be myopically construed so as to defeat its reason, i.e., to benefit
an accused who did not join in the appeal of his co-accused in case where the
appellate judgment is favorable.58
In fact, the Court has at various times applied the foregoing provision without
regard to the filing or non-filing of an appeal by a co-accused, so long as the
judgment was favorable to him. In such cases, the co-accused already withdrew
his appeal,59 failed to file an appellants brief, 60 or filed a notice of appeal with the
trial court but eventually withdrew the same. 61 Even more, in these cases, all the
accused appealed from the judgment of conviction but for one reason or another,
their conviction had already become final and executory. Nevertheless, the Court
still applied to them the favorable judgment in favor of their co-accused. 62
Therefore, we cannot find a reason to treat Lindong differently, especially so in
this case where the public officer accused of violating the anti-graft law has been
acquitted, and the appeal by Lindong was dismissed on a technicality.
WHEREFORE, the petition in G.R. No. 140656, although meritorious, is DENIED
on the ground of mootness. The petition in G.R. No. 154482 is GRANTED. The
challenged orders of the
Sandiganbayan in Criminal Case No. 23433 are NULLIFIED and SET ASIDE.
The Sandiganbayan is permanently enjoined from executing said orders.
SO ORDERED.
G.R. No. 90626 August 18, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RICARDO ALCORIZA LASCUNA, ROSITA DIONISIO VILLENA, CELSO CANO
ALGOBA and PLACIDO AQUINO PALANGOY, accused. PLACIDO AQUINO
PALANGOY, accused-appellant.
The Solicitor General for plaintiff-appellee.
Joel Angelo C. Cruz for accused-appellant.

DAVIDE, JR., J.:

Accused Ricardo Alcoriza Lascuna, Rosita Dionisio Villena, Celso Cano Algoba
and Placido Aquilino Palangoy 1 were charged on 16 January 1989 with robbery
with homicide, rape and physical injuries before the Regional Trial Court (RTC) of
Malolos, Bulacan in an information 2 with the following accusatory portion:
Page 63 of 158

That on or about the 16th day of October, 1988, in the municipality of Malolos,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with Danilo Lagasca who is still at large and
against whom the preliminary investigation has not yet been completed by the
Municipal Trial Court of Malolos, conspiring and confederating together and
helping one another, with intent of (sic) gain and by means of force and
intimidation, did then and there wilfully, unlawfully and feloniously take, rob and
carry away with them toys, cash, assorted clothes, wrist watches and valuable
documents worth P4,900.00 all belonging to Luisa A. Villena, to the damage and
prejudice of the said Luisa A. Villena in the total amount of P4,900.00; that by
reason or on the occasion of the said robbery, the above-named accused, with
Danilo Lagasca who is still at large as aforesaid, in furtherance of their
conspiracy, did then and there wilfully, unlawfully and feloniously with intent to kill
one Honesto Altiche, attack, assault and strangle the said Honesto Altiche,
thereby resulting to his death; did then and there wilfully, unlawfully and
feloniously, with force and intimidation and with lewd designs, have carnal
knowledge of Luisa A. Villena against her will; did then and there wilfully,
unlawfully and feloniously attack, assault and strangle the said Luisa A. Villena,
inflicting on her slight physical injuries which required medical attendance and
incapacitated her from, performing her customary labor for a period of nine (9)
days.
Contrary to law.
Each of the four accused pleaded not guilty upon being arraigned on 1 February
1989. 3
On 10 February 1989, the trial court directed the assistant public prosecutor to
amend the information by including Danilo Lagasca as co-accused. 4
On 17 March 1989, after the principal prosecution witness, Luisa Villena y
Altiche, had completed her testimony on direct examination, accused Ricardo
Lascuna and Celso Algoba sought leave of court to change their not guilty plea to
guilty. The trial court granted the request, re-arraigned them and issued an order
5
the dispositive portion of which reads:
WHEREFORE, judgment, of conviction is imposed upon the accused Ricardo
Alcoriza Lascuna and Celso Cano Algoba by (sic) proof beyond reasonable
doubt are found guilty and they are sentenced to a straight penalty of 12 years
and 1 day to 20 years.
SO ORDERED.
Thereupon, trial proceeded against accused Rosita Villena and Placido
Palangoy. Aside from Luisa Villena y Altiche, the other witnesses presented by
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the prosecution were Patrolmen Felicito de Belen, Oscar Enriquez and Jose
Marcelino, Jr. of the Integrated National Police (INP) of Malolos, Bulacan, Dr.
Juanito Sacdalan, Dr. Rolando Victoria, Dr. Isadora Gatbonton and Eduardo
Vinuya, a neighbor of the victims. The defense, on the other hand, presented
Celso Algoba who was by then already serving sentence, Rosita Villena and
Placido Palangoy. Accused Ricardo Lascuna, who was likewise serving
sentence, was subpoenaed but failed to appear. Apparently, on 26 July 1989, he
escaped from detention. 6
The prosecution's evidence establishes the following facts:
Luisa Villena y Altiche, together with her eight-month-old daughter and brother
Honesto Altiche, was in her house at Bgy. Cofradia, Malolos, Bulacan on the
night of 16 October 1988. Honesto was staying with her since her husband was
working abroad. While both Honesto and Luisa were watching a television show
at around 7:00 o'clock, the latter's sister-in-law, Rosita Villena, knocked on the
door of the house. When Luisa opened the door, Rosita came in with her
daughter and four strangers, three of whom the former later identified in court as
the accused Celso Algoba, Ricardo Lascuna and Placido Palangoy. The fourth
person, identified as Danilo Lagasca, was not present in court. Ricardo Lascuna
and Danilo Lagasca were both carrying knives which they poked at Luisa and
Honesto while, Celso Algoba and Placido Palangoy started ransacking the
house. Luisa and her brother were then gagged and their hands and feet were
tied. 7 Both were herded inside the bedroom where Luisa was raped by Ricardo
Lascuna while Honesto was asked to turn his back. Thereafter, Luisa was
dragged into the kitchen 8 where she heard her brother, who was still inside the
bedroom with Danilo Lagasca and Ricardo Lascuna, start moaning. She then lost
consciousness and was left for dead after being strangled with pieces of cloth.
Before this, however, Luisa noticed that Rosita Villena was the person giving out
instructions to her co-accused. Luisa claims that she was able to recognize the
persons who entered her house since they stayed there from 7:00 o'clock in the
evening of 16 October 1998 up to 2:00 o'clock in the morning of the following
day. Based on what she heard from them, it appears that the accused could not
leave earlier because of a checkpoint in the area. It was only after regaining
consciousness at around 3:00 o'clock that same morning that Luisa was able to
free herself. Upon doing so, she proceeded to the bedroom where she found her
brother who was already dead. She also discovered that an instamatic camera, a
man's gold ring, a gold wrist watch, assorted clothes, a ladies' gold ring, P400.00
in cash and a pair of toy walkie-talkies were missing. All told, her loss amounted
to P4,900.00. 9 Luisa then sought the help of a neighbor, Eduardo Vinuya. Vinuya
brought her to his house and, together with his cousin and nephew, later
proceeded to her house; upon reaching the house, they discovered its kitchen
and living room in disarray. Inside the bedroom, they found the body of Honesto
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with an electric cord tied around his neck. They immediately reported the crime to
the barangay captain of Cofradia and the police authorities. 10 As a result thereof,
a police team was dispatched to the scene of the crime. At around 6:00 o'clock
that same morning, Luisa Villena was questioned in the police station where she
revealed that one of the persons who entered her house was her sister-in-law,
Rosita Villena. A police team was thus dispatched to apprehend the latter in Bgy.
Ibayo, Marilao, Bulacan. While being ferried to the station in the police car,
Rosita, when asked who her companions were, implicated Celso Algoba her
live-in partner a certain Dong, Placido (Palangoy) and Danny (Danilo
Lagasca). She then led the policemen to the latter's respective houses. With the
exception of Danilo Lagasca who was able to escape, the other accused were
apprehended and brought to the police station where they were identified by
Luisa. 11 At the station, accused Palangoy was wearing a polo shirt and a pair of
pants (Exhibits "F-2" and "F-3") which were among the items taken from Luisa's
house. 12
Pat. Jose Marcelino, Jr., a member of the team dispatched to the crime scene,
prepared a sketch of the house where the crime was committed. He likewise
stated that the house was in disarray when he entered it and that the body of
Luisa's brother was inside the bedroom with its hands bound together by an
electric cord; an electric, cord was also coiled around its neck. For her part,
accused Rosita Villena admitted participating in the commission of the crime but
such admission was not reduced to writing. 13
The autopsy, of Honesto Altiche's body, conducted by Dr. Juanito Sacdalan,
Municipal Health Officer of Malolos, Bulacan, revealed that there were marks on
the neck and wrists of the victim. Honesto's death was attributed to "[A]spyxia
(sic) due to occluded trachea and esophagus" and the breaking of the trachea as
a result of strangulation. 14
On the other hand, Dr. Rolando, Victoria found abrasions in the neck of Luisa
Villena 15 while Dr. Isadora Gatbonton's internal examination revealed "a normal
looking external genitalia; labia minora and majora; clitoris were all intact with
superficial abrasion 0-3 cm. over the posterior fourchette; negative bleeding; . . .
nagative (sic) tenderness, negative abnormal discharge (sic); . . . negative
spermatozoa." 16 Dr. Gatbonton declared that the superficial abrasion "could
possibly be secondary to irritation wherein a patient has a tendency to scratching
(sic) so that abrasion is brought about and another possible cause is violent (sic)
attempt of penetration or insertion of any object." 17
Testifying for the defense, Celso Algoba admitted that he robbed Luisa Villena's
house on 16 October 1989 together with Ricardo Lascuna, Danilo Lagasca and
another person whose name he does hot know. Celso, however, denied that
Rosita Villenahis live-in partnerand accused Placido Palangoy were with
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them at the time. According to him, Rosita was in their apartment in Marilao,
Bulacan at the time of the commission of the crime. While claiming to have no
knowledge of Luisa's rape, Algoba declared that Ricardo Lascuna and Danilo
Lagasca strangled the latter and killed Honesto Altiche. When presented with an
item recovered from Placido Palangoy, Algoba stated that he sold the same to
the latter for P60.00. 18
For her part, Rosita Villena denied any participation in the crime. She testified
that she was at home with her daughter on the night of 16 October 1988 and that
when she woke up at 7:00 o'clock the next morning, some, policemen arrived,
searched their things and took the toy walkie-talkies from them. She averred that
it was Celso who brought the said toy walkie-talkies home and recounted to her
the robbery staged in the house of Luisa Villena. Although she wanted to report
the matter to the authorities, Rosita desisted because Celso threatened her. 19
Placido Palangoy also denied participating in the commission of the crime. He
claimed that on the night of 16 October 1988, he was washing his child's diapers
upon orders of his wife. After doing so, he went to sleep. The next morning, after
hanging the diapers out to dry and taking a bath, he was approached by a
stranger who sold him clothes for P60.00. A few moments later, the same
stranger returned to Palangoy's house with some policemen. Palangoy was
thereupon brought to the police station with three other men; in the station, they
were confronted by a lady who declared that they were the persons who robbed
her house. 20
On 21 August 1989, immediately after accused Rosita Villena and Placido
Palangoy had finished testifying and the prosecution had announced that it had
no rebuttal evidence to present, the trial judge declared:
COURT:
Promulgation of Judgment.
By proof beyond reasonable doubt, the Court finds both accused, Rosita Villena
and Placido Palangoy guilty of the crime of Robbery with Homicide, Rape and
Serious Physical Injuries covered by Art. 48 of the Revised Penal Code and
applying Art. 294 paragraphs 1 and 2. They are sentenced to suffer life
imprisonment, reclusion perpetua and to indemnify the family of the deceased
Honesto Altiche the amount of P30,000.00.
SO ORDERED. 21
Thereafter, the trial court promulgated a 10-page decision,
portion of which reads as follows:

Page 67 of 158

22

the dispositive

WHEREFORE, the Court finds accused Rosita Dionisio Villena and Placido
Aquino Palanggoy guilty beyond reasonable doubt of the crime charged in the
Information and hereby sentences each of them to suffer life imprisonment
(reclusion perpetua) in accordance with Art. 294, pars. 1 and 2, and to indemnify
the family of the deceased the amount of P30,000.00 each.
Accused Rosita Villena and Placido Palangoy filed their notice of appeal on 23
August 1989. 23 The records of the case were, however, erroneously forwarded to
the Court of Appeals which, upon orders of the Presiding Justice thereof, properly
transmitted the same to this Court on 30 October 1989. 24 We accepted the
appeal on 29 May 1991. 25
On 16 March 1992, accused-appellant Rosita Villena filed a motion to withdraw
her appeal 26 which this Court granted on 3 March 1991. 27 In view thereof, this
decision concerns only the accused Placido Palangoy, hereinafter referred to as
the Appellant.
In his Brief, the appellant avers that the RTC erred:
1.1
. . . IN GIVING WEIGHT TO THE ACCUSED'S ALLEGED ADMISSION OF
GUILT
1.2
. . . IN HOLDING AGAINST APPELLANT PLACIDO PALANGGOY THAT HE
WAS WEARING THE PANTS AND SHIRT TAKEN FROM THE VILLENA
HOUSEHOLD AT THE TIME OF (HIS) APPREHENSION
1.3
. . . IN NOT GIVING WEIGHT TO PLACIDO PALANGGOY'S DEFENSE OF
ALIBI
1.4
. . . IN FINDING THAT RAPE WAS COMMITTED AGAINST LUISA VILLENA
1.5
. . . IN HOLDING AS AGAINST ACCUSED-APPELLANT PALANGGOY THAT
THE HOMICIDE AND RAPE WAS (sic) PART OF THE CONSPIRACY
1.6

Page 68 of 158

. . . IN NOT APPLYING ARTICLE 13, PAR. 3 OR 10 (OF THE REVISED PENAL

CODE) AS MITIGATING CIRCUMSTANCE (sic) FOR ACCUSED-APPELLANT
1.7
. . . THE REGIONAL TRIAL COURT DEPRIVED APPELLANT HIS (sic) RIGHT
TO PROCEDURAL DUE PROCESS BY DISPLAYING MANIFEST BIAS
AGAINST ACCUSED AND PREJUDGING THE CASE.
Subject to the observations and modifications hereinafter indicated, we are left
with no choice but to affirm the judgment of conviction.
The first assigned error results from a misreading of the challenged decision for
as correctly contended by the appellee, the appellant's conviction is not based on
the admissions of the accused Rosita Villena. It appears that the appellant's
conclusion proceeds from the trial court's summary of the testimonies of the
prosecution witnesses found under the sub-heading PROSECUTION'S
EVIDENCE. It is to be observed that the court's own findings of fact, capsulized
under the sub-heading FINDINGS AND FACTS, do not even make any reference
to any admission made by the appellant.
At the bottom of the second imputed error lies the issue of the sufficiency of the
appellant's explanation of his possession of the pair of "maong" pants and polo
shirt which were among the personal items taken from Luisa Villena's house on
the night of the incident. The appellant claims to have purchased the same from
Celso Algoba in the morning of 17 October 1988 while he (appellant) was drying
his child's diapers. We are not persuaded at all by this concocted story. At the
police station's information section where he was seen by Luisa Villena wearing
the said items of clothing, the appellant did not even volunteer the information
that Celso had sold the clothes to him. The latter only offered his explanation
when he testified in court. As hereinafter discussed, he was positively identified
by Luisa Villena as one of the perpetrators of the robbery. Thus, he miserably
failed to overcome the presumption that a person found to be in possession of
the effects belonging to a person robbed and killed is considered the author of
the aggression, death of the person and the robbery committed. 28
In his third assigned error, the appellant faults the trial court for not giving due
weight to his alibi and contends that he was not positively and clearly identified
as one of the perpetrators of the crime; he avers that Luisa Villena did not single
him out from a police line-up. Moreover, he claims that Luisa Villena did not
know, with the exception of Rosita Villena her sister-in-law, any of the accused
before they were presented to her. Again, we are not persuaded. In the first
place, while it is true that Rosita was the only person whom Luisa knew by name,
it does not necessarily follow that the latter could not identify the rest of the
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accused. In fact, Luisa did Just that at the police station and in court during trial.
Secondly, it was Rosita Villena who revealed the identities of her co-accused and
even led the police team to the latter's houses where they, with the exception of
Danilo Lagasca, were apprehended.
There is no doubt in our minds that Luisa Villena was able to positively identify
the appellant when he was inside her house since he and his co-accused stayed
there from 7:00 o'clock in the evening of 16 October 1988 to 2:00 o'clock in the
morning of the following day. In fact, she remembered the appellant very well
because while the latter was inside the house, he changed into the very pair of
maong pants and polo shirt which he was wearing when apprehended. 29 It is a
fundamental juridical dictum that the defense of alibi cannot prevail over the
positive identification of the accused. 30
Appellant's arguments in support of his fourth assigned error are no more
persuasive than those invoked to buttress the earlier errors. We cannot agree
with his proposition that the evidence presented does not support the trial court's
conclusion that rape was committed. According to him, the details of the alleged
sexual assault were applied only through the leading and misleading questions
propounded by the court to the witnesses. Dr. Victoria, the physician who
examined Luisa in the morning after the incident, testified that the latter did not
complain to him that she had been raped; on the other hand, Dr. Gatbonton, the
obstetrician who examined Luisa in the afternoon, could not say whether the
latter was raped or not. Hence, the appellant concludes that any doubt should be
resolved in his favor.
Luisa Villena satisfactorily explained that she did not initially report the rape
committed against her because she was ashamed to admit it. 31 When she
testified in open court, however, she did not waver in her account of the assault
on her. In fact, the overzealous defense counsel elicited, during crossexamination, further details on how the despicable deed was consummated:
ATTY. DELA CRUZ:
Q How can the accused Lascuna be able to rape you when you said that your
brother was beside you and your child who may be one year old beside (sic)
you?
A What can my brother do, he was tied up?
ATTY. DELA CRUZ:
Q Assuming that your brother did not do anything but your child is beside you, is
it not?
Page 70 of 158

A Ricardo Lascuna made me lie down and he was thrusting the knife on my
neck, sir.
Q And you did not struggle, is it not?
A I was struggling, sir, but what can I do I am just a woman and I have a weaker
strength (sic). 32
It is settled that when a woman says that she had been raped, she says in effect
all that is necessary to show that she had indeed been raped, and if her
testimony meets the test of credibility, the accused may be convicted on the basis
of the victims testimony. 33 There is no reason for Luisa Villena to claim that she
had been raped if it was not true. Considering a Filipina's inbred modesty and
antipathy in airing publicly things that affect her honor, it is hard to conceive that
Luisa would undergo the expense, trouble and inconvenience of a public trial,
suffer the scandal, embarrassment and humiliation such action would indubitably
invite and allow the examination of her private part if she had not been raped and
her motive was other than to bring to justice the person who committed the
crime. 34
While it is true that the examining obstetrician declared that she was not sure
whether Luisa had actually been raped, the former nevertheless admitted that it
was possible that she was.
And even if the trial court had indeed asked "leading and misleading questions,"
it is now too late for the appellant to raise his objection thereto in this appeal. His
counsel should have interposed the appropriate objections to such questions at
the time they were asked.
In support of his fifth assigned error, the appellant contends that granting,
arguendo, that he was indeed one of the malefactors, the trial court nonetheless
erred in finding him guilty of rape and homicide since no evidence was presented
to show his participation in or knowledge of the commission thereof. He adds that
the doctrine in this jurisdiction that when the homicide takes place as a
consequence of or on occasion of a robbery, all those who took part in the
robbery are guilty as principals of the crime of robbery with homicide, unless
proof is presented that the accused tried to prevent the killing should not be
applied to him since he could not have prevented someone from doing
something which he (appellant) was not even aware of in the first place.
Such reasoning is terribly flawed. The general rule is that whenever a homicide is
committed as a consequence, or on occasion of a robbery, all those who took
part therein are liable as principals of the crime of robbery with homicide,
although some did not actually take part in the homicide. 35 Besides, it is difficult
to believe that the appellant was not aware of the killing of Honesto Altiche. Luisa
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Villena's house was not large enough to allow any of the accused to have his
privacy as the same is a mere one bedroom affair, with a sala and kitchen which
have no partitions at all. 36 During the seven hours that they were inside Luisa's
house, each of them had access to all the areas therein. When Honesto was
killed, the bedroom door was even ajar. 37 It is likewise not believable that the
appellant did not know that Luisa was also strangled because this was done in
the kitchen.
For his sixth ascribed error, the appellant would have us credit him with the
mitigating circumstances described under either paragraph 3 or 10, Article 13 of
the Revised Penal Code, 38 he asseverates that if such circumstances are not
appreciated in his favor, an injustice would result since a light sentence was
meted out to Ricardo Lascuna, Luisa's actual rapist.
Paragraph 3, Article 13 of the Revised Penal Code addresses itself to the
intention of the offender at the particular moment when he executes or commits
the criminal act, and not to his intention during the planning stage. 39 Thus, while
it may be argued that the agreement was only to rob the victims, the perpetrators'
acts at the time of the incident show that the conspiracy not only contemplated
the commission of the robbery, but also the elimination of any witnesses to the
crime. Therefore, the mitigating circumstance of lack of intention to commit so
grave a wrong cannot be appreciated in favor of the appellant. Besides,
conspiracy having been proven in this case, the act of one is the act of all.
Corollarily, the circumstance of "analogous circumstances" cannot find
application in the instant case.
We find, however, the straight penalty of 12 years and 1 day to 20 years imposed
on Ricardo Lascuna and Celso Algoba after they had changed their plea from not
guilty to guilty, to be erroneous. The penalty for robbery with homicide under the
first paragraph of Article 294 of the Revised Penal Code is reclusion perpetua to
death. Since, as hereinafter discussed, the rape committed against Luisa
aggravated the crime, the imposable penalty would have been death had its
imposition not been prohibited by Section 19(1), Article III of the 1987
Constitution. Accordingly, the penalty that should have been imposed upon them
is reclusion perpetua. Additionally, both should have been made civilly liable for
their acts. While we are not concerned here with accused Lascuna and Algoba
as the judgment against them has become final by their service of sentence, the
trial court's mistake in imposing the said penalty on the two cannot now benefit
the appellant.
Finally, we find ourselves unable to accommodate the appellant in his last
assigned error. He claims that he was denied due process because the trial
judge displayed manifest bias and prejudice against him by asking questions
which led witnesses to a preconceived notion of what the facts are, and of
Page 72 of 158

promulgating a judgment "right in the hearing when the defense presented its
case and within seconds after both sides rested their cases. 40
While the trial court's decision leaves much to be desired, we cannot agree with
the appellant's sweeping conclusion. The questions propounded by the trial judge
merely sought to clarify important matters. Judges are not mere referees like
those of a boxing bout, only to watch and decide the results of a game; they
should have as much interest as counsel in the orderly and expeditious
presentation of evidence, calling the attention of such counsel to points at issue
that are overlooked, directing them to ask questions that would elicit the facts on
the issues involved, clarifying ambiguous remarks by witnesses and so on. 41
It is true that as earlier adverted to, the trial court orally "promulgated" its
judgment by dictating the same to the stenographer on 21 August 1989 after the
completion of the testimonies of both Rosita Villena and the appellant and the
prosecutor's manifestation that no rebuttal evidence was to be presented. Thus:
COURT:
Promulgation of Judgment.
By proof beyond reasonable doubt, the Court finds both accused, Rosita Villena
and Placido Palanggoy guilty of the crime of Robbery with Homicide, Rape and
Serious Physical Injuries covered by Art. 48 of the Revised Penal Code and
applying Art. 294 paragraphs 1 and 2. They are sentenced to suffer life
imprisonment, reclusion perpetua and to indemnify the family of the deceased
Honesto Altiche the amount of P30,000.00. 42
Such behavior does not manifest bias or prejudice per se for in view of the fact
that the parties did not opt to submit their respective memoranda, the court
forthwith considered the case submitted for decision. A trial judge who has
painstakingly listened to the testimonies of the witnesses, taken notes of such
testimonies and meticulously observed the latter's deportment and manner of
testifying may logically be presumed to have properly made up his mind on what
the decision should be. What may therefore remain for him is the actual writing of
the decision. Judges are not required to await the transcription of the
stenographic notes before they can render their decisions; 43 if this were so, there
would be undue delays in the criminal justice system with judges easily finding
justification for failing to comply with the mandatory period to decide cases.
Hence, the promulgation of judgment by a Judge who, on the same hour, had
first considered the case submitted for his decision, does not ipso facto warrant a
presumption of bias. This is true in the instant case where our own review of the
evidence sustains beyond reasonable doubt the judgment of conviction.
Page 73 of 158

It must, however, be stressed here that the "verbal" judgment promulgated by the
trial court was incomplete as it does not contain findings of fact and is not signed
by the Judge. The Constitution provides that no decision shall be rendered by
any court without expressing therein clearly and distinctly the facts and the law
on which it is based. 44 In criminal cases, Section 2, Rule 120 of the Rules of
Court requires that a "judgment must be written in the official language,
personally and directly prepared by the judge and signed by him and shall
contain clearly and distinctly a statement of the facts proved or admitted by the
accused and the law upon which the judgment is based." Be that as it may, the
infirmity was corrected by the trial court itself when it subsequently issued a fullblown Judgment dated 21 August 1989 which contains a summary of the
evidence for the parties, findings of fact and the signature of the Judge. The
records do not, however, yield any proof that this full-blown Judgment was
promulgated. Such a promulgation was necessary considering that the sentence
dictated by the trial judge on 21 August 1989 is not similar in all respects to the
dispositive portion of the full-blown decision. In view of the fact that in the Notice
of Appeal, the appellant explicitly refers to the Judgment dated 21 August, 1989,
it is logical to presume that the same was properly promulgated.
In any event, we take this opportunity to advise Judges to strictly comply with the
rules on the form of judgments and their rendition.
We agree with the Solicitor General's observation that the crime committed was
erroneously designated as robbery with homicide, rape and physical injuries, The
proper designation is robbery with homicide aggravated by rape. When rape and
homicide co-exist in the commission of robbery, it is the first paragraph of Article
294 of the Revised Penal Code which applies, the rape to be considered as an
aggravating circumstance. 45 The physical injuries inflicted on Luisa Villena and
the killing of Honesto Villena should be merged in the composite, integrated
whole that is, robbery with homicide it being clear that both the killing and
physical injuries were perpetrated with the end in view of removing all opposition
to the robbery, suppressing the relevant evidence or both. 46
Once again, we note in this case the imposition by a trial judge of the penalty of
"life imprisonment (reclusion perpetua)" in a manner that would make the former
seem equivalent to or synonymous with the latter. Not only have we repeated in a
number of cases that the two penalties are not synonymous, we have likewise
advised Judges to apply the appropriate penalty and even warned them against
lapsing into the same error. 47 All trial judges should seriously take heed of our
pronouncement on this matter.
We also observe that the trial court failed to order the accused to pay the
offended party actual damages in the amount of P4,900.00 representing the cash
and the value of the articles taken by them.
Page 74 of 158

Finally, conformably with the current policy of this Court, moral damages in the
amount of P40,000.00 should be awarded to the rape victim, Luisa Villena y
Altiche while the indemnity for the death of Honesto Altiche should be increased
to P50,000.00.
WHEREFORE, the challenged decision of Branch 15 of the Regional Trial Court
of Bulacan in Criminal Case No. 105-M-89 is AFFIRMED subject to the above
modifications. As modified, Appellant PLACIDO AQUINO PALANGOY (or
PALANGGOY) is hereby found guilty beyond reasonable doubt, as principal, of
the special complex crime of robbery with homicide aggravated by rape under
the first paragraph of Article 294 of the Revised Penal Code and is sentenced to
suffer the penalty of reclusion perpetua, with all its accessories, indemnify the
heirs of Honesto Altiche in the amount of P50,000.00 and pay Luisa Villena y
Altiche the sums of P4,900.00 as actual damages and P40,000.00 as moral
damages.
Costs against the appellant.
SO ORDERED.
G.R. Nos. 143468-71

January 24, 2003

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FREDDIE LIZADA @ FREDIE LIZADA, accused-appellant.
CALLEJO, SR., J.:
This is an automatic review of the Decision 1 of the Regional Trial Court of Manila,
Branch 54, finding accused-appellant Freddie Lizada guilty beyond reasonable
doubt of four (4) counts of qualified rape and meting on him the death penalty for
each count.
I. The Charges
Accused-appellant2 was charged with four (4) counts of qualified rape under four
separate Informations. The accusatory portion of each of the four Informations
reads:
"That sometime in August 1998 in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and
feloniously, by means of force, violence and intimidation upon the person of one
ANALIA ORILLOSA y AGOO, by then and there embracing her, kissing and
touching her private parts, thereafter removing her skirt and panty, placing
himself on top of her and trying to insert his penis into her vagina and succeeded
Page 75 of 158

in having carnal knowledge with the said ANALIA ORILLOSA y AGOO, against
her will and consent.
Contrary to law.
xxx

xxx

xxx

That on or about November 5, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and
feloniously, by means of force, violence and intimidation upon the person of one
ANALIA ORILLOSA Y AGOO, by then and there embracing her, kissing and
touching her private parts, thereafter removing her skirt and panty, placing
himself on top of her and trying to insert his penis into her vagina and succeeded
in having carnal knowledge with the said ANALIA ORILLOSA Y AGOO, against
her will and consent.
Contrary to law.
xxx

xxx

xxx

That on or about October 22, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and
feloniously, by means of force, violence and intimidation upon the person of one
ANALIA ORILLOSA Y AGOO, by then and there embracing her, kissing and
touching her private parts, thereafter removing her skirt and panty, placing
himself on top of her and trying to insert his penis into her vagina and succeeded
in having carnal knowledge with the said ANALIA ORILLOSA Y AGOO, against
her will and consent.
Contrary to law.
xxx

xxx

xxx

That on or about September 15, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and
feloniously, by means of force, violence and intimidation upon the person of one
ANALIA ORILLOSA Y AGOO, by then and there embracing her, kissing and
touching her private parts, thereafter removing her skirt and panty, placing
himself on top of her and trying to insert his penis into her vagina and succeeded
in having carnal knowledge with the said ANALIA ORILLOSA Y AGOO, against
her will and consent.
Contrary to law."3
The four (4) Informations were docketed as Criminal Cases Nos. 99-171390, 99171391, 99-171392 and 99-171393, respectively.
Page 76 of 158

Accused-appellant was arraigned on April 15, 1999, assisted by counsel de parte

and entered a plea of not guilty to each of the charges. 4 A joint trial then ensued.
II. Evidence of the Prosecution5
Ricardo Orillosa and his wife, Rose Orillosa, natives of San Isidro, Bohol, had
three (3) children, namely: Analia, who was born on December 18, 1985; 6 Jepsy,
who was 11 years old, and Rossel, who was nine years old. However, the couple
decided to part ways and live separately. Rose left Bohol and settled in Manila
with her young children. She worked as a waitress to make both ends meet.
In 1994, Rose met accused-appellant. They decided to live together as husband
and wife at No. 1252 Jose Abad Santos Street, Moriones, Tondo, Manila. In
1996, Rose resigned from her job as a waitress. She secured a loan, bought a
truck and used it for her business.
In the meantime, Rose secured a loan anew and used the proceeds thereof to
put up a video shop in her house. She sold Avon products from house to house
to augment her income. Whenever she was out of their house, Rossel and Analia
took turns in tending the video shop and attending to customers.
Sometime in 1996, Analia was in her room when accused-appellant entered. He
laid on top of her, removed her T-shirt and underwear. He then inserted his finger
in her vagina. He removed his finger and inserted his penis in her vagina.
Momentarily, she felt a sticky substance coming out from his penis. She also felt
pain in her sex organ. Satiated, accused-appellant dismounted but threatened to
kill her if she divulged to anyone what he did to her. Accused-appellant then
returned to his room. The incident lasted less than one hour. Petrified by the
threats on her life, Analia kept to herself what happened to her.7
Sometime in August 1997, accused-appellant entered again the room of Analia,
placed himself on top of her and held her legs and arms. He then inserted his
finger into her sex organ ("fininger niya ako"). Satiated, accused-appellant left the
room. During the period from 1996 to 1998, accused-appellant sexually abused
private complainant two times a week.
On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their house
studying her assignments. Accused-appellant was also in the sala. Rossel
tended the video shop while his mother was away. Analia went into her room and
lay down in bed. She did not lock the door of the room because her brother might
enter any time. She wanted to sleep but found it difficult to do so. Accusedappellant went to his room next to the room of Analia. He, however, entered the
room of Analia. He was wearing a pair of short pants and was naked from waist
up. Analia did not mind accused-appellant entering her room because she knew
that her brother, Rossel was around. However, accused-appellant sat on the side
Page 77 of 158

of her bed, placed himself on top of her, held her hands and legs and fondled her
breasts. She struggled to extricate herself. Accused-appellant removed her panty
and touched her sex organ. Accused-appellant inserted his finger into her vagina,
extricated it and then inserted his penis into her vagina. Accused-appellant
ejaculated. Analia felt pain in her sex organ. Momentarily, Rossel passed by the
room of Analia after drinking water from the refrigerator, and peeped through the
door. He saw accused-appellant on top of Analia. Accused-appellant saw Rossel
and dismounted. Accused-appellant berated Rossel and ordered him to go to his
room and sleep. Rossel did. Accused-appellant then left the room. Analia likewise
left the room, went out of the house and stayed outside for one hour. Rose
arrived home at 6:00 p.m. However, Analia did not divulge to her mother what
accused-appellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the house. Accusedappellant was in the sala of the house watching television. Analia tended the
video shop. However, accused-appellant told Analia to go to the sala. She
refused, as nobody would tend the video shop. This infuriated accused-appellant
who threatened to slap and kick her.
Analia ignored the invectives and threats of accused-appellant and stayed in the
video shop. When Rose returned, a heated argument ensued between accusedappellant and Analia. Rose sided with her paramour and hit Analia. This
prompted Analia to shout. "Ayoko na, ayoko na." Shortly thereafter, Rose and
Analia left the house on board the motorcycle driven by her mother in going to
Don Bosco Street, Moriones, Tondo, Manila, to retrieve some tapes which had
not yet been returned. When Rose inquired from her daughter what she meant
by her statement, "ayoko na, ayoko na," she told her mother that accusedappellant had been touching the sensitive parts of her body and that he had been
on top of her. Rose was shocked and incensed. The two proceeded to Kagawad
Danilo Santos to have accused-appellant placed under arrest. On November 10,
1998, the two proceeded to the Western Police District where Analia gave her
Affidavit-Complaint to PO1 Carmelita Nocum in the presence of SPO2 Fe H.
Avindante. She related to the police investigator that accused-appellant had
touched her breasts and arms in August, 1998, September 15, 1998, October 22,
1998 and on November 5, 1998, at 3:00 p.m. Analia then submitted herself to
genitalia examination by Dr. Armie Umil, a medico-legal officer of the NBI. The
medico-legal officer interviewed Analia, told him that she was raped in May, 1997
at 3:00 p.m. and November 5, 1998 at 3:00 p.m. 8
Dr. Umil prepared and signed a report on "Living Case No. MO-98-1265" which
contained her findings during her examination on Analia, thus:
"xxx

xxx

xxx
Page 78 of 158

Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts,

developed, hemispherical, firm. , brown, 3.0 cms. in diameter. Nipples brown,
protruding, 0.7 cms. in diameter.
No extragenital physical injuries noted.
GENITAL EXAMINATION:
Pubic hair, fully grown, moderate. Labia majora and minora, coaptated.
Fourchette, tense. Vetibular mucosa, pinkish. Hymen, tall, thick, intact. Hymenal
orifice measures, 1.5 cms. in diameter. Vaginal walls, tight. Rugosities,
prominent.
CONCLUSIONS:
1). No evident sign of extragenital physical injuries noted on the body of the
subject at the time of examination.
2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude
complete penetration by an average-sized adult Filipino male organ in full
erection without producing any genital injury."9
Subsequently, Analia told her mother that "mabuti na lang iyong panghihipo lang
ang sinabi ko." When Rose inquired from her daughter what she meant by her
statement, Analia revealed to her mother that accused-appellant had sexually
abused her. On December 15, 1998, Analia executed a "Dagdag na Salaysay ng
Paghahabla" and charged accused-appellant with rape.10
III. The Defenses and Evidence of Accused-Appellant
Accused-appellant testified in his defense. He declared that after a month of
courtship, he and Rose agreed in 1994 to live together as husband and wife. He
was then a utility worker with the Navotas Branch of the Philippine Banking
Corporation. Rose, on the other hand, was a waitress at the Golden Bird beer
house at Rizal Avenue, Manila.
Accused-appellant denied having raped Analia. He claimed that he loved the
children of Rose as if they were his own children. He took care of them, as in fact
he cooked and prepared their food before they arrived home from school. At
times, he ironed their school uniforms and bathed them, except Analia who was
already big. Analia was hard-headed because she disobeyed him whenever he
ordered her to do some errands. Because of Analia's misbehavior, accusedappellant and Rose oftentimes quarreled. Rose even demanded that accusedappellant leave their house. Another irritant in his and Rose's lives were the
frequent visits of the relatives of her husband.
Page 79 of 158

Sometime in 1997, accused-appellant was retrenched from his employment and

received a separation pay of P9,000.00 which he used to put up the VHS Rental
and Karaoke from which he earned a monthly income of P25,000.00. While living
together, accused-appellant and Rose acquired two colored television sets, two
VHS Hi-fi recorders, one VHS player, one washing machine, one scooter motor,
two VHS rewinders, one sala set, one compact disc player and many other
properties.
Accused-appellant ventured that Rose coached her children Analia and Rossel to
testify against him and used them to fabricate charges against him because
Rose wanted to manage their business and take control of all the properties they
acquired during their coverture. Also, Rose was so exasperated because he had
no job.
IV. The Verdict
On May 29, 2000, the trial court rendered judgment against accused-appellant
finding him guilty beyond reasonable doubt of four (4) counts of rape, defined
and penalized in the seventh paragraph, no. 1, Art. 335 of the Revised Penal
Code, and meted on him the death penalty for each count. The dispositive
portion of the decision reads:
"From all the evidence submitted by the prosecution, the Court concludes that
the accused is guilty beyond reasonable doubt of the crime charged against him
in these four (4) cases, convicts him thereof, and sentences him to DEATH
PENALTY in each and every case as provided for in the seventh paragraph, no.
1, Article 335 of the Revised Penal Code.
SO ORDERED."11
V. Assigned Errors of the Trial Court
Accused-appellant assailed the decision of the court a quo and averred in his
brief that:
"THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF FACT
IN ITS DECISION AND SUCH FAILURE IS A REVERSIBLE ERROR." 12
xxx

xxx

xxx

"THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSEDAPPELLANT OF FOUR (4) COUNTS OF RAPE DESPITE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.13
VI. Findings of the Court
Page 80 of 158

On the first assignment of error, accused-appellant contends that the decision of

the trial court is null and void as it failed to comply with the requirements of
Section 14, Article VIII of the 1987 Constitution and Section 1, Rule 36 of the
1997 Rules of Civil Procedure, as amended. He avers that the court a quo made
no findings of facts in its decision. The trial court merely summarized the
testimonies of the witnesses of the prosecution and those of accused-appellant
and his witnesses, and forthwith set forth the decretal portion of said decision.
The trial court even failed to state in said decision the factual and legal basis for
the imposition of the supreme penalty of death on him. The Solicitor General, on
the other hand, argues that there should be no mechanical reliance on the
constitutional provision. Trial courts may well-nigh synthesize and simplify their
decisions considering that courts are harassed by crowded dockets and time
constraints. Even if the trial court did not elucidate the grounds as the legal basis
for the penalties imposed, nevertheless the decision is valid. In any event, the
Solicitor General contends that despite the infirmity of the decision, there is no
need to remand the case to the trial court for compliance with the constitutional
requirement as the Court may resolve the case on its merits to avoid delay in the
final disposition of the case and afford accused-appellant his right to a speedy
trial.
The contention of accused-appellant is well-taken. Article VIII, paragraph 14 of
the 1987 Constitution provides that "no decision shall be rendered by any court
without expressing therein clearly and distinctly the facts and the law on which it
is based." This requirement is reiterated and implemented by Rule 120, Section 2
of the 1985 Rules on Criminal Procedure, as amended, which reads:
"SEC. 2. Form and contents of judgment. The judgment must be written in the
official language, personally and directly prepared by the judge and signed by
him and shall contain clearly and distinctly a statement of the facts proved or
admitted by the accused and the law upon which the judgment is based.
If it is of conviction, the judgment shall state (a) the legal qualification of the
offense constituted by the acts committed by the accused, and the aggravating or
mitigating circumstances attending the commission thereof, if there are any; (b)
the participation of the accused in the commission of the offense, whether as
principal, accomplice, or accessory after the fact; (c) the penalty imposed upon
the accused; and (d) the civil liability or damages caused by the wrongful act to
be recovered from the accused by the offended party, if there is any, unless the
enforcement of the civil liability by a separate action has been reserved or
waived."14
The purpose of the provision is to inform the parties and the person reading the
decision on how it was reached by the court after consideration of the evidence
of the parties and the relevant facts, of the opinion it has formed on the issues,
Page 81 of 158

and of the applicable laws. The parties must be assured from a reading of the
decision of the trial court that they were accorded their rights to be heard by an
impartial and responsible judge.15 More substantial reasons for the requirement
are:
"For one thing, the losing party must be given an opportunity to analyze the
decision so that, if permitted, he may elevate what he may consider its errors for
review by a higher tribunal. For another, the decision if well-presented and
reasoned, may convince the losing party of its merits and persuade it to accept
the verdict in good grace instead of prolonging the litigation with a useless
appeal. A third reason is that decisions with a full exposition of the facts and the
law on which they are based, especially those coming from the Supreme Court,
will constitute a valuable body of case law that can serve as useful references
and even as precedents in the resolution of future controversies." 16
The trial court is mandated to set out in its decision the facts which had been
proved and its conclusions culled therefrom, as well as its resolution on the
issues and the factual and legal basis for its resolution. 17 Trial courts should not
merely reproduce the respective testimonies of witnesses of both parties and
come out with its decretal conclusion.
In this case, the trial court failed to comply with the requirements under the
Constitution and the Rules on Criminal Procedure. It merely summarized the
testimonies of the witnesses of the prosecution and of accused-appellant on
direct and cross examinations and merely made referral to the documentary
evidence of the parties then concluded that, on the basis of the evidence of the
prosecution, accused-appellant is guilty of four (4) counts of rape and sentenced
him to death, on each count.
The trial court even failed to specifically state the facts proven by the prosecution
based on their evidence, the issues raised by the parties and its resolution of the
factual and legal issues, as well as the legal and factual bases for convicting
accused-appellant of each of the crimes charged. The trial court rendered
judgment against accused-appellant with the court declaration in the decretal
portion of its decision that it did so based on the evidence of the prosecution. The
trial court swallowed hook, line and sinker the evidence of the prosecution. It
failed to explain in its decision why it believed and gave probative weight to the
evidence of the prosecution. Reading the decision of the trial court, one is apt to
conclude that the trial court ignored the evidence of accused-appellant. The trial
court did not even bother specifying the factual and legal bases for its imposition
of the supreme penalty of death on accused-appellant for each count of rape.
The trial court merely cited seventh paragraph, no. 1, Article 335 of the Revised
Penal Code. The decision of the trial court is a good example of what a decision,
Page 82 of 158

envisaged in the Constitution and the Revised Rules of Criminal Procedure,

should not be.
The Court would normally remand the case to the trial court because of the
infirmity of the decision of the trial court, for compliance with the constitutional
provision. However, to avert further delay in the disposition of the cases, the
Court decided to resolve the cases on their merits considering that all the records
as well as the evidence adduced during the trial had been elevated to the Court. 18
The parties filed their respective briefs articulating their respective stances on the
factual and legal issues.
In reviewing rape cases, this Court is guided by the following principles: (1) to
accuse a man of rape is easy but to disprove it is difficult though the accused
may be innocent; (2) considering the nature of things, and only two persons are
usually involved in the crime of rape, the testimony of the complainant should be
scrutinized with great caution; (3) the evidence for the prosecution must stand or
fall on its own merits and not be allowed to draw strength from the weakness of
the evidence of the defense.19 By the very nature of the crime of rape, conviction
or acquittal depends almost entirely on the credibility of the complainant's
testimony because of the fact that usually only the participants can testify as to
its occurrence. However, if the accused raises a sufficient doubt as to any
material element of the crime, and the prosecution is unable to overcome it with
its evidence, the prosecution has failed to discharge its burden of proving the
guilt of the accused beyond cavil of doubt and hence, the accused is entitled to
an acquittal.
Anent the second assignment of error, we will resolve the same for convenience,
as follows:
Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of
rape committed on or about October 22, 1998 and on or about September 15,
1998)
Accused-appellant avers that the prosecution failed to adduce the requisite
quantum of evidence that he raped the private complainant precisely on
September 15, 1998 and October 22, 1998. Moreover, the medical findings of Dr.
Armie Umil show that the hymen of the private complainant was intact and its
orifice so small as to preclude complete penetration by an average size adult
Filipino male organ in full erection without producing any genital injury. The
physical evidence belies private complainant's claim of having been deflowered
by accused-appellant on four different occasions. The Office of the Solicitor
General, for its part, contends that the prosecution through the private
complainant proved the guilt of accused-appellant for the crime charged on both
counts.
Page 83 of 158

The contention of accused-appellant does not persuade the Court. The private
complainant testified that since 1996, when she was only eleven years old, until
1998, for two times a week, accused-appellant used to place himself on top of
her and despite her tenacious resistance, touched her arms, legs and sex organ
and inserted his finger and penis into her vagina. In the process, he ejaculated.
Accused-appellant threatened to kill her if she divulged to anyone what he did to
her.20 Although private complainant did not testify that she was raped on
September 15, 1998 and October 22, 1998, nevertheless accused-appellant may
be convicted for two counts of rape, in light of the testimony of private
complainant.
It bears stressing that under the two Informations, the rape incidents are alleged
to have been committed "on or about September 15, 1998" and "on or about
October 22, 1998." The words "on or about" envisage a period, months or even
two or four years before September 15, 1998 or October 22, 1998. The
prosecution may prove that the crime charged was committed on or about
September 15, 1998 and on or about October 22, 1998.
In People vs. Gianan,21 this Court affirmed the conviction of accused-appellant of
five (5) counts of rape, four of which were committed in December 1992 (two
counts) and one each in March and April, 1993 and in November, 1995 and one
count of acts of lasciviousness committed in December 1992, on a criminal
complaint for multiple rape, viz:
"That sometime in November 1995, and some occasions prior and/or subsequent
thereto, in the Municipality of Dasmarias, Province of Cavite, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd
designs, taking advantage of his superior strength over the person of his own
twelve (12) year old daughter, and by means of force, violence and intimidation,
did, then and there, willfully, unlawfully and feloniously, have repeated carnal
knowledge of Myra M. Gianan, against her will and consent, to her damage and
prejudice."22
On the contention of accused-appellant in said case that his conviction for rape in
December 1992 was so remote from the date (November 1995) alleged in the
Information, so that the latter could no longer be considered as being "as near to
the actual date at which the offense was committed" as provided under Section
11, Rule 110 of the Rules on Criminal Procedure, as amended, this Court held:
"Accused-appellant nevertheless argues that his conviction for rape in December
1992 is so remote from the date (November 1995) alleged in the information, so
that the latter could no longer be considered as being "as near to the actual date
at which the offense was committed" as provided under Rule 110, 11.
Page 84 of 158

This contention is also untenable. In People v. Garcia, this Court upheld a

conviction for ten counts of rape based on an information which alleged that the
accused committed multiple rape "from November 1990 up to July 21, 1994," a
time difference of almost four years which is longer than that involved in the case
at bar. In any case, as earlier stated, accused-appellant's failure to raise a timely
objection based on this ground constitutes a waiver of his right to object." 23
Moreover, when the private complainant testified on how accused-appellant
defiled her two times a week from 1996 until 1998, accused-appellant raised nary
a whimper of protest. Accused-appellant even rigorously cross-examined the
private complainant on her testimony on direct examination. The presentation by
the prosecution, without objection on the part of accused-appellant, of evidence
of rape committed two times a week from 1996 until 1998 (which includes
September 15, 1998 and October 22, 1998) to prove the charges lodged against
him constituted a waiver by accused-appellant of his right to object to any
perceived infirmity in, and in the amendment of, the aforesaid Informations to
conform to the evidence adduced by the prosecution.
The barefaced fact that private complainant remained a virgin up to 1998 does
not preclude her having been repeatedly sexually abused by accused-appellant.
The private complainant being of tender age, it is possible that the penetration of
the male organ went only as deep as her labia. Whether or not the hymen of
private complainant was still intact has no substantial bearing on accusedappellant's commission of the crime. 24 Even, the slightest penetration of the labia
by the male organ or the mere entry of the penis into the aperture constitutes
consummated rape. It is sufficient that there be entrance of the male organ within
the labia of the pudendum.25 In People vs. Baculi, cited in People vs. Gabayron,26
we held that there could be a finding of rape even if despite repeated intercourse
over a period of four years, the complainant still retained an intact hymen without
injury. In these cases, the private complainant testified that the penis of accusedappellant gained entry into her vagina:
"Fiscal Carisma
(continuing)
After your underwear was removed by the accused, what happened next?
Witness:
He laid himself on top of me, sir.
Q

What did he do while he was on top of you?

He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)
Page 85 of 158

Q
Can you please describe more specifically what is this and I quote
"Pinatong nya yong ano nya" and where did he place it?
A

His organ, sir.

Where did he place his organ?

In my organ, sir. (sa ari ko po.)

At this very juncture madam witness, what did you feel?

A
I felt pain, sir, and I also felt that there was a sticky substance that was
coming out, sir."27 (Emphasis supplied)
We agree with accused-appellant that he is guilty only of two counts of simple
rape, instead of qualified rape. The evidence on record shows that accusedappellant is the common-law husband of Rose, the mother of private
complainant. The private complainant, as of October 1998, was still 13 years old,
and under Article 335 as amended by Republic Act 7659, the minority of the
private complainant, concurring with the fact that accused-appellant is the
common-law husband of the victim's mother, is a special qualifying circumstance
warranting the imposition of the death penalty.28 However, said circumstance was
not alleged in the Informations as required by Section 8, Rule 110 of the Revised
Rules on Criminal Procedure which was given retroactive effect by this Court
because it is favorable to the accused. 29 Hence, even if the prosecution proved
the special qualifying circumstance of minority of private complainant and
relationship, the accused-appellant being the common-law husband of her
mother, accused-appellant is guilty only of simple rape. Under the given law, the
penalty for simple rape is reclusion perpetua. Conformably with current
jurisprudence, accused-appellant is liable to private complainant for civil
indemnity in the amount of P50,000.00 and moral damages in the amount of
P50,000.00 for each count of rape, or a total of P200,000.00.
Re: Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime
committed on or about August 1998 and November 5, 1998)
Accused-appellant avers that (a) the Information in Criminal Case No. 99171390 is defective because the date of the offense "on or about August 1998"
alleged therein is too indefinite, in violation of Rule 110, Section 11 of the Revised
Rules on Criminal Procedure which reads:
"Sec. 11. Date of commission of the offense. It is not necessary to state in the
complaint or information the precise date the offense was committed except
when it is a material ingredient of the offense. The offense may be alleged to
Page 86 of 158

have been committed on a date as near as possible to the actual date of its
commission. (11a)"30
Accused-appellant further asserts that the prosecution failed to prove that he
raped private complainant in August 1998. Hence, he argues, he should be
acquitted of said charge. The Office of the Solicitor General, for its part, argued
that the date "on or about August 1998" is sufficiently definite. After all, the date
of the commission of the crime of rape is not an essential element of the crime.
The prosecution adduced conclusive proof that accused-appellant raped private
complainant on or about August 1998, as gleaned from her testimony during the
trial.
The Court does not agree with accused-appellant. It bears stressing that the
precise date of the commission of the crime of rape is not an essential element of
the crime. Failure to specify the exact date when the rape was committed does
not render the Information defective. The reason for this is that the gravamen of
the crime of rape is carnal knowledge of the private complainant under any of the
circumstances enumerated under Article 335 of the Revised Penal Code, as
amended. Significantly, accused-appellant did not even bother to file a motion for
a bill of particulars under Rule 116, Section 9 of the Revised Rules on Criminal
Procedure before he was arraigned. Indeed, accused-appellant was duly
arraigned under the Information and entered a plea of not guilty to the charge
without any plaint on the sufficiency of the Information. Accused-appellant even
adduced his evidence after the prosecution had rested its case. It was only on
appeal to this Court that accused-appellant questioned for the first time the
sufficiency of the Information filed against him. It is now too late in the day for him
to do so. Moreover, in People vs. Salalima,31 this Court held that:
"Failure to specify the exact dates or time when the rapes occurred does not ipso
facto make the information defective on its face. The reason is obvious. The
precise date or time when the victim was raped is not an element of the offense.
The gravamen of the crime is the fact of carnal knowledge under any of the
circumstances enumerated under Article 335 of the Revised Penal Code. As long
as it is alleged that the offense was committed at any time as near to the actual
date when the offense was committed an information is sufficient. In previous
cases, we ruled that allegations that rapes were committed "before and until
October 15, 1994," "sometime in the year 1991 and the days thereafter,"
"sometime in November 1995 and some occasions prior and/or subsequent
thereto" and "on or about and sometime in the year 1988" constitute sufficient
compliance with Section 11, Rule 110 of the Revised Rules on Criminal
Procedure.
In this case, although the indictments did not state with particularity the dates
when the sexual assaults took place, we believe that the allegations therein that
Page 87 of 158

the acts were committed "sometime during the month of March 1996 or
thereabout," "sometime during the month of April 1996 or thereabout," "sometime
during the month of May 1996 or thereabout" substantially apprised appellant of
the crimes he was charged with since all the elements of rape were stated in the
informations. As such, appellant cannot complain that he was deprived of the
right to be informed of the nature of the cases filed against him. Accordingly,
appellant's assertion that he was deprived of the opportunity to prepare for his
defense has no leg to stand on."
The prosecution proved through the testimony of private complainant that
accused-appellant raped her two times a week in 1998. As in Criminal Cases
Nos. 99-171392 and 99-171393, accused-appellant is guilty only of simple rape.
As to the crime of rape subject of Criminal Case No. 99-171391, accusedappellant avers that he is not criminally liable of rape. We agree with accusedappellant. The collective testimony of private complainant and her younger
brother Rossel was that on November 5, 1998, accused-appellant who was
wearing a pair of short pants but naked from waist up, entered the bedroom of
private complainant, went on top of her, held her hands, removed her panty,
mashed her breasts and touched her sex organ. However, accused-appellant
saw Rossel peeping through the door and dismounted. He berated Rossel for
peeping and ordered him to go back to his room and to sleep. Accused-appellant
then left the room of the private complainant. The testimony of private
complainant on direct examination reads:
"Fiscal Carisma:
Q

In between 1996 and August 1997?

Yes, sir, sometimes two (2) times a week.

Q
In November of 1998, do you recall of any unusual experience that
happened to you again?
A

Yes, sir.

What was this unusual experience of yours?

He laid himself on top of me, sir.

You said "he" whom are you referring to?

Freedie Lizada Jakosalem, sir.

The same person you pointed to earlier?

Page 88 of 158

Yes, sir.

Q
You said he placed himself on top of you in November, 1998, what did he
do while he was on top of you?
A
sir.

He's smashing my breast and he was also touching my arms and my legs,

What else if any madam witness?

He was also touching my sex organ, sir.

What else, if any?

Atty. Estorco:
May we take note of the same objection your honor, the prosecution
Court:
Same ruling. Let the complainant continue considering that she is crying and still
young.
Witness:
None else, sir.
Fiscal Carisma:
With what part of his body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is
Court:
May answer.
Fiscal Carisma:
I will re-propound the question, your honor.
You said that he touched your sex organ, will you tell the court with what part of
his body, did he touch your sex organ?
Witness:
With his hands, sir.
Page 89 of 158

Q
What about after November 1998 was this the last incident, this
unusual thing that you experienced from the hands of the accused was this that
last time, the one you narrated in November 1998?
A

Yes, sir."32

On cross-examination, the private complainant testified, thus:

"Atty. Balaba:
Q

Who was that somebody who entered the room?

My stepfather Freedie Lizada, sir.

He was fully dressed at that time, during the time, is that correct?

Yes, sir, he was dressed then, sir.

And he had his pants on, is that correct?

He was wearing a short pants, sir.

Was it a T-shirt that he had, at that time or a polo shirt?

He was not wearing any shirt then, sir, he was naked.

Q
When you realized that somebody was entering the room were you not
afraid?
A

No, sir, I was not afraid.

Q
What happened when you realized that somebody entered the room, and
the one who entered was your stepfather, Freedie Lizada?
A
I did not mind him entering the room because I know that my brother was
around but suddenly I felt that somebody was holding me.
Q

He was holding you, where were you when he held you?

I was in the bed, sir, lying down.

You were lying down?

Yes, sir.

What part of the body did the accused Freedie Lizada touched you?

My two arms, my legs and my breast, sir.

Page 90 of 158

Q
Do you mean to tell us that he was holding your two arms and at the
same time your legs, is that what you are trying to tell us?
A

He held me first in my arms and then my legs, sir.

He held you first by your arms, is that what you are trying to tell us?

Fiscal Carisma:
Already answered your honor, he held the arms and then the legs.
Court:
Already answered.
Atty. Balaba:
Q

Your honor, I am just trying to

Court:
Proceed.
Atty. Balaba:
Q

He held your arms with his two hands?

Only with one hand, sir.

Which hand were you touched?

I do not know which hand, sir.

Which arm of yours was held by Freedie Lizada?

I could not recall, sir.

Which side of your body was Freedie Lizada at that time?

I cannot recall, sir.

What was the position of Freedie Lizada when he held your arms?

He was sitting on our bed, sir.

Which side of your bed was Freedie Lizada sitting on?

I do not know, sir. I cannot recall.

Atty. Balaba:
Page 91 of 158

Can we take a recess your honor?

Court:
How long will it take you to finish your cross?
Atty. Balaba:
We will confront the witness with so many things your honor.
Court:
Yes, that's why I am asking you how long will it take you to finish your cross?
Atty. Balaba:
About another hour, sir.
Court:
So we will be finished by 11:15, proceed.
Atty. Balaba:
You cannot also remember which leg was held by Freedie Lizada?
A

I cannot recall, sir.

When this happened, did you not shout for help?

A
I did not ask for help, I was motioning to resist him, so that he would go
out, sir. I was struggling to free myself from him, sir.
Q

And you were not able to extricate yourself from him?

I was not able to extricate myself, sir.

Q
You were struggling with one arm of Lizada holding your arm, and the
other hand was holding your leg, is that what you are trying to tell us?
A

No, sir, it's not like that.

Q
Could you tell us, what happened, you did not shout for help and you
were trying to extricate yourself, what happened?
A

He suddenly went out of the room, sir.

Now, he went
Page 92 of 158

Court:
You did not shout during that time?
A

No, your honor."33

Rossel, the nine-year old brother of the private complainant corroborated in part
his sister's testimony. He testified on direct examination, thus:
"Fiscal Carisma: (continuing)
Q
Now, on November 2, 1998 do you recall where you were at about 3:00
o'clock?
A

I was outside our house, sir.

Q
Where was your house again, Mr. witness, at that time? Where was your
house at that date, time and place? At that date and time?
A

1252 Jose Abad Santos, Tondo, Manila, sir.

Court:
Q

The same address?

A.

Yes, sir.

Fiscal Carisma:
Q
On that date, time and place, do your recall where your sister Anna Lea
Orillosa was?
A

Yes, sir.

Where was she?

She was sleeping, sir.

Q
Now, on that date, time and place you said you were outside your house,
did you stay the whole afternoon outside your house?
A

No, sir.

Where did you go next?

Inside, sir.

For what purpose did you get inside your house?

Page 93 of 158

Because I was thirsty, sir.

So you went to the fridge to get some water?

Yes, sir.

And what happened as you went inside your house to get some water?

A
I saw my stepfather removing the panty of my sister and he touched her
and then he laid on top of her, sir.
Q

Do you see your stepfather inside the courtroom now?

Yes, sir.

Will you point to him?

He is the one, sir.

Court Interpreter:
Witness pointing to a male person who when asked answers to the name
Freedie Lizada.
Fiscal Carisma:
Q
This thing that your father was that your stepfather did to your elder
sister, did you see this before or after you went to the fridge to get some water?
A

I already got water then, sir.

Q
What did you do as you saw this thing being done by your stepfather to
your elder sister?
A

I was just looking at them when he saw me, sir.

Who, you saw who? You are referring to the accused Freedie Lizada?

Yes, sir.

So, what did you do as you were seen by your stepfather?

A
He scolded me, he shouted at me, he told me something and after that he
went to the other room and slept, sir."34
Rossel testified on cross-examination, thus:
"Q

So you got thirsty, is that correct, and went inside the house?
Page 94 of 158

Yes, sir.

And you took a glass of water from the refrigerator?

Yes, sir.

Q
And it was at this time that you saw the accused Freedie Lizada touching
your sister?
A

Yes, sir.

Where was this refrigerator located?

In front of the room where my sister sleeps, sir.

So the door of your sister's room was open?

Yes, sir.

Q
And okay, you said your sister was sleeping. What was the position of
your sister when you said the accused removed her panty?
A

She was lying straight, but she was resisting, sir.

Were you noticed by your sister at that time?

No, sir.

And your sister did not call for help at that time?

No, sir.

Q
And all this time you saw the accused doing this, from the refrigerator
where you were taking a glass of water?
A

Yes, sir.

Did you not say something to the accused?

No, sir, I was just looking.

Q
So your sister was lying down when the accused removed her panty, is
that what you are trying to tell us?
A

Yes, sir.

Q
And where was the and the accused saw you when he was removing
the panty of your sister?
Page 95 of 158

A
Not yet, sir, but after a while he looked at the refrigerator because he
might be thirsty.
Q
So you said the accused was touching your sister. What part of her
body was touched by the accused?
A

Here, sir.

Court Interpreter:
Witness pointing at the lower portion of the body.
Atty. Balaba:
Q

You saw with what hand was the accused touching your sister?

Yes, sir.

What hand was he touching your sister?

This hand, sir.

Court Interpreter:
Witness raising his right hand.
Atty. Balaba:
Q
And which part of your sister's body was the accused touching with his
right hand? Your sister's body was the accused touching with his right hand?
A

Her right leg, sir.

How about his left hand, what was the accused doing with his left hand?

Removing her panty, sir.

Removing her?

Panty, sir.

Q
Which hand of your sister was being removed with the left hand of the
accused?
Court:
Which?
Atty. Balaba:
Page 96 of 158

Which hand, which hand?

Fiscal Carisma:
The question is vague, your honor.
Atty. Balaba:
Because he said that removing the hand
Fiscal Carisma:
He said removing the panty.
Atty. Balaba:
Is that panty? I'm sorry.
Q
So, the accused was touching with his right hand the left thigh of your
sister
Fiscal Carisma:
The right thigh.
Atty. Balaba:
Q
Rather the right thigh of your sister and with his left hand removing the
panty, is that what you are telling to tell us?
A

Yes, sir.

Q
And your sister all the time was trying to was struggling to get free, is
that not correct?
A

Yes, sir, she was resisting. (witness demonstrating)

She was struggling was the accused able to remove the panty?

Yes, sir.

Q
hand?
A

And all the time you were there looking with the glass of water in your
Yes, sir."35

In light of the evidence of the prosecution, there was no introduction of the penis
of accused-appellant into the aperture or within the pudendum of the vagina of
Page 97 of 158

private complainant. Hence, accused-appellant is not criminally liable for

consummated rape.36
The issue that now comes to fore is whether or not accused-appellant is guilty of
consummated acts of lasciviousness defined in Article 336 of the Revised Penal
Code or attempted rape under Article 335 of the said Code, as amended in
relation to the last paragraph of Article 6 of the Revised Penal Code. In light of
the evidence on record, we believe that accused-appellant is guilty of attempted
rape and not of acts of lasciviousness.
Article 336 of the Revised Penal Code reads:
"Art. 336. Acts of Lasciviousness. Any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the circumstances
mentioned in the preceding article, shall be punished by prision correccional."37
For an accused to be convicted of acts of lasciviousness, the prosecution is
burdened to prove the confluence of the following essential elements:
"1. That the offender commits any act of lasciviousness or lewdness.
2. That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise unconscious; or
c. When the offended party is under 12 years of age."38
"Lewd" is defined as obscene, lustful, indecent, lecherous. It signifies that form of
immorality which has relation to moral impurity; or that which is carried on a
wanton manner.39
The last paragraph of Article 6 of the Revised Penal Code reads:
"There is an attempt when the offender commences the commission of a felony
directly by overt acts, and does not perform all the acts of execution which should
produce the felony by reason of some cause or accident other than his own
spontaneous desistance."
The essential elements of an attempted felony are as follows:
"1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;
3. The offender's act be not stopped by his own spontaneous desistance;
Page 98 of 158

4. The non-performance of all acts of execution was due to cause or accident

other than his spontaneous desistance."40
The first requisite of an attempted felony consists of two elements, namely:
"(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to be
committed."41
An overt or external act is defined as some physical activity or deed, indicating
the intention to commit a particular crime, more than a mere planning or
preparation, which if carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by the spontaneous
desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense.42 The raison d'etre for the law requiring a direct overt act is that, in a
majority of cases, the conduct of the accused consisting merely of acts of
preparation has never ceased to be equivocal; and this is necessarily so,
irrespective of his declared intent. It is that quality of being equivocal that must be
lacking before the act becomes one which may be said to be a commencement
of the commission of the crime, or an overt act or before any fragment of the
crime itself has been committed, and this is so for the reason that so long as the
equivocal quality remains, no one can say with certainty what the intent of the
accused is.43 It is necessary that the overt act should have been the ultimate step
towards the consummation of the design. It is sufficient if it was the "first or some
subsequent step in a direct movement towards the commission of the offense
after the preparations are made." 44 The act done need not constitute the last
proximate one for completion. It is necessary, however, that the attempt must
have a causal relation to the intended crime. 45 In the words of Viada, the overt
acts must have an immediate and necessary relation to the offense. 46
Acts constitutive of an attempt to commit a felony should be distinguished from
preparatory acts which consist of devising means or measures necessary for
accomplishment of a desired object or end.47 One perpetrating preparatory acts is
not guilty of an attempt to commit a felony. However, if the preparatory acts
constitute a consummated felony under the law, the malefactor is guilty of such
consummated offense.48 The Supreme Court of Spain, in its decision of March
21, 1892, declared that for overt acts to constitute an attempted offense, it is
necessary that their objective be known and established or such that acts be of
such nature that they themselves should obviously disclose the criminal objective
necessarily intended, said objective and finality to serve as ground for
designation of the offense.49

Page 99 of 158

There is persuasive authority that in offenses not consummated as the material

damage is wanting, the nature of the action intended (accion fin) cannot exactly
be ascertained but the same must be inferred from the nature of the acts
executed (accion medio).50 Hence, it is necessary that the acts of the accused
must be such that, by their nature, by the facts to which they are related, by
circumstances of the persons performing the same, and b the things connected
therewith, that they are aimed at the consummation of the offense. This Court
emphasized in People vs. Lamahang51 that:
"The relation existing between the facts submitted for appreciation and the
offense which said facts are supposed to produce must be direct; the intention
must be ascertained from the facts and therefore it is necessary, in order to avoid
regrettable instances of injustice, that the mind be able to cause a particular
injury."52
If the malefactor does not perform all the acts of execution by reason of his
spontaneous desistance, he is not guilty of an attempted felony.53 The law does
not punish him for his attempt to commit a felony.54 The rationale of the law, as
explained by Viada:
"La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que
castigarlo. Si el autor de la tentativa, despues de haber comenzado a ejecutar el
delito por actos exteriores, se detiene, por un sentimiento libre y espontaneo, en
el borde del abismo, salvo esta. Es un llamamiento al remordimiento, a la
conciencia, una gracia un perdon que concede la Ley al arrepentimiento
voluntario."55
As aptly elaborated on by Wharton:
"First, the character of an attempt is lost when its execution is voluntarily
abandoned. There is no conceivable overt act to which the abandoned purpose
could be attached. Secondly, the policy of the law requires that the offender, so
long as he is capable of arresting an evil plan, should be encouraged to do so, by
saving him harmless in case of such retreat before it is possible for any evil
consequences to ensue. Neither society, nor any private person, has been
injured by his act. There is no damage, therefore, to redress. To punish him after
retreat and abandonment would be to destroy the motive for retreat and
abandonment."56
It must be borne in mind, however, that the spontaneous desistance of a
malefactor exempts him from criminal liability for the intended crime but it does
not exempt him from the crime committed by him before his desistance. 57
In light of the facts established by the prosecution, we believe that accusedappellant intended to have carnal knowledge of private complainant. The overt
Page 100 of 158

acts of accused-appellant proven by the prosecution were not mere preparatory

acts. By the series of his overt acts, accused-appellant had commenced the
execution of rape which, if not for his spontaneous desistance, will ripen into the
crime of rape. Although accused-appellant desisted from performing all the acts
of execution however his desistance was not spontaneous as he was impelled to
do so only because of the sudden and unexpected arrival of Rossel. Hence,
accused-appellant is guilty only of attempted rape. 58 In a case of similar factual
backdrop as this case, we held:
"Applying the foregoing jurisprudence and taking into account Article 6 of the
Revised Penal Code, the appellant can only be convicted of attempted rape. He
commenced the commission of rape by removing his clothes, undressing and
kissing his victim and lying on top of her. However, he failed to perform all the
acts of execution which should produce the crime of rape by reason of a cause
other than his own spontaneous desistance, i.e., by the timely arrival of the
victim's brother. Thus, his penis merely touched Mary Joy's private organ.
Accordingly, as the crime committed by the appellant is attempted rape, the
penalty to be imposed on him should be an indeterminate prison term of six (6)
years of prision correccional as minimum to twelve (12) years of prision mayor as
maximum."
The penalty for attempted rape is prision mayor which is two degrees lower than
reclusion perpetua.59 Accused-appellant should be meted an indeterminate
penalty the minimum of which should be taken from prision correccional which
has a range of from six months and one day to six years and the maximum of
which shall be taken from the medium period of prision mayor which has a range
of from eight years and one day to ten years, without any modifying
circumstance. Accused-appellant is also liable to private complainant for moral
damages in the amount of P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of
Manila, Branch 54, is SET ASIDE. Another judgment is hereby rendered as
follows:
1. In Criminal Case No. 99-171390, accused-appellant is hereby found guilty
beyond reasonable doubt of simple rape under Article 335 of the Revised Penal
Code as amended and is hereby meted the penalty of reclusion perpetua.
Accused-appellant is also hereby ordered to pay private complainant Analia
Orillosa the amounts of P50,000.00 by way of civil indemnity and P50,000.00 by
way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is hereby found guilty of
attempted rape under Article 335 of the Revised Penal Code as amended in
relation to Article 6 of the said Code and is hereby meted an indeterminate
Page 101 of 158

penalty of from six years of prision correccional in its maximum period, as

minimum to ten years of prision mayor in its medium period, as maximum.
Accused-appellant is hereby ordered to pay private complainant Analia Orillosa
the amount of P25,000.00 by way of moral damages; and,
3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is
hereby found guilty beyond reasonable doubt of two counts of simple rape,
defined in Article 335 of the Revised Penal Code as amended and is hereby
meted the penalty of reclusion perpetua for each count. Accused-appellant is
hereby ordered to pay to private complainant Analia Orillosa the amount of
P50,000.00 by way of civil indemnity and the amount of P50,000.00 by way of
moral damages for each count, or a total amount of P200,000.00.
SO ORDERED.
G.R. No. 149725

October 23, 2003

OSCAR MAGNO, petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES, respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure for the reversal of the decision1 of the Court of Appeals in CA-G.R. CR
No. 22399 reversing the decision2 of the Regional Trial Court of Ifugao, Branch
14, in Criminal Case No. 808.
The Indictment
The petitioner was charged with homicide in an Information, the accusatory
portion of which reads:
That on or about the 4th day of June, 1992, in the Municipality of Lagawe, Ifugao,
and within the jurisdiction of the Honorable Court, the above-named accused with
intent to kill, and without any justifiable reason whatsoever DID then and there
willfully, unlawfully and feloniously inflict physical injuries on the different parts of
the body of Dov Lourenz Dunuan which directly caused the latters death.
CONTRARY TO LAW.3
On arraignment, the petitioner, assisted by counsel, pleaded not guilty.
The Case for the Prosecution
Page 102 of 158

As culled by the trial court, the case stemmed from the following facts:
In the early evening of June 4, 1992, Buss, Gilbert Baccay and Herman
Dinamling were drinking liquor (beer) inside the backroom of the restaurant
owned and managed by Emerita Danao, known then as the Top Side Restaurant.
This restaurant faces the concrete house of the accused and their distance is
more or less 10 meters with the national highway separating both buildings.
There were other customers also drinking. While the liquor binge of the three was
on-going, Dov arrived and joined them as he was invited. Moments later, Dov
went to the juke box and played a tune and continued taking in beer just as the
rest were doing. After consuming the bottle, he informed the group that he will go
to the other side (referring to the house of the accused which has a store in it),
but he was followed by Gilbert who stayed up to the main door of the restaurant
Buss and Herman Dinamling were left behind drinking. Realizing that Gilbert was
staying outside long, Buss told Herman to stay put as he was going out to see
the two. Reaching outside, he saw Gilbert standing just near the Platinum Office
(an insurance office also located in the house of the accused) and near him was
Dov.
Buss decided to join the two who were still in front of the house of the accused.
Gilbert then intimated to Dov that Buss be his companion to which Dov agreed.
So Gilbert returned back to the restaurant while Dov and Buss entered the store
of Mr. Magno. Upon entering, Buss saw the accused at the counter, the maid was
situated at the kitchen. Meanwhile, Dov sat near a table while Buss went to the
counter to order for some soft drinks (cola-cola). Mr. Magno did not answer but at
this moment, Olen (who is actually Lorraine Magno), daughter of the accused,
came out and told Buss that their soft drinks were consumed but Buss retorted
that earlier, he bought some soft drinks and how come said drinks are now not
available. With the exchange of words between Olen and Buss, accused eyed
sharply the two intoxicated youngsters. Buss then urged and tried to pull Dov to
get out but the latter refused because the former saw the accused getting angry.
Dov persisted in staying and in fact removed Buss hold on him. By this time,
feeling the necessity of urination, Buss went outside to relieve himself. After that,
he turned to call Dov but when he was in between the house of Cora Martin and
that of the house of the accused as both houses were very adjacent and likewise
both facing the Top Side Restaurant, he saw the accused strangle Dov. Aside
from this, he saw further Mr. Magno landing more blows on Dovs chest and
twisted the latters hand. While this was taking place, he saw Dov with eyes and
mouth opened due to the strangling and the boxes thrown because he was four
meters more or less from the place where accused inflicted the injuries which
was beside the accuseds ISUZU cargo truck parked in front of the same house
on a sloping cemented portion.
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Shocked by what he saw, he ran away proceeding to the nearby Top Side
Restaurant, then went to the direction of the Don Bosco High School which was
also very near and as he was about to proceed to Lagawe Proper (a nearby
barangay), he thought his companions left the restaurant, so he returned back as
fast as he could, opened the door, sat down and leaned his head on a table. As
he was tongue tied, he did not tell anyone what he saw but at this very instance,
shouts were heard and the voice of Emerita Danao yelling "Its Dov, its Dov , its
Dov," was in particular the voice he heard.
Hearing this, Buss then went out and saw his companions Herman and Gilbert
carrying the body of Dov just near the store of the accused. He noticed further
that the parked truck of the same accused was nowhere to be seen, so he
helped his two friends hold the body of Dov and saw blood oozing from the
latters nose and mouth (Exhibits "A," "A-1," "A-2").
Meanwhile, Gilbert Baccay, after leaving Buss and Dov at the frontage of
accuseds residence, returned to the restaurant to join Herman Dinamling in the
drinking and while telling stories and listening to the music, they suddenly heard
a shout outside, and Gilbert saw Mrs. Emerita Danao crying. He immediately
went out of the restaurant and saw his friend Dov sprawled on the cemented
portion of the frontage of Magnos house just beside the paved national road.
Hurriedly, he went to Dov, turned and took hold of him and asked "Dov, what
happened to you?" but the latter did not move and answer. He saw Dovs eyes
"blankly open and blood was oozing from his nose. Then Herman Dinamling
arrived but Gilbert still asked Dov "what happened," but the little son of Emerita
Danao who was present pointed to the accused, who by then just arrived still
driving the big vehicle, as ". That one who did it to him." The accused next told
them "to look for a tricycle" to bring Dov to the hospital. (Exhibit "K" and submarkings). After saying this, accused drove said truck and proceeded towards
the direction of the Don Bosco Teachers Quarters passing the Top Side
Restaurant. Mrs. Emerita Danao by then called a tricycle to rush Dov to the
hospital. Buss and Gilbert rushed to inform Dovs parents what transpired.
Upon the request of the relatives of the victim, coursed through official channels
(Exhibits "B," "C," "D," and "E"), Dr. Ruben Angobung, Medico-Legal Officer, NBI,
Ilagan, Isabela, conducted an autopsy or exhumation on the body of Dov.
(Exhibits "F," "G," "H" and its sub-markings, "I," "J"). Hereunder are his findings
and the extent of the injuries, to wit:
PHYSICAL INJURIES:
CONTUSED ABRASIONS:
1. 3.0 x 2.0 cms., cheek, left aspect.
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2. Multi-linear; irregularly distributed in a horizontal fashion, covering an area of

5.0 x 1.0 cm., located more at the anterior aspect of the neck tapering irregularly
on the left side.
3. Confluent; measuring 10.0 x 7.5 cms., located at the anterior upper-half, chest,
between the anterior fold and the nipple, right.
4. 1.0 x 1.0 cm., located at the anterior chest wall, midline.
5. 2.5 x 1.5 cms., anterior upper-half, chest left side.
6. 1.5 x 0.3 cm., posterior aspect, upper midline thorax;
7. 4.5 x 1.0 cm., posterior aspect, medial to inner left scapula margin, left.
8. 22.0 x 3.0 cms., postero-lateral aspect, forearm, left.
CONTUSIONS:
1. 10.0 x 1.0 cm., postero-lateral aspect, external ear, right.
2. 10.0 x 4.5 cms., posterior-proximal third, arm, left.
3. 4.0 x 1.0 cm., anterior wrist, right.
HEMATOMA:
1. Subcutaneous and intramuscular, moderate in amount, anterior chest, right
side above 3rd, 4th and 5th anterior ribs.
2. Subcutaneous and intramuscular, severe, located at the anterior chest, above
2nd and 3rd anterior ribs, left.
FRACTURED:
1. Second anterior rib, complete along mid-clavicular line, left.
2. Third anterior rib, complete at costo-chondral junction, left.
INTERNAL ORGAN INVOLVEMENT:
1. Lungs, left contused at its anterior aspect, upper and lower lobes.
2. Spleen, superficial ruptures with ramifications at its dome.
3. Brain and other visceral organs, pale, but otherwise unremarkable.
HEMORRHAGE:
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Intra-thoracic, severe; Intra-peritoneal, minimal.

Stomach, contained small amount of partially digested rice and other food
particles.
CAUSE OF DEATH:
Hemorrhagic shock; Traumatic. (Exhibit "G")
Dovs father Manuel Dunuan, Jr., claimed that his youngest son died on June 4,
1992 and Funeraria Gambito, Bayombong, Nueva Vizcaya was contacted for the
funeral services. In the process, the family paid P30,000.00 covered by a receipt
issued by said funeral parlor (Exhibit "L"). During the wake and for the duration of
5 days, one pig valued at P4,000.00 was butchered for a day except the 3rd and
5th day where additional pigs of more or less the same value were likewise
butchered for the many visitors and mourners. For the duration of the novena,
one cow worth P10,000.00 and one pig worth P4,000.00 were butchered for the
people. One sack of rice valued at P600.00 per day was consumed for the
duration of five days.
All the members of the family suffered heavily and they experienced mental
anguish, sadness and tortured thoughts. The loss of Dov, being the youngest and
closest to all affected Dovs elder sister Pamela such that she was referred and
confined at the Makati Medical Center for psychiatric care and the family spent
P60,000.00 plus another P20,000.00 for the food, travel and other related
expenses incurred while Pamela was confined. The other sister had to drop all
her subjects at the University of Baguio, Baguio City, because she cant accept
the loss of her little brother.
His wife, who has a fondness to Dov had to take a leave of absence from her
work. They have now recovered from the loss of her son but they still suffer
whenever Dov is remembered.4
The Case for the Petitioner
The case for the petitioner as culled from the evidence is as follows:
The residence of the accused is a three-storey house. The first floor could not be
seen on the street, but the second floor is on level with the national road (Rizal
Avenue). The second floor is where the store (sari-sari and snack house) is
located and also where the Platinum Office is stationed. The third floor is where
the family of the accused used as their residence.

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On June 4, 1992, Jun Mar Danao was then 10 years old; Nerry Ann Bravo a
niece of Mr. and Mrs. Magno, was also ten years old and Lorraine Magno,
daughter of the accused, was then 12 years old.
Between 6:00 to 7:00 p.m. of June 4, 1992, the store of the accused was opened
and Lorraine Magno and her cousin Nerry Ann Bravo together with the accused
were inside the store. Lorraine and Nerry were sitting just behind the counter and
attending to the store for any customer. The accused was reading a newspaper
at the counter. Two persons entered the store and they were Dov and Buss who
were drunk because of the smell of liquor and their swaying movements. They
seated themselves beside one of the tables, and they asked for soft drinks (coke)
from Lorraine but she told them that their soft drinks were consumed. Buss stood
up and called Dov "come now" but Dov answered "you go," so Buss left Dov. Dov
stood up and went to the counter and looked at the accused who was near the
counter reading a newspaper. The accused advised Dov in a soft tone to go
home because he was drunk. Dov went out. Mr. Magno ordered Nerry and
Lorraine to close the store but it was the latter who closed the accordion door
and a space of two feet was left opened because Dov was forcing the door to be
opened for him to tell something to the accused. Dov was telling Lorraine "Can I
talk to your papa?" to which Lorraine retorted, "What will you talk about?" Dov
turned to leave, so Lorraine shut the accordion door.
Moments later, they heard banging sounds particularly the sound of stones
thrown at the accordion door. The accused stood up as he was surprised by the
stoning and opened the same door. The accused went out looking for anybody
who stoned. He went to the street while Lorraine followed his father but she
stayed just at the accordion door while Nerry Ann Bravo was at her back. They
saw nobody on the street except the accused. Then immediately accused
passed by the front of the Isuzu truck parked in front of the store of the accused
and got to the drivers seat, switched on the light, started the engine and
proceeded to the plaza turning in the right direction. Before the accused drove
away, Lorraine noticed a boy under the truck "crawling towards her" so she
screamed to her father to stop the truck but her father did not hear and sped off,
leaving this boy in the same spot where the truck was parked. Lorraine went near
the boy and noticed him to be Dov Dunuan, as if he was sleeping and not
moving. Nerry Ann Bravo saw that the person was ran over by the last wheel of
the truck. Lorraine ran to the Topside Restaurant to call for help and she met
Emerita Danao on the steps. The latter followed Lorraine and both of them went
to the body of Dov and Emerita Danao was crying. Mrs. Danao then lifted the
head of the victim and rested it again on the ground, while she was looking for a
tricycle to rush Dov to the hospital. A few seconds, the accused riding on the
same truck arrived and appeared surprised as to what happened. Lorraine
informed him that Dov was ran over. The accused then told them to look for a
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tricycle and bring him to the hospital while the accused went to report the incident
to the police. Emerita Danao and Emilio Bugatti brought Dov to the hospital but
Mr. Bugatti dropped by at the Provincial Headquarters. (Exhibits "10," "10-A," "11"
and "11-A").
Nerry Ann and Lorraine never saw any strangulation made by the accused on the
victim, nor did they see any mauling or boxing nor a quarrel between the accused
and victim.
At about this time between 6:00 to 7:00 p.m. of June 4, 1992, Jun Mar Danao
was sitting at the step located in front of their house when somebody threw a
stone at the house of the accused, so he went inside and peeped through the
window of their sala and saw the late Dov at the front of the house of the
accused. That Dov was standing there and suddenly he ran under the Isuzu truck
parked just in front of the store of the accused. Just then, the accused and his
daughter Olen or Lorraine came out from the store. The accused went to the
edge of the road as if he was looking for somebody, then went and entered the
drivers seat, started the engine and was going to the plaza. When the truck left,
he saw Dov lying down on the ground where the truck came from, so he ran to
her mother and shouted "Ma, Dov Dov was ran over by the truck."
Mrs. Emerita Danao, by that time was busy doing kitchen chores and at the same
time attending to some customers who were drinking and among them were
Gilbert Baccay, Herman Dinamling, and Dennis Baliti and his group. Not long
after, Buss entered together with Dov both using separate doors all located at the
back of the restaurant but before their entrance, Buss and Dov were playing
throwing stones at each other also at the back of the restaurant.
When Dov entered, she cautioned him to go home because the latter was a little
bit drunk. Buss was likewise observed to be under the influence of liquor. These
two friends proceeded to where Gilbert and Herman were seated and they
ordered beer. The restaurant, pursuant to an Ordinance, was supposed to close
at 7:00 p.m., so she told the group of Buss to leave as soon as they finish their
last order. She continued her work in the kitchen when suddenly she heard her
son shouting "Dov was ran over by a vehicle." After hearing this, she rushed to
the front door and also heard Olen (Lorraine Magno) saying "you come and see
Dov because he was ran over by my daddy, the truck of my Daddy." When she
went down to see Dov, she noticed the parked truck she usually sees in front of
the house of the accused was not there, so she held again the head of Dov and
tried to look for a tricycle. She observed Dov a little bit unconscious and not
talking but she kept looking around for a ride. She returned back to her
restaurant to ask for help. She found Buss lying his head down on a table so she
shook him and told him that "please go to the house of Dov Dunuan and ask the
parents to come." Buss was awakened from his sleep and he was surprised and
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said "Neh," and then ran to the direction of the house of Dov. (Exhibit "M" for the
prosecution which is the Affidavit of Emerita Danao). Just then the truck of the
accused arrived and the latter appeared surprised but he was told by his
daughter, Dov was ran over by the truck. The accused told them to look for a
vehicle to bring Dov to the hospital while he will report to the police.
Finally, she found a tricycle and rushed Dov to the hospital together with some
companions.
SPO3 Agustin Nabanalan was then on duty in the early evening of June 4, 1992.
At around 7:00 p.m., accused Oscar Magno, driving his Isuzu truck, appeared
before the Lagawe PNP Station particularly appearing before him who was then
the assigned investigating officer at that time. The latter inquired from the
accused and he was told that the accused accidentally ran over Dov Lourenz
Dunuan in front of accuseds residence. The accused stayed at the station until
the following morning for security reasons and to surrender himself.
Based from his interview with the accused and from what he gathered at the
crime scene when they later went that evening, he prepared a spot report
(Exhibit "7," "8" and "9") which basically involved a vehicular accident. His
findings were:
"Initial investigation conducted by this Police Station reveals that allegedly the
victim hid himself under the same vehicle which was parked and without the
knowledge of the driver of his presence, he drove the vehicle thus the incident
happened" (Exhibit "7-A")
He has submitted to higher authorities a progress report stating therein that the
relatives of the victim will be responsible in filing the case directly in Court or with
the Provincial Prosecutors Office. But despite this, they continued the
investigation for additional evidence but no one appeared to give his/her
statements. Except for the spot report he prepared, nothing was done until they
were called by Atty. Evelyn Dunuan who interviewed them and thereafter, she
prepared an affidavit and they were given time to correct the same. After they
made the necessary corrections, they had it subscribed before they affixed their
signatures (Exhibit "6" Joint Affidavit of Gabriel Guinanoy, Edmundo Pinkihan,
Agustin Nabanalan and Orlando Bandao).
He likewise stated that what was narrated by the accused was entered in the
police blotter but the entry in the blotter was missing. Not only that, almost onehalf of the pages was missing from the blotter reason for which he could not bring
to Court the excerpt of the blotter or the blotter itself. In fact, the entries covering
the pages from January to November, 1992 do not exist and he cannot explain
how the pages containing the entries were missing. Worse, three months after
Page 109 of 158

the death of Dov, he was relieved and re-assigned at the Patrol Center so that all
the records were left at the office. In one way or the other, the head of their
investigation section SPO3 Clemencio Kimmayong and his fellow investigation
officers were also relieved. SPO3 Orlando Somera was the replacement as Chief
of that section.
SPO1 Orlando Bandao then off-duty in the early evening of June 4, 1992, was at
his house at Poblacion West, Lagawe, Ifugao. It was getting dark and then their
Chief Inspector Lt. Pascua dropped by and he was told that an accident
happened. Both of them proceeded to the Ifugao Provincial Hospital. Reaching
the hospital, they proceeded to the emergency room and heard Dr. Pasigon
declaring that Dov Dunuan was already dead. There were several people inside
the hospital and he just inquired who was the suspect and somebody mentioned
the name of Oscar Magno the accused in this case. Both of them immediately
returned to the PNP Station where they found Oscar Magno already ahead of
them. Mr. Bandao came to know that the accused was already interviewed, so he
took also the chance to conduct his interview. From his interview, herein witness
gathered that accused came to know that Dov was ran over from his daughter
Lorraine Magno, reason for which he surrendered to the police authority. That
this information was given by the accused to herein witness about 20 to 30
minutes from the time the incident occurred.
Mr. Bandao, together with Lt. Pascua, and some policemen proceeded to the
situs of the incident, and while there a certain Emilio Bugatti, a close neighbor of
the accused, approached them and relayed the information that her daughter
Abbigail then 6 years more or less had seen the incident.
Bandao and the group then entered the house of Emilio Bugatti and Abbigail was
interviewed. The latter told them that the late Dov was peeping inside the house
of the accused and when accused came out, Dov hid under the truck which was
parked in front of the same house. The accused went to the street to look for
somebody, then returned back to the truck and started the engine and when the
truck moved away, she saw Dov lying at the cemented parking space fronting the
house.
Bandao still testified that Busa, who was brought to the police station by one of
the sons of Mr. Gallman and a relative of the victim, when he interviewed him,
Buss accordingly related that he had not witnessed the incident.
He averred that he had no hand in the preparation of the spot report. It was
Officer Agustin Nabanalan who prepared said report. No formal or final
investigation was done on the case because they were told by their superiors to
desist as they were informed that the family of the victim and one Atty. Evelyn
Dunuan will be the one to file the case with the proper agency. It was unusual for
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the PNP to desist from further investigation but he was told to stop the conduct of
investigation by his superiors.
He was one of those relieved and the records of the case surrounding the death
of Dov remained intact but when they were re-assigned, whenever he would
request for the documents, nothing is available to him.
Chief Inspector Santiago Dunuan replaced Chief Inspector Pascua and the
former is the uncle of the deceased Dov.
Dr. Ronald Bandonill, Medico-Legal Officer, NBI-CAR, Baguio City, as an expert
witness affirmed some findings of prosecution expert witness Dr. Ruben
Angobung, NBI, Ilagan, Isabela, specifically the findings on contused abrasions
No. 2:
"Multi-linear; irregularly distributed in a horizontal fashion, covering an area of 5.0
x 1.0 cm., located more at the anterior aspect of the neck tapering irregularly on
the left side."
and which the prosecution claims to be evidence of strangulation but herein
witness agreed with Dr. Angobung statements that the above-mentioned injury is
not a strangulation wound, and that the word "multi-linear" is usually found in
victims of vehicular accidents. Examining the exhumation report of Dr. Angobung,
he "didnt see any signs which are attributed to strangulation."
Then in wound No. 3.
"Confluent; measuring 10.0 x 7.5 cm., located at the anterior upper-half chest,
between the anterior fold and the nipple right."
said doctor agrees with Dr. Angobungs claim that such wound on the chest was
not caused or produced by the bare fist of a human being.
Taking the totality of the exhumation findings of Dr. Ruben Angobung, he agrees
with the statements of the former that the wounds/contusions/abrasions listed are
compatible with that of the injuries caused or introduced by a slow moving
vehicle.5
After due proceedings, the trial court rendered judgment convicting the petitioner
of homicide under Article 249 of the Revised Penal Code, the decretal portion of
which reads:
From the foregoing premises, the Court finds that the prosecution was able to
establish the guilt of the accused Oscar Magno beyond reasonable doubt and
accordingly, he is hereby sentenced to suffer the penalty of reclusion temporal.
Applying the Indeterminate Sentence Law, he is sentenced to serve
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imprisonment of from 10 years and one day to 12 years and 6 months of

reclusion temporal in its minimum period.
He is further ordered to pay the heirs of the late Dov Lourenz Dunuan, the
indemnity of P50,000.00. Likewise, he is also ordered to pay said heirs the
following:
A) P117,000.00 representing the actual damages;
B) P50,000.00 moral damages;
C) P15,000.00 exemplary damages; and
D) to pay the costs.
SO ORDERED.6
The petitioner appealed to the Court of Appeals (CA) contending that he
deserved acquittal of the crime charged. The CA rendered judgment reversing
the decision of the RTC and finding the petitioner guilty beyond reasonable doubt
of reckless imprudence resulting in homicide under Article 365 of the Revised
Penal Code. The decretal portion of the decision of the CA reads:
WHEREFORE, premises considered, the Decision appealed from is hereby SET
ASIDE and anew one entered, finding the accused-appellant Oscar Magno
GUILTY beyond reasonable doubt of the crime of RECKLESS IMPRUDENCE
RESULTING IN HOMICIDE punishable under Article 365 of the Revised Penal
Code. Accused-appellant Oscar Magno is hereby sentenced to suffer an
indeterminate imprisonment of One (1) Year, Seven (7) months and Eleven (11)
days of prision correccional, as minimum, to Two (2) years, Ten (10) months and
Twenty (20) days of prision correccional, as maximum, and to pay the heirs of the
late Dov Lourenz Dunuan, the sum of P75,000.00 as indemnity for the death of
the victim. Accused-appellant is likewise ordered to pay said heirs P117,000.00
as actual damages plus costs.
SO ORDERED.7
The petitioners motion for reconsideration of the decision was denied by the CA.
Before this Court, the petitioner assails the decision of the CA and prays for the
reversal thereof, contending that the Court of Appeals erred in finding him guilty
beyond reasonable doubt of reckless imprudence resulting in homicide on a
charge of homicide committed with dolo or with malice. 8

Page 112 of 158

The Petitioner prays ex abundentia cautela that if this Court sustains the decision
of the Court of Appeals, he be granted probation. He appended a copy of his
petition for probation to his petition in this Court. He prays the Court that:
a. The case against your petitioner OSCAR MAGNO be dismissed because he
cannot be convicted for Reckless Imprudence resulting in Homicide as the said
charge is not included in the original charge of Homicide; WITHOUT PREJUDICE
to the filing of the proper charges and before the proper courts in accordance
with the guidelines implied by the Decision of the Honorable COURT OF
APPEALS on what should be the proper offense charged;
b. Or, in the alternative, assuming that this Honorable Court shall not look kindly
upon his prayer above, that he be allowed to APPLY FOR PROBATION whether
directly ordered by this Honorable SUPREME COURT in the valid exercise of its
inherent judicial powers, or by remanding the records of the case to the lower
court for promulgation of the DECISION of the COURT OF APPEALS dated April
4, 2001 with instructions to allow the petitioner to forthwith file an Application for
Probation or accept the Application for Probation attached hereto in cautela;
c. It is most respectfully prayed that your petitioner be granted such other and
further relief as may be just and equitable in the premises. 9
The petition is not impressed with merit.
Sections 4 and 5, Rule 120 of the Revised Rules of Criminal Procedure reads:
SEC. 4. Judgment in case of variance between allegation and proof. When
there is variance between the offense charged in the complaint or information
and that proved, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the offense
proved which is included in the offense charged, or of the offense charged which
is included in the offense proved. (4a)
SEC. 5. When an offense includes or is included in another. An offense
charged necessarily includes the offense proved when some of the essential
elements or ingredients of the former, as alleged in the complaint or information,
constitute the latter. And an offense charged is necessarily included in the
offense proved, when the essential ingredients of the former constitute or form
part of those constituting the latter. (5a).10
The issue raised by the petitioner in this case is not new. In People v. De
Fernando,11 this Court ruled that one charged with murder may be convicted of
reckless imprudence resulting in homicide. In People v. Carmen,12 the Court
convicted the appellants of reckless imprudence resulting in homicide on a
charge of murder. The Court ruled that the quasi offense of reckless imprudence
Page 113 of 158

resulting in homicide is necessarily included in a charge of murder. The Court in

Samson v. Court of Appeals,13 emphasized that while a criminal negligent act is
not a simple modality of a willful crime, but a distinct crime in itself, defined as an
offense in the Revised Penal Code, it may, however, be said that a conviction for
the former can be had under an information exclusively charging the commission
of a willful offense upon the theory that the greater includes the lesser offense.
The Petitioners plaint that by convicting him of reckless imprudence resulting in
homicide on a charge of homicide by dolo, and sentencing him to an
indeterminate penalty, he is deprived of his right to file a petition for probation
under P.D. 968, as amended, and his right to the equal protection of laws, is
patently without legal basis. The conviction of the petitioner for reckless
imprudence resulting in homicide and sentencing him to an indeterminate penalty
has nothing to do with his qualifications or disqualifications for probation under
P.D. No. 968. Whether or not the petitioner may still file a petition for probation
despite his appeal from the judgment of the trial court; and whether or not he is
entitled to probation under P.D. No. 968, as amended, and under prevailing
jurisprudence, will have to be ascertained by the trial court in which a petition for
probation is filed as mandated in Section 4 of P.D. 968, as amended, 14 and not by
this Court.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The Decision of
the Court of Appeals is AFFIRMED. With costs against the petitioner.
SO ORDERED.
G.R. No. 129744 June 26, 1998
HONOR P. MOSLARES, petitioner,
vs.
THIRD DIVISION, COURT OF APPEALS, HON. ERIBERTO ROSARIO, JR.,
Presiding Judge, Br. 66, Makati; TOYOTA BEL-AIR, INC., respondents.

MELO, J.:
Petitioner Honor P. Moslares seeks to set aside the decision of the Court of
Appeals in its CA-G.R. SP No. 40086, dismissing his petition for review and
affirming the order dated September 13, 1995 of the Regional Trial Court of the
National Capital Judicial Region (Makati City, Branch 66), declaring petitioner to
have waived his right to present evidence, and affirming too the decision of the
same regional trial court dated October 26, 1995 finding petitioner guilty of
violation of Batas Pambansa Bilang 22 (Criminal Case No. 22-0099) which
decision was promulgated in absentia. Likewise, petitioner seeks to nullify
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respondent appellate court's resolutions dated April 11, 1997 and May 19, 1997
denying his petition for bail.
The antecedental facts may be chronicled in the following manner:
On February 19, 1991, petitioner purchased three units of Toyota Corolla 1600
from Toyota Bel-Air, Inc. which were thereupon registered under his name, under
the name of Manila Construction Development Corporation of the Philippines,
and under the name of Austra-Phil Homes Inc. In payment thereof, petitioner
issued Philippine Bank of Communications Check No. 841644 dated May 24,
1991 in the amount of P1,425,780.00. When presented for payment, said check
was dishonored for having been drawn against insufficient funds. Thus, petitioner
was charged for violation of Batas Pambansa Blg. 22 and for Estafa.
The hearings of the case were postponed several times either at the instance of
the petitioner or the prosecution, or motu proprio by the court. On September 13,
1995, the scheduled date of the presentation of evidence by petitioner, he failed
to appear, but was represented by a newly retained lawyer, Atty. Dionisio
Landero, who claimed that he was not ready to proceed with the trial as he was
not yet familiar with the case. As a result, the trial court set the promulgation of
the decision on October 30, 1995.
On October 9, 1995, petitioner filed a Motion for Reconsideration/Re-Trial.
However, on October 26, 1995 the trial court issued its assailed decision,
portions of which read:
The record shows that accused Honor Moslares did not attend during the
presentation of evidence for the prosecution nor for the defense. The Court set
the presentation of evidence for defense nineteen (19) times four (4) of which
were cancelled on the ground that there was a typhoon and the public prosecutor
was "indisposed". But the accused did not even testify and presented only one
witness, a certain Sixto Avila. Subject cases were submitted for decision four (4)
times for failure of the accused to present evidence but was lifted in the interest
of justice upon motion of the accused. He changed his lawyer four times
everytime the Court ordered the case submitted for decision for failure of the
accused to present his evidenced inorder to gain a delay.
xxx xxx xxx
IN VIEW OF THE FOREGOING, judgment is hereby rendered:
1) In Criminal Case No. 92-0099 finding accused Honor Moslares guilty beyond
reasonable doubt of violation of Batas Pambansa Bilang 22 and the Court hereby
sentences Honor Moslares to suffer an imprisonment of one (1) year.
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2) In Criminal Case No. 92-0100 finding accused Honor Moslares guilty beyond
reasonable doubt of violation of Batas Pambansa Bilang 22 and the Court hereby
sentences Honor Moslares to suffer an imprisonment of one (1) year.
(pp. 111-112; 114, Rollo.)
On October 30, 1995, the trial court proceeded to promulgate in absentia the
October 26, 1996 decision.
On November 14, 1995, petitioner filed a notice of appeal which was denied due
course by the lower court in its assailed order dated February 1, 1996. The lower
court, relying on the case of People vs. Mapalao (197 SCRA 79 [1991]),
considered petitioner to have waived his right to appeal.
On February 14, 1996, petitioner filed a petition for relief from judgment which
was likewise denied by the trial court. On March 14, 1996, petitioner filed a
petition for review with the Court of Appeals which treated the petition as one for
certiorari. Petitioner also filed on October 3, 1996, a petition to post bail, later
supplemented.
On November 29, 1996, the Court of Appeals rendered a decision dismissing the
petition for review and denying the petition to post bail. Motions for
reconsideration subsequently filed by petitioner were denied.
Hence, the instant recourse, with petitioner contending that the Court of Appeals
erred:
I. IN AFFIRMING THE DECISION OF THE LOWER COURT DECLARING THAT
THE PETITIONER HAD WAIVED HIS RIGHT TO PRESENT EVIDENCE BY
NUMEROUS POSTPONEMENTS THEREBY DEPRIVING PETITIONER HIS
RIGHT TO DUE PROCESS.
II. IN AFFIRMING THE DECISION OF THE LOWER COURT WHICH WAS
PROMULGATED IN ABSENTIA WITHOUT GIVING PETITIONER AN
OPPORTUNITY TO PRESENT EVIDENCE IN SUPPORT OF HIS DEFENSE.
III. IN RULING THAT PETITIONER HAS NO VALID DEFENSE.
IV. IN SUSTAINING ACTION OF LOWER COURT DISMISSING APPEAL
THEREBY DENYING HIS RIGHT TO DUE PROCESS.
V. IN DENYING PETITIONER'S APPLICATION FOR BAIL.
(p. 10, Rollo.)

Page 116 of 158

Anent the first and second errors which are related, the Court of Appeals agreed
with the trial court that petitioner should be considered to have waived his right to
present further evidence because of his repeated failure to attend scheduled
hearings.
While it is true that the right to present evidence may be waived expressly or
impliedly, it cannot be said that petitioner had waived said right in this case. The
postponements sought by petitioner and counsel appear to be justified and were
not vexatious and oppressive as borne by the record of the case. The intention
and the willingness of petitioner to present evidence can be gleaned from the fact
that he had already presented one witness and has other witnesses ready for
presentation, although this was delayed, but for meritorious reasons, such as
illness of the petitioner and his counsel, petitioner's confinement at a hospital,
ongoing negotiations between the parties, and substitution of counsel.
The rights of an accused during trial are given paramount importance in our laws
and rules on criminal procedure. Among the fundamental rights of the accused is
the right to be heard by himself and counsel. Verily, this right is even guaranteed
by the Constitution itself. This right has been recognized and established in order
to make sure that justice is done to the accused.
Further, the constitutional right of the accused to be heard in his defense is
inviolate. No court of justice under our system of government has the power to
deprive him of that right (People vs. Lumague, Jr., 111 SCRA 515 [1982]).
It would have thus been more befitting and seemly of the Court of Appeals had it
ordered the trial court to reopen the case for the reception of petitioner's
evidence. Granting that petitioner had sought a number of postponements, the
requirements of substantial justice mandate that he should have been given his
day in court. The grant of a reasonable continuance would have been sounder
judicial discretion to ferret out the truth, than to have a speedy disposition of the
case, but at the expense of a fundamental right.
Hence, it was error for the trial court to have proceeded with the promulgation of
decision on the premise that petitioner had waived his right to appear in court to
present his evidence. Likewise, the Court of Appeals, in affirming said decision,
gravely abused its discretion as it sustained a decision of the lower court
rendered in violation of the right of petitioner to due process. As enunciated in the
case of Alliance of Democratic Free Labor Organization vs. Laguesma (254
SCRA 565 [1996]), the most basic tenet of due process is the right to be heard.
As regards the third assigned error, the Court of Appeals held that the defense
sought to be established by petitioner would not, even if considered by the court,
exonerate him from his criminal liability under Batas Pambansa Blg. 22. This
Page 117 of 158

declaration seems to be no less than, and is tantamount to, prejudging the nature
of the testimony of petitioner and his witnesses.
It is worthy to note that the alleged criminal liability of petitioner stems from his
being the signatory of the questioned check and his being an officer of the
corporation, the actual purchaser of the cars. As mentioned by the Solicitor
General in his Manifestation, and citing the case of Lina Lim Lao vs. Court of
Appeals (274 SCRA 572 (1997]), an officer of a corporation is not to be held
criminally liable for violation of Batas Pambansa Blg. 22 for signing a bum check,
upon which premise, the Solicitor General concludes and recommends that
petitioner be given his opportunity to present his evidence.
With respect to the fourth error, the lower court, in denying petitioner's appeal,
considered him to have waived his right to appeal because of his failure to be
present during the promulgation of the judgment on October 30, 1995, despite
due notice to him and his bondsman or counsel.
We do not agree.
The last sentence of Section 6, Rule 120 states that :
. . . If the judgment is for conviction, and the accused's failure to appear was
without justifiable cause, the court shall further order the arrest of the accused,
who may appeal within fifteen (15) days from notice of the decision to him or his
counsel.
This means that whether or not the absence of the accused during promulgation
is justified, the right to appeal is not lost, the only requirement being that the
notice of appeal must be filed within 15 days from notice of the judgment.
The Mapalao ruling (197 SCRA 79 [1991]), upon which the lower court and the
Court of Appeals based their denial of petitioner's appeal, does not appear to be
applicable herein, as the facts of the two cases differ. In Mapalao, the accused
escaped from detention and trial in absentia continued against him. He remained
at large even at the time of the promulgation of judgment, and thus, was deemed
to have waived his right to appeal. In the instant case, however, petitioner is not a
fugitive from justice. On the contrary, petitioner has been seeking redress under
the law as evidenced by the various pleadings and motions he has filed with the
courts. Petitioner, therefore, cannot be considered as one who has lost his
standing in court and thus, cannot be deprived of his right to seek judicial relief.
Inasmuch as petitioner's appeal was perfected within the 15-day reglementary
period, the same must be given due course. To deny petitioner's appeal is
tantamount to denying him due process. Although the right to appeal is a
statutory, not a natural right, it is an essential part of the judicial system and
Page 118 of 158

courts should proceed with caution so as not to deprive a party of this

prerogative, but instead, afford every party-litigant the amplest opportunity for the
proper and just disposition of his cause, freed from the constraints of
technicalities (Santos vs. Court of Appeals, 253 SCRA 632 [1996]).
On the matter of bail, the Court of Appeals denied petitioner's motion to post bail
on the ground that the decision of the lower court had become final and
executory, inasmuch as the petitioner's appeal has also been denied.
The following provisions of Rule 114 of the Rules of Court, as amended by
Administrative Circular No. 12-94, are pertinent :
Sec. 4. Bail, a matter of right. All persons in custody shall: (a) before or after
conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial
Court in Cities and Municipal Circuit Trial Court, and (b) before conviction by the
Regional Trial Court of an offense not punishable by death, reclusion perpetua or
life imprisonment, be admitted to bail as a matter of right, with sufficient sureties,
or be released on recognizance as prescribed by law or this Rule.
Sec. 5. Bail, when discretionary. Upon conviction by the Regional Trial Court
of an offense not punishable by death, reclusion perpetua or life imprisonment,
the court, on application, may admit the accused to bail.
The court, in its discretion, may allow the accused to continue on provisional
liberty under the same bail bond during the period of appeal subject to the
consent of the bondsman.
If the court imposed a penalty of imprisonment exceeding six (6) years but not
more than twenty (20) years, the accused shall be denied bail, or his bail
previously granted shall be cancelled, upon a showing by the prosecution, with
notice to the accused, of the following or other similar circumstances:
(a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteration;
(b) That the accused is found to have previously escaped from legal confinement,
evaded sentence, or has violated the conditions of his bail without valid
justification;
(c) That the accused committed the offense while on probation, parole, or under
conditional pardon;
(d) That the circumstances of the accused or his case indicate the probability of
flight if released on bail; or

Page 119 of 158

(e) That there is undue risk that during the pendency of the appeal, the accused
may commit another crime.
The appellate court may review the resolution of the Regional Trial Court, on
motion and with notice to the adverse party.
Petitioner was not convicted of an offense punishable by death, reclusion
perpetua, or life imprisonment where bail is not a matter of right on the part of
petitioner nor of discretion on the part of the Court. Neither has he been
convicted of an offense punishable by imprisonment of six to twenty years where
bail becomes a matter of judicial discretion and may be denied if any of the
circumstances aforementioned are present. Rather, petitioner was convicted
erroneously it is to be hastily added of offenses punishable only by
imprisonment of one year each. In this light, petitioner's admission to bail
becomes imperative and indispensable, moreso because of petitioner's
deteriorating health.
The right to bail is a constitutional guaranty which every person under legal
custody may invoke, except those disqualified under the law. Petitioner does not
fall under these exceptions and must, therefore, be duly accorded such right.
Verily, it was patent error for the respondent Court of Appeals to deny petitioner
of said right.
WHEREFORE, the instant petition for certiorari is GRANTED. The decision of the
Court of Appeals dated November 29, 1996 affirming the October 30, 1996
decision of the lower court, as well as said latter decision, are hereby set aside,
and the case is remanded to the court of origin for further proceedings whereat,
petitioner may be given an opportunity to post bail. For this reason, respondent
court's resolutions dated April 11, 1997 and May 19, 1997 denying petitioner's
petition for bail likewise set aside. No special pronouncement is made as to
costs.
SO ORDERED.
G.R. No. 143547

June 26, 2002

JOEY POTOT y SURIO, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and LOLITO DAPULAG, respondents.
SANDOVAL-GUTIERREZ, J.:
After the accused has filed with the trial court a manifestation that he is not
appealing its Decision convicting him of homicide and that he is ready to serve
his sentence, can the same court, upon motion by the private complainant with
Page 120 of 158

the conformity of the public prosecutor, set aside the said judgment and remand
the records of the case to the Office of the Provincial Prosecutor for re-evaluation
of the evidence and the filing of the corresponding charge? This is the issue
raised in the instant petition for review on certiorari.1wphi1.nt
Joey S. Potot, petitioner, was charged with homicide in Criminal Case No. 2739
before the Regional Trial Court (RTC), Branch 19, Catarman, Northern Samar.
The information against him, filed on December 12, 1999, alleges:
"That on or about the 2nd day of November, 1999, at about 3:00 oclock in the
early morning in the public cemetery of the Municipality of Mondragon, Province
of Northern Samar, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, armed with a knife locally called dipang, with
deliberate intent to kill and without justifiable cause, did then and there wifully,
unlawfully and feloniously attack, assault and stab RODOLFO DAPULAG @ PILI
with the use of said weapon which the accused had provided himself for the
purpose, thereby inflicting upon said Rodolfo Dapulag @ Pili a mortal wound
which caused the death of said victim.
"CONTRARY TO LAW." 1
Upon arraignment on February 1, 2000, wherein the information was read to him
in his own dialect, petitioner, assisted by counsel, pleaded guilty to the charge. 2
Forthwith, he invoked not only the mitigating circumstance of plea of guilty, but
also the circumstance of voluntary surrender since, as shown in the records, he
surrendered voluntarily to the Philippine National Police (PNP) Headquarters
immediately after the commission of the crime. The public prosecutor did not
raise any objection. Instead, he manifested that there is no aggravating
circumstance which attended the commission of the crime.
Thereupon, the trial court, after being satisfied that petitioner understood the
meaning and consequences of his plea of guilty, rendered and promulgated its
Decision3 in open court convicting him of homicide, with the mitigating
circumstances of plea of guilty and voluntary surrender appreciated in his favor.
The dispositive portion of the Decision reads:
"WHEREFORE, the Court accepts the plea of guilty of Joey Potot y Sorio, and
finds him guilty beyond reasonable doubt of the crime of homicide, and
appreciating in his favor the mitigating circumstances of plea of guilty and
voluntary surrender, with no aggravating circumstance in attendance, and
applying the Indeterminate Sentence Law, sentences him to suffer an
imprisonment ranging from two (2) years four (4) months and one (1) day of
prision correccional, as minimum, to eight (8) years and one (1) day of prision
Page 121 of 158

mayor, as maximum; to indemnify the heirs of Rodolfo Dapulag y Conge, also

known as Pili, in the amount of P50,000.00; and to pay the costs.
"The period during which the accused has undergone preventive imprisonment
shall be deducted in full from the foregoing sentences involving deprivation of
liberty should the records reveal that he expressly agreed in writing to abide by
the same rules and regulations governing convicted prisoner during his entire
detention period and if the records show that he is entitled to the privilege under
the law.
"SO ORDERED."4
On February 3, 2000, petitioner, through counsel, filed a manifestation with
motion5 informing the trial court that he is not appealing from the Decision and
praying that a commitment order be issued so he could immediately serve his
sentence. Attached to the motion is petitioner's letter to the court stating that he
does not intend to appeal from its Decision.6
However, on February 11, 2000, the private complainant, Rosalie Dapulag (wife
of the victim), filed through counsel, a motion for reconsideration/retrial 7 praying
that the Decision be set aside and that the case be heard again because "there
were irregularities committed before and during the trial which caused
miscarriage of justice." The motion, which bears the conformity of the public
prosecutor, alleges, among others, that:
"The true facts surrounding the commission of the crime as revealed by the
eyewitnesses, EDUARDO BOYSON and JIMUEL MARQUITA, on December 8,
1999 is that RODOLFO DAPULAG, private offended partys deceased husband,
was killed on that fateful morning by accused JOEY POTOT with the aid of
DOMING JARILLA and MARLITO NAZAM who respectively held the right and left
arm of Rodolfo Dapulag to ensure the commission of the crime by accused Joey
Potot.
"This information was deliberately withheld by the said eyewitnesses,
especially EDUARDO BOYSON, during the investigation conducted by the
police and the preliminary investigations conducted by the presiding judge
of MCTC of Mondragon-San Roque and the Office of the Provincial
Prosecutor upon the solicitations of Mayor Elito Dapulag, who in good faith
believed that the inclusion of Doming Jarilla and Marlito Nazam would make the
prosecution of the case more difficult. The eyewitnesses, who are likewise in
the belief that indeed the inclusion of the above-named persons would
complicate the case, withheld the said information until witness Jimuel
Marquita revealed the same to the private offended party on December 8,
1999.1wphi1.nt
Page 122 of 158

xxx

xxx

xxx

"The private offended party (not in her capacity as such, but as a citizen) has the
right to demand from the State the punishment of heinous crimes in accordance
with law. And such right is now in jeopardy of being lost for some causes not
attributable to her.
xxx

xxx

xxx

"Hereto attached and made integral parts hereof are the affidavits of
eyewitnesses JIMUEL MARQUITA and EDUARDO BOYSON." (Emphasis
supplied)
Petitioner opposed8 the motion, asserting that there was no irregularity in the
preliminary investigation of the case and in the proceedings before the trial court;
and that the decision can no longer be modified or set aside because it became
final when he formally waived his right to appeal.
The trial court, in its order dated May 3, 2000, 9 granted private complainant's
motion and set aside its February 1, 2000 Decision "as proceeding from a rigged,
hence, sham hearing." It likewise ordered that the records of the case be
remanded to the Office of the Provincial Prosecutor "for re-evaluation of the
evidence and to file the corresponding charge," thus:
"From the records are gathered that the case, as originally referred to the
Municipal Circuit Trial Court, was for murder. In the conduct of the preliminary
investigation, said court determined that a prima facie case exists and
recommended the accused be held for trial on the charge. In his resolution
reviewing the records of the preliminary investigation conducted by the
municipal court, the prosecutor entirely missed discussion of the
participation of two others allegedly in conspiracy with the accused. The
exclusion of the two others identified as Doming Jarilla and Marlito Nazam
was orchestrated by the Municipal Mayor who, in good faith, prevailed
upon the witnesses not to implicate them. To these foregoing, the Provincial
Prosecutor is in conformity.
"Accordingly, the Branch Clerk of Court shall remand the records hereof to the
Office of the Provincial Prosecutor for re-evaluation of the evidence and to file the
corresponding charge supported by the same. The motion or manifestation
requesting for the issuance of a commitment order filed by the defense is
DENIED.
"SO ORDERED."

Page 123 of 158

Petitioner filed a motion for reconsideration10 contending that the trial court has
no jurisdiction to issue the February 1, 2000 order as the Decision had become
final, and that the said order "would place the accused in double jeopardy." In the
order of May 26, 2000,11 the trial court denied the motion for reconsideration for
the reason that the State is not bound by the error or negligence of its
prosecuting officers, hence, jeopardy does not attach."
Petitioner now assails the orders of May 3 and 26, 2000.
The Solicitor General agrees with the petitioner that the challenged orders should
be set aside and that the February 1, 2000 Decision should be reinstated. 12
We find the petition meritorious.
Section 7, Rule 120 of the Revised Rules on Criminal Procedure, as amended,
provides:
"SEC. 7. Modification of judgment. A judgment of conviction may, upon
motion of the accused, be modified or set aside before it becomes final or
before appeal is perfected. Except where the death penalty is imposed, a
judgment becomes final after the lapse of the period for perfecting an appeal,
or when the sentence has been partially or totally satisfied or served, or when
the accused has waived in writing his right to appeal, or has applied for
probation. (7a)" (Emphasis ours)
It is thus clear that only the accused may ask for a modification or setting aside of
a judgment of conviction. And this he must do before the said judgment
becomes final or before he perfects his appeal. Such judgment becomes final in
any of the following ways: (a) when no appeal is seasonably filed by the accused,
except in case of automatic review of the decision imposing the capital penalty; 13
(b) when he has partially or totally served his sentence; (c) when he expressly
waives his right to appeal the judgment, except when the death penalty is
imposed; or (d) when he applies for probation. When one of these circumstances
is present, the trial court which rendered the judgment of conviction loses
jurisdiction to alter, modify or revoke it.14
It is an undisputed fact that on February 3, 2000, or three days after the
promulgation of the judgment of conviction, petitioner filed a manifestation
expressly waiving his right to appeal therefrom. His intention not to appeal is
further indicated by his prayer in the same manifestation for the immediate
issuance of a commitment order so he could serve his sentence. Such waiver
has the effect of causing the judgment to become final and unalterable. 15 Thus, it
was beyond the authority of the trial court to issue the order of May 3, 2000
setting aside its February 3, 2000 Decision which had attained finality.
Page 124 of 158

In Calalang vs. Register of Deeds of Quezon City16 and in a long line of cases,
this Court (En Banc) held that a judgment which has acquired the status of
finality becomes immutable. Any error, assuming one was committed in the
judgment, will not justify its amendment except only to correct clerical errors or
mistakes.
It is likewise procedurally impermissible for the trial court to grant private
complainant's motion for reconsideration of its Decision. Section 1, Rule 121 of
the same Rules provides:
"SECTION 1. New trial or reconsideration. - At any time before a judgment of
conviction becomes final, the court may, on motion of the accused or at its
own instance but with the consent of the accused, grant a new trial or
reconsideration. (1a)" (Emphasis ours)
Since the motion for reconsideration of the judgment of conviction was not
initiated by the accused (petitioner) or at the instance of the trial court with his
consent, the same should have been denied outright as being violative of the
above provision.
At any rate, the records do not show any irregularity in the preliminary
investigation of the case before the Provincial Prosecutors Office. The motion for
reconsideration filed by the private complainant questions the (1) alleged failure
of the Provincial Prosecutor to appreciate the sworn statements of two
prosecution witnesses implicating two other individuals in the commission of the
crime; and the (2) downgrading by the Provincial Prosecutor of the initial charge
of murder to homicide. But the motion for reconsideration itself reveals that the
supposed vital information from two witnesses implicating two other persons in
the crime "was deliberately withheld by the said witnesses during the
police investigation and the preliminary investigation conducted by the MCTC
Judge and the Office of the Provincial Prosecutor." Hence, the Provincial
Prosecutor who reviewed the records could not have possibly appreciated the
alleged vital facts. Besides, the complainant did not appeal from the Provincial
Prosecutors finding of probable cause for the crime of homicide against
petitioner. It bears stressing at this point that the public prosecutor has the quasijudicial prerogative to determine what crime should be filed in court and who
should be charged therefor. He always assumes and retains full discretion and
control of the prosecution of all criminal actions. 17 As held by this Court in People
vs. Vergara:18
"Section 5 of Rule 110 of the New Rules of Criminal Procedure expressly
provides that [a]ll criminal actions commenced by a complaint or
information shall be prosecuted under the direction and control of the
fiscal. It must be remembered that as public prosecutor he is the representative
Page 125 of 158

not of the ordinary party to a controversy, but of a sovereignty whose obligation to

govern impartially is as compelling as its obligation to govern all; and whose
interest, therefore, in a criminal prosecution is not that it shall win a case, but that
justice shall be done. As such, he is in a peculiar and very definite sense the
servant of the law, the twofold aim of which is that guilt shall not escape or
innocence suffer. Hence, the fiscal or public prosecutor always assumes
and retains full direction and control of the prosecution of the case. The
institution of a criminal action depends upon his sound discretion. He has
the quasi-judicial discretion to determine whether or not a criminal case
should be filed in court; whether a prima facie case exists to sustain the
filing of an Information; whether to include in the charge those who appear
to be responsible for the crime; whether to present such evidence which he
may consider necessary." (Emphasis ours)
Finally, we agree with the petitioner that the assailed orders would violate his
constitutional right against double jeopardy.19 Such right prohibits any subsequent
prosecution of any person for a crime of which he has previously been acquitted
or convicted. The objective is to set the effects of the first prosecution forever at
rest, assuring the accused that he shall not thereafter be subjected to the peril
and anxiety of a second charge against him for the same offense. 20
To invoke the defense of double jeopardy, the following requisites must be
present: (1) a valid complaint or information; (2) the court has jurisdiction to try
the case; (3) the accused has pleaded to the charge; and (4) he has been
convicted or acquitted, or the case against him dismissed or otherwise
terminated without his express consent.21
These requisites have been established. Records show that petitioner was
charged with homicide in Criminal Case No. 2739 under a valid information
before the trial court which has jurisdiction over it. He was arraigned and pleaded
guilty to the charge. On the basis of his plea, petitioner was convicted and meted
the corresponding penalty. As petitioner has been placed in jeopardy for the
crime of homicide, he cannot be prosecuted anew for the same offense, or any
offense which necessarily includes or is necessarily included in the first offense
charged.22
WHEREFORE, the instant petition is hereby GRANTED. The assailed orders
dated May 3, 2000 and May 26, 2000 issued in Criminal Case No. 2739 by the
trial court are SET ASIDE. Its Decision dated February 1, 2000 is
REINSTATED.1wphi1.nt
SO ORDERED.
G.R. Nos. 136733-35

December 13, 2001

Page 126 of 158

PEOPLE OF THE PHILIPPINES, appellee,

vs.
ELADIO VIERNES y ILDEFONSO, appellant.
PANGANIBAN, J.:
Under the Rules of Court, a judgment of conviction in a criminal prosecution may
be modified only upon motion of the accused. As a rule, the prosecution is
prohibited from seeking, and the trial court from granting, a more severe penalty
than that imposed in the original decision. This is especially true in a case in
which the new and amended penalty imposed is death.
The Case
Before us is an appeal1 from the April 6, 1998 Decision and the May 21, 1998
Order2 of the Regional Trial Court (RTC) of Lipa City (Branch 12) in Criminal
Case Nos. 0532-97, 0533-97 and 0534-97. The assailed Decision convicted
appellant of two counts of rape and one count of attempted rape. It disposed as
follows:
"WHEREFORE, the Court finds the accused, ELADIO VIERNES y ILDEFONSO,
guilty beyond reasonable doubt in Crim. Case No. 0532-97 of the crime of Rape,
as defined and penalized under Article 335, par. 3 of the Revised Penal Code, as
amended by Republic Act No. 2532 and Republic Act No. 4111; in Crim. Case
No. 0533-97 of the crime of Attempted Rape, as defined and penalized under
Article 335, par. 3 in relation to Article 51 of the Revised Penal Code, as
amended by Republic Act No. 2532 and Republic Act No. 4111; and, in Crim.
Case No. 0534-97 of the crime of Rape, as defined and penalized under Article
335, par. 1 of the Revised Penal Code, as amended by Republic Act No. 2532
and Republic Act No. 4111, and sentences him, as follows:
"1. CRIM. CASE NO. 0532-97 to suffer the penalty of RECLUSION
PERPETUA, to indemnify Catherine Linatoc in the amount of P50,000.00, to pay
P10,000 as moral damages pursuant to Article 2219 (3) of the Civil Code, as well
as exemplary damages in the amount of P5,000.00 pursuant to Article 2229 of
the same Code and the costs of this suit;
"2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of FOUR (4)
YEAR, TWO (2) MONTHS and ONE (1) DAY of Prision Correccional, as
Minimum, to EIGHT (8) YEARS and ONE (1) DAY of Prision Mayor, as Maximum,
to indemnify Catherine Linatoc in the amount of P25,000.00, and to pay the costs
of this suit; and
"3. CRIM. CASE NO. 0534-97 to suffer the penalty of RECLUSION
PERPETUA, to indemnify Catherine Linatoc in the amount of P50,000.00, to pay
Page 127 of 158

P10,000.00 as moral damages pursuant to Article 2219 (3) of the Civil Code, as
well as exemplary damages in the amount of P5,000.00 pursuant to Article 2229
of the same Code and the costs of this suit."3
On the other hand; the assailed Order increased the penalties as follows:
"WHEREFORE, the Court finds the accused, ELADIO VIERNES y ILDEFONSO,
guilty beyond reasonable doubt in Crim. Case No. 0532-97 of the crime of Rape,
as defined and penalized under Article 335, par. 3 of the Revised Penal Code, as
amended by Republic Act No. 7659; in Crim. Case No. 0533 of the crime of
Attempted Rape, as defined and penalized under Article 335, par. 3 in relation to
Article 51 of the Revised Penal Code, as amended by Republic Act No. 7659,
and in Crim. Case No. 0534-97 of the crime of Rape, as defined and penalized
under Article 335, par. 1 of the Revised Penal Code, as amended by Republic Act
No. 7659, and sentences him, as follows:
"1. CRIM. CASE NO. 0532-97 to suffer the penalty of DEATH, to indemnify
CATHERINE LINATOC in the amount of P50,000.00, to pay P10,000 as moral
damages pursuant to Article 2219 (3) of the Civil Code, as well as exemplary
damages in the amount of P5,000.00 pursuant to Article 2229 of the same Code
and the costs of this suit;
"2. CRIM. CASE NO. 0533-97 to suffer an indeterminate penalty of TEN (10)
YEARS and ONE (1) DAY of Prision Mayor, as Minimum, to FOURTEEN (14)
YEARS, EIGHT (8) MONTHS and ONE (1) DAY of Reclusion Temporal, as
Maximum, to indemnify Catherine Linatoc in the amount of P25,000.00 and to
pay the costs of this suit; and
"3. CRIM. CASE NO. 0534[-97] to suffer the penalty of DEATH, to indemnify
Catherine Linatoc in the amount of P50,000.00, to pay P10,000.00, as moral
damages pursuant to Article 2219 (3) of the Civil Code, the amount of P5,000.00,
as exemplary damages, pursuant to Article 2229 of the same Code and the costs
of this suit."4
Three criminal Complaints, all dated August 21, 1997, were filed by Catherine
Linatoc (assisted by her mother Lina Dela Cruz-Linatoc) before Second Assistant
City Prosecutor Danilo S. Sandoval. The Complaint in Criminal Case No. 053297 charged appellant with rape committed as follows:
"That on or about the 29th day of September, 1996 at about 10:00 o'clock in the
morning at Barangay Tibig, Lipa City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, being then the common law
husband of the mother of the victim, did then and there willfully, unlawfully and
feloniously, by means of force and intimidation have carnal knowledge of the
undersigned complainant who is a minor below 12 years old, against her will and
Page 128 of 158

consent to her damage and prejudice in such amount as may be awarded to her
under the provision of the Civil Code."5
The Complaint in Crim. Case No. 0534-97 likewise charged him with
consummated rape:
"That on or about the 18th day of August 1997 at about 12:00 o'clock noon, at
Barangay Tibig, Lipa City, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, being then the common law husband of the
mother of the victim, did then and there wilfully, unlawfully and feloniously, by
means of force and intimidation have carnal knowledge of the undersigned
complainant who is a minor of 12 years old against her will and consent to her
damage and prejudice in such amount as may be awarded to her under
provisions of the Civil Code."6
Finally, in Criminal Case No. 0533-97, appellant was charged with attempted
rape:
"That on or about the month of March 1997, around noon time, at Barangay Tibi,
Lipa City, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, being then the common law husband of the mother of the
victim, by means of force and intimidation and with lewd design pursuant to his
carnal desire, did then and there willfully, unlawfully and feloniously commence
the commission of the felony of rape directly by overt acts against the
undersigned complainant who is a minor below 12 years old, by then and there
undressing her and going on top of her with his exposed private organ but did not
perform all the acts of execution which should have produced the said felony
because the undersigned offended party resisted."7
Criminal Case Nos. 0532-97 and 0534-97 were raffled to the Regional Trial Court
of Lipa City, Branch 12; and Criminal Case No. 0533-97, to Branch 85 of the
same court. Later, all the cases were consolidated in Branch 12. 8
On arraignment, appellant pleaded not guilty.9 After trial in due course, the lower
court rendered the assailed Decision.
In a Motion for Reconsideration dated May 18, 1998, Prosecutor Sandoval asked
that the imposed penalties be increased pursuant to Republic Act (RA) No. 7659.
The RTC granted the Motion via the assailed Order.
The
Version of the Prosecution

Facts

In its Brief,10 the Office of the Solicitor General presents the following narration of
facts:
Page 129 of 158

"Catherine Linatoc stood quietly by the door of the toilet of appellant's her
mother's common-law husband house. Her skirt's hemlines were slowly falling
to her knees vainly covering the panty that were pulled down mid-way her lower
legs. This was the third of a series of dismaying sex that she and appellant had
been through. Like the others before this one, there was by appellant much
pulling, shoving and forcible grasping of her hands, thus rendering her immobile
for three minutes or so.
"The third rape happened in appellant's house in Tibig, Lipa City, around
noontime of August 18, 1997. Appellant then bidded [sic] the two brothers and a
step-brother of Catherine Linatoc to clean the his tricycle, which was parked on
the side of the street across his house. They followed his order. Appellant also
instructed Catherine Linatoc to fetch water for the house toilet. She obliged,
returning with two pails of it. She deposited them by the door of the toilet. Turning
about, Catherine Linatoc was surprised to find appellant behind her. In quick
succession, appellant pushed her to the wall, pulled her skirts up, drag her panty
mid-way her lower leg, and rushed his own pants down. Grasping her hands
tightly with one hand, appellant began inserting his penis into her vagina. She
resisted to no avail. His penis established a comfortable slide into and out of her
[organ], as the pace quickened for about three minutes. The gyration was furious.
After appellant spurted out, he backed off and left saying nothing.
"Frightened and crying, Catherine Linatoc went to her great-grandmother's abode
in San Guillermo, Lipa City. She reported the incident to this elder, and recounted
some more. Catherine Linatoc told her great-grandmother of two other acts of
sexual abuse by appellant. The first one, she narrated, happened on September
29, 1996, about ten in the morning[;] and the second, on March 1997 around
noon-time.
"The first rape happened on September 4, 1996 in appellant's house. Catherine
Linatoc was on the ground floor of the house when so suddenly appellant sprung
from wherever he was, grabbed and carried her to the second floor. The second
floor was just three steps from the ground floor. He then undressed her, taking off
her sando, skirt and panty. He undressed himself too, and then floored both their
bodies, [his] on top of her. He caressed her breasts and started inserting his
penis into her vagina. Appellant held her hands tightly and fought off her struggle.
There was push and pull for about three minutes, then appellant came through.
Appellant dressed up, and before walking away, apologized to her. It would be
the first and last rape, he said.
"There was soon the second sexual abuse. In March 1997, about noontime,
using the same strategy as he did in the [first] rape, appellant unburdened
himself on Catherine Linatoc. From nowhere, appellant appeared. He dragged
her to the second floor where he undressed her and himself. He mightily threw
Page 130 of 158

her to the floor, his sweaty body covering her's. Appellant engaged in the now
familiar gyration once again. This time, however his penis landed on the thighs of
the victim as insertion, because of her struggle and vagina's virginal qualities,
became frustratingly difficult. Between her thighs appellant thrusted his penis. He
satisfied himself just the same.
"The great-grandmother was helpless to remedy the abuse done to Catherine
Linatoc. They waited for the father of Catherine Linatoc, Orlando Linatoc, who
arrived four days later. The mother of Catherine Linatoc, Lina Viernes, also
arrived. Catherine Linatoc had her medico-legal examination with these results.:
'x x x lacerated hymen on the 3:00 and 9:00 o'clock positions with small amounts
of whitish discharge.'
"The medico-legal examination was performed by Dr. Helen S. Dy. The present
criminal complaints against appellant were thereafter filed." 11
Version of the Defense
Appellant denies the charges against him. Claiming to have been elsewhere at
the time of the commission of the alleged crimes, he submits the following
counterstatement of the facts:
"1) ELADIO, at the lower court, stated that he is the common law husband of Lina
de la Cruz-Linatoc (mother of the alleged victim . . . Catherine Linatoc). He is a
security guard and at the same time, a tricycle driver. On September 29, 1996 he
was living with Lina, together with Catherine, his two sons and other relatives. On
September 28, 1996 he scolded Catherine. As a consequence thereof, Catherine
went to the house of her great grandmother and stayed therein even beyond
September 29, 1996. Therefore, it is impossible for him (ELADIO) to have
attacked Catherine sexually on September 29, 1996. It is not true that he
attempted to rape Catherine in March of 1997 because he was on duty at that
time. Their company logbook will bear witness thereto. (Exhibit '2', Original
Records) On August 18, 1997 it is not true that he raped Catherine since he was
plying his tricycle then. (TSN, pp. 2-13, December 11, 1997; and pp. 2-22,
January 8, 1998)
"2) Lina de la Cruz at the Court below, testified that she confirms claim/s [sic] of
ELADIO that Catherine was no longer in their house on September 29, 1996 and
that ELADIO could not have abused Catherine sexually. Catherine's charge for
March 1997 and August 18, 1997 were not also true. (TSN, pp. 2-7, February 3,
1998).
xxx

xxx

xxx
Page 131 of 158

"D. Sur-Rebuttal Evidence

"ELADIO, as a sur-rebuttal witness, denied to have asked the settlement of the
case."12
Ruling of the Trial Court
The court a quo held that the testimony of Catherine Linatoc both on direct
and on cross-examination was clear, positive and steadfast. Corroborated by
the medicolegal examination conducted on her, it was replete with details that
jibed on material points. The prosecution successfully proved that she was the
daughter of appellant's common-law wife and that, at the time of the crime, she
was 12 years old.
The declarations of complainant were accorded full faith and credence on the
theory that she would not publicly acknowledge the defilement of her virtue or
subject herself to public humiliation, if her purpose was not to obtain justice for
the wrong committed. There is no evidence that she was a woman of loose
morals or that she had any ill motive to falsely accuse appellant.
On the other hand, appellant's denial and alibi were unsubstantiated and selfserving; hence, they deserve no weight in law. They cannot stand against
Catherine's positive testimony.
In the assailed Order, the trial court noted that the prosecution's Motion was
unopposed. It ruled that the increase in the penalty did not place appellant in
double jeopardy.
Hence, this appeal.13
The Issues
In his Brief,14 appellant raises this sole alleged error:
"The lower court has committed an error in convicting the accused-appellant of
the crimes charged and on meting out on him the supreme penalty of death,
more particularly in Criminal Cases Nos. 0532-97 and 0534-97."
An appeal from a criminal conviction, especially one involving the death penalty,
throws the whole case open for review. Thus, it becomes the duty of the
reviewing court to correct any error in the appealed judgment, whether or not it is
made the subject of an assignment of error.15 In this light, the Court believes that
a second issue needs to be taken up, namely:
"Whether the trial court erred in increasing the penalties via the assailed Order."
Page 132 of 158

This Court's Ruling

The trial court was correct in convicting appellant in accordance with the
challenged Decision, but was wrong in imposing the new penalties through the
assailed Order.
First
Appellant's Culpability

Issue:

After a thorough review of the pleadings, the transcripts of stenographic notes

and other records of the case, we are convinced that the court a quo did not err
in giving credence to the testimonies of the victim and the other prosecution
witnesses. The testimony of private complainant, detailing how she was abused
by appellant on two separate occasions and how he tried to rape her once more,
was clear and convincing. We quote at length:
"Q
While you were in your house on that date, September 29, 1996, 10:00
o'clock in the morning, do you remember of any unusual incident that transpired if
any?
A

Yes, sir.

What was that unusual incident that transpired?

After my mother left, I was pulled sir.

By whom, who pulled you?

My step father, sir.

Where were you brought, towards what direction?

A
sir.

Towards the second floor of our house and to the place where we sleep,

Q
By the way, that house where you were living in Brgy. Tibig, Lipa City on
that date September 29, 1996, what kind of house is that?
A

It is made of Sawali, sir.

How about the flooring, how many floors does it have?

Three (3) steps sir.

What do you mean by three (3) steps?

Our stairs is made of three (3) steps, sir.

Page 133 of 158

Court:
From the ground floor?
A

Yes, sir.

What is located after going this stairs composed of three (3) steps?

That is the place where we sleep sir.

Q
After you [were] pulled upstairs to where you usually sleep by Eladio
Viernes, what did Eladio Viernes do to you after reaching that upper portion of
your house, if he did anything?
Atty. Dimaandal
Leading your Honor.
Court
Answer.
A

He undressed me sir.

What were you wearing that Eladio Viernes took of[f] from your body?

I was wearing a skirt which was my uniform sir.

What else i[f] any were taken of[f] from your body by Eladio Viernes?

My blouse, sando and my skirt and my panty sir.

Q
After Eladio Viernes took your clothing, after removing your clothing what
did Eladio Viernes do on your body?
A

He placed himself on top of me.

Q
any?

When Eladio Viernes placed himself on top of you, what was he wearing if

None sir.

Q
By the way, when Eladio Viernes pulled you to where you usually sleep,
what was his wearing at that time?
A

He was wearing pants, sir.

Page 134 of 158

Q
You said that after Eladio Viernes took of[f] all your clothing he went on
top of you you said he was already naked, what did he do with hi[s] pants before
he went on top of you?
A

He mashed [m]y breast sir.

What else did he do [to] you aside from mashing your breast?

He inserted his penis into my vagina.

Q
By the way, while he was mashing your breast, what were you doing if
you did anything?
A

I was fighting him back sir.

Q
What did Eladio Viernes do when you fought him back while he was
mashing your breast?
A

He was slapping me sir.

When he inserted his penis into your vagina, what did you feel?

Painful, sir.

Was Eladio Viernes able to actually insert his penis[?]

Atty. Dimaandal
Leading your honor.
Q
After Eladio Viernes inserted his private organ into your private organ,
what else did he do if anything more?
A

He did pumping motion, sir.

Q
For how long did he do this pumping motion, while his penis was inside
your vagina?
A

About three (3) minutes sir.

Q
After three (3) minutes when Eladio Viernes did this pumping motion while
his penis was inside your vagina, what else did he do if he did anything more?
A

He removed his private organ sir."16

We also quote the testimony of the victim regarding appellant's attempt to rape
her:
Page 135 of 158

"Q

When was the second time, after September 26, 1996?

In May 1997 but I do not remember the exact date sir.

Are you sure about the date?

Atty. Dimaandal
That is the answer of the witness.
Prosecutor
That's why I am asking, are you sure about the date?
A

May 19, 1997 sir.

Q
By the way, in [the] second incident [where] Eladio Viernes according to
you raped you again, where did this happen?
A

At Barangay Tibig, Lipa City.

Q
In what particular place in Bgy. Tibig were you raped for the second time
by Eladio Viernes?
Q

In the upper portion of our house at the place where we are sleeping sir.

The same place where the second rape was committed?

Yes, sir.

Around what time did this happen, this second rape happened?

Atty. Dimaandal
We make it of record that the witness cannot answer.
Prosecutor
The witness is thinking . . .
A

Noontime sir.

How did this happen?

He again pulled me sir.

By the way on that second occasion, where was your mother?

She was working sir.

Page 136 of 158

Q
You said that you were again pulled, where were you brought by Eladio
Viernes at the same time around?
A
sir.
Q
you?
A

The upper portion of our house and at the place where we were sleeping
After you were pulled by Eladio Viernes, what did Eladio Viernes do to
He undressed me sir.

Q
What kind of wearing apparel that you were wearing that were taken off
by Eladio Viernes on that same occasion?
A

I was wearing a skirt sir.

Q
After you were undressed by Eladio Viernes what did Eladio Viernes do to
you if he did anything?
A

He again placed himself on top of me sir.

Q
What was he wearing he placed himself on top of you if he was wearing
anything?
A

He was wearing pants sir.

When he placed himself on top of you, where was his pants?

He removed pants sir.

Q
When Eladio Viernes went on top of you, what did you [sic] do if he
anything more on the second time around?
A

He again mashed my breast sir.

What did you do when Eladio Viernes again mashed your breast?

I was fighting him back sir.

Q
What else did he do aside from mashing your breast, what did Eladio
Viernes do to you?
A

He was inserting his penis into my vagina sir.

Q
When Eladio Viernes was inserting his penis into your vagina, what did
you do?
A

I was struggling sir.

Page 137 of 158

Q
When you struggled, what happened to that effort of Eladio Viernes to
insert his penis into your vagina?
A

It was not inserted sir.

Q
What did Eladio Viernes do when he failed to insert his penis into your
vagina?
A

He just placed it between my thighs sir.

Q
After placing his penis between your thighs, what else did Eladio Viernes
do if he did anything?
Atty. Dimaandal
May we interrupt . . That after translations the answer of this witness. He just
place on my thigh, there was no vagina [sic].
Q
You said that Eladio Viernes placed his penis in your thighs, in what
particular part of your thighs?
Atty. Dimaandal
Leading
Court
Answer.
Interpreter
Witness pointing to the inner portion of her two thighs
Q
What did Viernes do after he put his penis between the inner portion of
your two thighs?
A
[H]e placed his penis between my thighs and he again did the pumping
motion sir."17
Pertinent portions of the testimony of complainant regarding her second
defilement in the hands of appellant read as follows:
"Q

Miss Witness, on August 18, 1997 around 12:00 noon where were you?

I was at home sir.

What were you doing?

Page 138 of 158

I just arrived from school sir.

Q
You said that you were in your house, where was this house located on
that date, August 18, 1997?
A

At Barangay Tibig sir.

Q
You said that you had just arrived from school, when you arrived in your
house in Brgy. Tibig, Lipa City on August 18, 1997 around 12 noon, whom did
you meet in your house if you met anybody there?
A

My step father sir.

Meaning Eladio Viernes?

Yes sir.

Q
Seeing Eladio Viernes in your house on that date August 18, 1997 around
12 noon, what did he do if he did anything upon seeing him or meeting you?
A

He instructed our companions in the house to clean the motor tricycle sir.

Q
After instructing your companions in your house to clean the motor
tricycle, what else did Eladio Viernes do, if he did anything more?
A

He asked me to fetch two (2) containers of water sir.

Q
By the way, these your companions of your house, [sic] who where given
the instruction by Eladio Viernes to clean the motor tricycle, who are these
companions [sic] of your house?
A

My two brothers and one step brother, sir.

Q
How old were these two brothers of yours and your one step brother who
were given the instruction by Eladio Viernes to clean the motor tricycle?
A
My step brother was 12 years old; my two brothers were six and 5 years
old sir.
Q

How far was this tricycle from your house?

Near the street sir.

Q
Around how many meters if you can calculate was this tricycle from your
house or can you point distance from the place where you are sitting now to any
place inside the court room?
Interpreter
Page 139 of 158

Witness pointing to the railings inside the Court room as their house and the
witness pointed to the western wall of the court room as the place where the
tricycle was to be around 7 meters sir.
Q
What did your two (2) brothers and one (1) step brother do if they did
anything more upon receiving the instruction from your step father Eladio Viernes
to clean the motor tricycle?
A

They followed the instruction of my step father to clean the tricycle sir.

Q
How about you when you were instructed by your step father to fetch two
(2) containers of water, what did you do?
A

I brought the water near the comfort room sir.

Q
After you brought the two (2) containers of water to the place were you
said a while ago, what did Eladio Viernes do to you if he did anything?
A

He followed me sir.

Q
After Eladio Viernes followed you, what did he do [to] you if he did
anything?
A

I was frightened sir.

Why?

Atty. Dimaandal
Not responsive your honor. I move to strike out the answer of the witness.'
Court
Continue.
Q

Why did you get frightened?

Because I felt that he will repeat the same thing sir.

What do you mean repeat the same thing?

He will again repeat raping me sir.

When you got frightened, what did you do?

I tried to struggle sir.

Why did you struggle, what was Eladio Viernes doing [to] you?
Page 140 of 158

A
He pulled up my skirt and when I was trying to go out from the comfort
room he was stopping me from going out sir.
Q
What happened to your struggle, to free from the hold of Eladio Viernes
when you were inside the comfort room?
A
I could not go out [o]f the comfort room because I was held by my step
father sir.
Q
After Eladio Viernes pulled up your skirt, what did he do with you if he did
anything more?
A

He pulled down my panty sir.

Up to what portion was that panty of yours pulled down?

Interpreter
Witness pointing to her ankle
Q
After Eladio Viernes pulled down your panty up to your ankle, what did he
do to you?
A

He was inserting his penis into my vagina, sir.

Q
What was your position in relation to Eladio Viernes when he was
inserting his penis into your vagina?
A

I was standing sir.

Q
How about Eladio Viernes, where was he in relation to you while he was
inserting his penis into your vagina?
A

He was at my back sir.

Q
What happened to this effort of Eladio Viernes in trying to insert his
private organ into your private organ?
A

It was inserted sir.

Q
You said that you were standing, what was the form or what was the
position of your body aside from the fact that you were standing when Eladio
Viernes was able to insert his penis into your vagina while he was at your back?
A

I was standing and I was struggling sir.

Page 141 of 158

Q
When Eladio Viernes was actually able to insert his penis into your
vagina, what was the position of your body aside from the fact that you were
standing?
A

I was standing with my knees bent sir.

Q
After Eladio Viernes was able to insert his, penis into your vagina while
you are in a standing position, how long was his penis inside your vagina?
A

About three (3) minutes sir."18

Catherine impressed the trial court as "a decent woman [who has] not been
shown to be of loose morals or one who goes out with different men any time of
the day or night."19 A rape victim who testifies in a categorical, straightforward,
spontaneous and frank manner and remains consistent is a credible
witness.20 It is well-entrenched that the trial court is in the best position to assess
the credibility of witnesses and their testimonies because of its unique
opportunity to observe them firsthand and to note their demeanor, conduct and
attitude on the stand.21 In the absence of any showing that its assessment is
flawed, an appellate tribunal is bound by it.
Despite the tender age of complainant, her accounts on direct and crossexamination were replete with details that jibed on material points. 22 Considering
her young age, it would have been highly improbable for her to fabricate a charge
so humiliating to her and her family, had she not been truly subjected to the
painful experience of sexual abuse.23
The moral ascendancy of appellant as the common-law husband of
complainant's mother takes the place of force and intimidation as an element of
rape,24 although the presence of such element is apparent from Catherine's
testimony.
Alibi and Corroboration
Appellant denies having raped Catherine on September 29, 1996, claiming she
was at her grandmother's house in San Guillermo, while he was outside his
house digging a toilet pit. Allegedly, in March 1997, he was on duty as a security
guard at the Smart Tower; and on August 18, 1997, he was busy the whole day
plying his tricycle route.
The trial court correctly disbelieved his alibi. Alibi and denial, if unsubstantiated
by clear and convincing evidence, are negative and self-serving evidence that
deserve no weight in law. They cannot be given greater evidentiary value over a
credible witness' testimony on affirmative matters. 25 Except for Lina Linatoc's
corroboration, the only evidence supporting the alibi and denial of appellant is his
Page 142 of 158

own say-so. And Lina happens to be his common-law wife; thus, her testimony is
necessarily suspect and cannot prevail over the testimonies of more credible
witnesses.26 Negative testimony cannot prevail over the offended party's positive
identification of the accused as her rapist.27
Finally, for alibi to prosper, it must be shown that the accused was in another
place at the time the crime was committed, and that it would have been
physically impossible for him to be at the scene of the crime at the time it was
committed.28 Such physical impossibility was not proven in the present case. The
Smart Tower where appellant worked as a security guard was located also in
Barangay Tibig, Lipa City, and was only a thirty-minute walk from his house. The
tricycle station, on the other hand, was only 1000 meters away. Note that he had
a motorized tricycle at his disposal. His alibi, therefore, is unworthy of credence.
Attempt to Settle the Case
Appellant strongly denies the prosecution's assertion that he attempted to settle
the case with complainant's family.
We remain unconvinced. Instead, we concur with the finding of the RTC that the
letter dated November 25, 1997 addressed to Orlando and Catherine Linatoc,
signed by appellant and delivered by Lina Linatoc was admissible evidence
against appellant. Perusal of the letter reveals that he attempted to bribe Orlando
with P150,000 or a house and lot and a promise of an additional P100,000 in
exchange for dropping the charges against him.29 Under Section 27, Rule 130 of
the Rules of Court, an offer of compromise by the accused may be received in
evidence as an implied admission of guilt.
Voluntary Surrender
Appellant pleads for leniency on account of his alleged voluntary surrender.
We disagree. The act of surrender must be spontaneous, accompanied by an
acknowledgment of guilt, or an intention to save the authorities the trouble and
the expense that search and capture would require. 30 Going to the police station
"to clear his name" does not show any intent of appellant to surrender
unconditionally to the authorities.31
Medicolegal Officer's Testimony
Appellant avers that the medicolegal officer who examined complainant admitted
being unsure of her findings.
We disagree with the assessment by appellant of the testimony of the
medicolegal officer. However, even if we discount the testimony of the latter,
complainant's testimony by itself can sustain the former's conviction. Medical
Page 143 of 158

examination is not an indispensable requirement, and its absence does not affect
the verdict of conviction, if sufficient evidence is presented to prove the crime
charged.32 When a rape complainant, especially one of tender age like Catherine,
says that she has been raped, she in effect says all that is necessary to show
that she has indeed been raped.
Civil Indemnity and Moral Damages
The Solicitor General takes issue with the damages awarded by the RTC. In the
assailed Order, it ordered appellant to pay P50,000 in civil indemnity, P10,000 in
moral damages and P5,000 in exemplary damages for every count of
consummated rape; and P25,000 in civil indemnity for the attempted rape.
Recent jurisprudence has increased the indemnification for the victim in a case of
consummated rape to P75,000 if the crime was committed with, or effectively
qualified by, any of the circumstances under which the death penalty is
authorized by the applicable amendatory laws. 33 Moral damages are pegged at
P50,000 without further need of pleading or proof.
Exemplary damages, on the other hand, are granted when an aggravating
circumstance, which is not offset by a mitigating circumstance, attended the
commission of the crime. In several cases, the relationship between the appellant
and the rape victim justifies the award of exemplary damages, as in this case. 34
Second
Modification of Penalties

Issue:

One day after the promulgation of the April 6, 1998 Decision, the prosecution
filed a Motion for Reconsideration seeking the imposition of the death penalty on
appellant for the two cases of consummated rape and reclusion temporal for the
attempted rape, in accordance with Section 11 of RA 7659. The prosecution
argued that the Motion would not place appellant in double jeopardy, because
"what is sought is just the imposition of the proper penalty as provided by law." 35
The trial court concurred with the prosecution and granted the Motion in the
assailed Order, saying that the Motion was unopposed and that there was no
violation of appellant's right against double jeopardy.36
We disagree. Conflicting decisions rendered over the years both allowing the
prosecution to seek the reconsideration of a conviction and prohibiting it
therefrom necessitate a review of the rule on the modification of judgments of
conviction. Early on, in People v. Ang Cho Kio,37 the Court, citing Article 2 of Rule
118 of the pre-1964 Rules of Court, held that the prosecution cannot move to
increase the penalty imposed in a promulgated judgment. Reopening the case
for the purpose of increasing the penalty as sought by the government would
Page 144 of 158

place the accused in double jeopardy. This ruling was followed in People v.
Pomeroy38 and People v. Ruiz.39
The 1964 amendment of the Rules, however, allowed the fiscal to move for the
modification or the setting aside of the judgment before it became final or an
appeal was perfected.40 Under this amendment, a judgment acquired finality and
the trial court lost jurisdiction only in the following cases: (1) after the 15-day
period to appeal lapsed,41 (2) when the defendant voluntarily submitted to the
execution of judgment, (3) when the defendant perfected the appeal, 42 (4) when
the accused withdrew the appeal, (5) when the accused expressly waived in
writing the right to appeal,43 and (6) when the accused filed a petition for
probation.44 Under this amendment, the trial court had plenary power to alter or
revise its judgment in accordance with the requirements of law and justice.
In 1985, Section 7 of Rule 120 was amended to include the phrase "upon motion
of the accused" effectively resurrecting the Ang Cho Kio ruling prohibiting the
prosecution from seeking a modification of a judgment of conviction. 45 As
amended, the provision was worded as follows:
"SEC. 7. Modification of judgment. A judgment of conviction may, upon motion
of the accused, be modified or set aside by the court rendering it before the
judgment has become final or appeal has been perfected. A judgment in a
criminal case becomes final after the lapse of the period for perfecting an appeal,
or when the sentence has been partially or totally satisfied or served, or the
accused has expressly waived in writing his right to appeal, or the accused has
applied for probation."
Under this Rule, a judgment of conviction, before it became final, could be
modified or set aside upon motion of the accused. 46 It obviously aims to protect
the accused from being put anew to defend himself from more serious offenses
or penalties which the prosecution or the court may have overlooked in the
original trial. It does not however bar him from seeking or receiving more
favorable modifications.
Significantly, the present Rules, as amended last year, retained the phrase "upon
motion of the accused," as follows:
"SEC. 7. Modification of judgment. A judgment of conviction may, upon motion
of the accused, be modified or set aside before it becomes final or before appeal
is perfected. Except where the death penalty is imposed, a judgment becomes
final after the lapse of the period for perfecting an appeal, or when the sentence
has been partially or totally satisfied or served, or when the accused has waived
in writing his right to appeal, or has applied for probation."
Page 145 of 158

Therefore, the assailed Order is erroneous and reversible. The trial court cannot
increase the penalties without the consent of the accused.
We close this Decision with an exhortation to the defense counsel to be more
circumspect in defending appellant and others similarly situated. Counsel should
have immediately objected to the Motion for Reconsideration in the trial court.
Because of this failure to take exception, the RTC judge meekly granted the relief
prayed for and condemned the accused, inter alia, to two death sentences.
Before this Court, counsel was again caught flat-footed by not raising the
erroneous basis of the assailed Order. We cannot disregard such serious lapse.
We urge counsel, as well as all the members of the bench and the bar, to be
more vigilant in protecting the rights of the accused especially those in
jeopardy of the death penalty and to keep abreast of legal developments.
Indeed, the learning process in law never ceases. 47 Utmost dedication to duty
and excellence is expected of every lawyer.
WHEREFORE, the appeal is hereby PARTIALLY GRANTED. The assailed Order
is ANNULLED and SET ASIDE, while the assailed Decision is AFFIRMED and
REINSTATED with the MODIFICATION that the awards of moral damages are
increased to P50,000 and those for exemplary damages to P25,000 for each
consummated rape, pursuant to current jurisprudence.48
SO ORDERED.
G.R. No. 159261

February 21, 2007

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
THE HONORABLE COURT OF APPEALS (FIFTEENTH DIVISION) AND
RAMON GALICIA y MANRESA, Respondents.
DECISION
QUISUMBING, J.:
This petition for certiorari assails the Court of Appeals Decision 1 dated May 22,
2003 in CA-G.R. CR No. 23605, entitled "People of the Philippines v. Ramon
Galicia y Manresa," on the ground that said decision was issued with grave
abuse of discretion. The decision reversed the trial courts conviction of herein
private respondent Ramon Galicia, and acquitted him.
The informations against the private respondent as one of the accused in two
cases for homicide before the Regional Trial Court (RTC) of Oriental Mindoro,
Branch 43, read:
Page 146 of 158

Criminal Case No. R-725

The undersigned accuses RAMON GALICIA, ROBERTO [U]RETA, JOJO
MANITO, NESTOR VICENTE, JUN BANANG and MERL[I]N VICENTE of the
crime of homicide committed as follows:
That on or about the 16th day of August, 1995, at 10:00 oclock in the evening,
more or less, in the Barangay of San Antonio, Municipality of Mansalay, Province
of Oriental Mindoro, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill and conspiring, confederating
and mutually aiding one another, did then and there wilfully, unlawfully and
feloniously attack, assault and stab one THELMO ABENIR thereby inflicting upon
the latter stab wounds on the different parts of his body resultant therewith
caused his death shortly thereafter.
Contrary to Article 249 of the Revised Penal Code.2
Criminal Case No. R-726
The undersigned accuses "JUN" BANANG, JOJO MANITO RAMON GALICIA,
[R]OBERTO [U]RETA, NESTOR VICENTE and MERL[I]N VICENTE of the crime
of homicide committed as follows:
That on or about the 16th day of August, 1995, at 10:00 oclock in the evening,
more or less, in the Barangay of San Antonio, Municipality of Mansalay, Province
of Oriental Mindoro, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill and conspiring, confederating
and mutually aiding one another, did then and there wilfully, unlawfully and
feloniously attack, assault and stab one RAMON ABENIR thereby inflicting upon
the latter stab wounds on the different parts of his body resultant therewith
caused his death shortly thereafter.
Contrary to Article 249 of the Revised Penal Code.3
On arraignment, all accused entered pleas of not guilty and thereafter a joint trial
ensued.1awphi1.net
The Office of the Solicitor General (OSG) summed up the prosecutions version 4
of the incident at bar, as follows:
At about 10:00 p.m. on August 16, 1995, Ramon Abenir (Ramon) arrived at the
house of his parents, Thelmo and Dolores, in San Antonio, Mansalay, Oriental
Mindoro. Once inside, Ramon shouted "Lumabas kayo Kapitan, Barangay
Tanod."5 Someone who was later identified as Brgy. Captain Ramon Galicia
(Galicia) retorted, "Ramon, lumabas ka diyan, labas, babarilin kita."6 Thereafter,
Galicia fired two shots, destroyed the perimeter fence, broke the kitchen door
Page 147 of 158

and entered the house.7 A fight ensued between Ramon and Galicia. The two
wrestled for possession of a bladed weapon. Galicia pulled Ramon towards the
bed where the spouses Thelmo and Dolores were seated. Dolores saw Roberto
Ureta, a companion of Galicia, stab Ramon. According to Dolores, her husband
and she were only an arms length away8 and they witnessed what happened.
Another companion of Galicia, namely Vicente "Jun" Banang, Jr., also entered
the house and then dragged Thelmo towards the back of the house. 9 Ureta joined
Banang in the assault on Thelmo, and banged Thelmos head against the wall of
the house. And then, uttering "Kunsintidor sa iyong anak," Ureta stabbed
Thelmo.10
At about the same time, Audie Abenir, the brother of Ramon, testified that he was
about ten meters away from their parents house. He also heard his brother,
Ramon, shouting, "Mga tanod, Kapitan, lumabas kayo." Thereafter, according to
Audie, he saw Galicia arrived with some men. He saw Galicia fired shots and call
out, "Ramon, lumabas ka, babarilin kita." Suddenly, he heard a commotion from
his parents kitchen and heard his mother saying, "[Roding], tulungan mo kami,
pinasok kami nina Kapitan." 11 From his childrens room, Audie said, he witnessed
his brother Ramon and Galicia fighting. He also saw Ureta in the kitchen. He
sought help, and with SPO2 Nolito "Noli" Maning and Felix Maquirang, the
responding policemen, they went to his parents house where he saw his brother
Ramon, lying near the front door with a chest wound, and his father, Thelmo,
clutching his intestines that were protruding from an open wound as he sat by
Ramons head.12 Maning rushed Ramon and Thelmo to the hospital. Audie also
testified that he had known both Galicia and Ureta from childhood.
Thelmos son and Ramons brother, Felipe, testified that while attending to his
father in the hospital, on August 24, 1995, his father told him in the vernacular,
"Ping, may sasabihin ako sa iyo, iyong pakatandaan at huwag mong
kalilimutan."13 Felipe got a pen and paper and wrote the names enumerated by
his father as those who entered their house "Kap. Galicia, Berting Ureta, Jun
Banang, Nestor Vicente, Merlin Vicente, Jojo Manito." A few minutes later,
Thelmo died.14
Dr. Moises Serdoncillo, medico-legal officer of the Calapan Provincial Hospital,
unsuccessfully operated on both Ramon and Thelmo; both father and son died.
The medical certificate issued by Dr. Serdoncillo showed that Ramon sustained a
stab wound which penetrated the middle portion of his abdomen. The cause of
Ramons death was loss of blood and infection. Thelmos medical certificate
showed that he sustained a stab wound at the left portion of his abdomen which
injured his spleen and traversed the colon up to the posterior abdominal wall.
Thelmo also had a hematoma at the back, caused by something that hit him.
Page 148 of 158

According to the medical certificate, Thelmo died of cardiorespiratory arrest due

to myocardial infarction secondary to stab wound.
The defenses version15 of the incident was culled mainly from the testimonies of
accused Galicia, Jojo Manito and Merlin Vicente, as follows:
Galicia testified that at around 8:45 p.m. on August 16, 1995, while he was in his
sister Benedictas house, he saw Ramon in front of the Barangay Hall located
about five meters from Benedictas house. Ramon was shouting, "Kapitan, mga
Barangay Tanod, lumabas kayo riyan. Kayoy aking papatayin!" 16 Galicia
approached Ramon and told him to go home. Ramon relented, and Galicia said
he even accompanied Ramon home. Ramon rushed upstairs, straight to the
window and started throwing stones, hitting Galicia in the knee. According to
Galicia, as he walked away, he heard the continued shouts of Thelmo and his
wife calling their sons, Audie and Felix, to help. He tried to ignore Thelmos wife
calling, but when he heard Ramon shouting, "Kapitan, huwag kang umalis. Ikaw
ay aking papatayin,"17 he turned towards the kitchen of the house. He was by the
broken fence and about two meters from the door of the kitchen when he told
Ramon, "Tukayo, huwag kang lumaban. Maraming tao dito, baka ka
madisgrasiya."18 By then, several persons were milling in front of the gate. But,
Ramon suddenly came out of the kitchen and struck him with a scythe. He
parried the blow with both hands and they grappled for the scythe. The scythe hit
him in his arms and body. Suddenly, Ramon fell and his head hit the doorknob of
the kitchen door. They continued grappling and Galicia was hit in the nape. 19 At
this point, Galicia shouted for assistance, "Mga kasama, kung meron man diyan
sa labas, akoy may tama!"20
Accused Jojo Manito, a barangay tanod who heard the call, approached the
protagonists. Manito even demonstrated during trial the position of the two
protagonists as they grappled for the scythe. He said that as he entered, Galicia
was crouching, holding Ramons hands. Ramon, still holding on to the scythe,
was lying underneath Galicia. Manito said he tried to grab the scythe from
Ramon but he was hit on his left hand near the thumb, upper left forearm, and on
his right hand, near the thumb. Manito recalled he had a tear gas canister in his
pocket and told Galicia about it. After instructing Galicia to cover his face with a
towel, Manito sprayed tear gas on Ramon, making Ramon dizzy. Galicia and
Manito left. At the gate, they met accused Merlin Vicente, who was about to enter
the yard. As Galicia told Merlin that they were on their way to get police
assistance to bring Ramon to the police station, someone told them that Ureta
had already called the police. Merlin helped Galicia board a tricycle. Galicia with
Manito and Banang went to the Medicare Clinic. Manito said that before they left,
he noticed several persons enter the house to assist Ramon. He said he did not
see accused Ureta and Nestor Vicente during the incident. 21
Page 149 of 158

Accused Nestor Vicente interposed the defense of alibi, 22 saying he was out
fishing with Robert Alunsagay and Abelio* Villanueva from 5:00 p.m. until 10:00
p.m. on August 16, 1995. Later, they sold their catch to Carmen Magadia whose
house was about half a kilometer from the Abenirs. Magadia 23 and Villanueva24
were both called as witnesses to support Nestors alibi.
Merlin Vicente testified that he was in his house which is about forty meters from
the house of the Abenirs, at around 10:00 p.m. on August 16, 1995. 25 As he
rushed to the Abenirs house, he heard shouts of "Tabang kayo mga
kapitbahay."26 On the way, he said he met a certain Norma Cunanan. When they
reached Thelmos house, he saw a bloodied Galicia, aided by Manito, on the way
out of the compound. He helped Manito guide Galicia towards a tricycle. 27 He
also testified that he did not see Ureta nor Thelmo all the time that he was at the
gate.28
Dr. Domingo Asis corroborated the testimony of Galicia. He said he
Galicia at around 9:30 p.m. on August 16, 1995. He described the eleven
wounds Galicia sustained.29 He also said that the injuries sustained by
could have been inflicted while grappling for possession of a sharp
instrument like a scythe.30 He added that he treated a companion of
whose name he could not recall.31

treated
incised
Galicia
bladed
Galicia

Accused Ureta and Banang jumped bail during trial and were tried in absentia.

32

On August 19, 1999, the RTC rendered a joint decision. The decretal portion of
the said decision reads:
WHEREFORE, judgment is hereby rendered as follows:
(a) In Criminal Case No. R-726, accused Ramon Galicia y Manresa and accused
Roberto [U]reta y Ortega are hereby pronounced GUILTY of the crime of
Homicide with the aggravating circumstance of dwelling which was off-setted
(sic) by the mitigating circumstance of sufficient provocation and each of them is
hereby sentenced to an indeterminate penalty of imprisonment ranging from
eight (8) years and one (1) day of prision mayor as MINIMUM to fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal medium as
MAXIMUM and for them to pay in solidum the heirs of the victim of Ramon
Abenir, the sum of P50,000.00 as compensatory damages and the additional
sum of P50,000.00 as moral damages;
(b) The rest of the accused in Criminal Case No. R-726 namely Joseph a.k.a. as
Jojo Manito y Galicia, Nestor Vicente y Gervacio, Vicente "Jun" Banang, Jr. y
Buncag and Merl[i]n Vicente y Buncag are ACQUITTED for insufficiency of
evidence and the bailbonds posted by them are hereby ordered discharged;
Page 150 of 158

(c) In accordance with Administrative Circular No. 12-94 entitled "Amendments to

Rule 114 of the 1985 Rules of Criminal Procedure more particularly paragraph a,
Section 2 of Rule 114 to the effect that the bail shall be effective upon approval
unless sooner cancelled until the promulgation of judgment by the Regional Trial
Court, the bail bond posted by the accused Ramon Galicia y Manresa is
cancelled and he is ordered committed to the Provincial Jail. Pursuant to the
ruling of the Honorable Supreme Court in Jose T. Obosa vs. Court of Appeals, et
al., G.R. No. 114350, prom. January 16, 1997 that the grant of bail even in noncapital offenses after conviction of the accused by the Regional Trial Court is now
a matter of discretion and it appearing that none of the circumstances mentioned
in paragraph 3, Section 5, Rule 114 of the Revised Rules of Criminal Procedure
which could preclude the grant of bail is present, said accused is allowed to post
bail which is hereby fixed at P90,000.00 should he decide to appeal from the
decision for his provisional liberty during the pendency of the appeal;
(d) Let an alias warrant of arrest be issued against accused Roberto [U]reta y
Ortega who has jumped bail during the trial of the case.
Upon the other hand, in Criminal Case No. R-725, the court pronounced
judgment as follows:
(a) Accused Vicente "Jun" Banang, Jr. y Buncag and Roberto [U]reta y Ortega
are hereby found GUILTY of the crime of Homicide with the aggravating
circumstance of dwelling without any mitigating circumstance and each of them is
hereby sentenced to an indeterminate penalty of imprisonment ranging from
twelve (12) years of prision mayor to seventeen (17) years, four (4) months and
one (1) day of reclusion temporal maximum as MAXIMUM and for them to pay in
solidum the heirs of Thelmo Abenir the sum of P50,000.00 as compensatory
damages and the sum of P50,000.00 as moral damages;
(b) The rest of the accused in R-725 namely Ramon Galicia y Manresa, Joseph
"Jojo" Manito y Galicia, Nestor Vicente y Gervacio and Merl[i]n Vicente y Buncag
are ACQUITTED for insufficiency of evidence and the bail bonds posted by them
are discharged;
(c) Let an alias warrant of arrest be issued against accused Vicente "Jun"
Banang, Jr. y Buncag and Roberto [U]reta y Ortega.
No award of actual damages could be made in both cases for failure of the
prosecution to establish the factual bases for entitlement to said damages.
For the convicted accused to pay the cost of suit.
SO ORDERED.33
Page 151 of 158

Galicia appealed his conviction for the death of Ramon. He averred that the trial
court erred in finding him guilty of homicide with Ureta, considering that the
prosecution failed to prove that he and Ureta conspired to kill Ramon; and that
the prosecutions evidence showed it was only Ureta who stabbed Ramon.
The Court of Appeals acted favorably on Galicias appeal and held:
WHEREFORE, premises considered, the appeal is GRANTED and judgment is
hereby rendered reversing the assailed Decision and ACQUITTING accusedappellant RAMON GALICIA Y MANRESA of the crime charged. The civil liability
pronounced by the Decision as against him is hereby deleted. The bailbond
posted by accused-appellant is ordered cancelled.
SO ORDERED.34
In this petition, the OSG asserts:
I.
PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION BY HOLDING THAT
THE TRIAL COURTS FINDING OF CONSPIRACY BETWEEN PRIVATE
RESPONDENT AND ROBERTO [U]RETA HAD NO LEGAL BASIS IN
DISREGARD OF THE PLAIN EVIDENCE EXTANT IN THE RECORD OF THIS
CASE THAT PROVED THE PRESENCE OF CONSPIRACY TO INFLICT
PHYSICAL HARM ON RAMON ABENIR, MAKING THE ACT OF ONE, THE ACT
OF ALL.
II.
PUBLIC RESPONDENT GRAVELY ERRED IN HOLDING THAT BASED ON
THE MEDICAL FINDING, THE VICTIM RAMON ABENIR SUFFERED ONLY
ONE FATAL STAB WOUND AS NO AUTOPSY REPORT WAS CONDUCTED.
III.
PUBLIC RESPONDENT GRAVELY ERRED IN NOT TAKING INTO
CONSIDERATION THELMO ABENIRS DYING DECLARATION; ASSUMING
ARGUENDO THAT THELMO ABENIRS STATEMENT IS NOT ADMISSIBLE AS
AN ANTE MORTEM DECLARATION, IT MAY NONETHELESS BE
CONSIDERED AS PART OF THE RES GESTAE, AS IT WAS MADE
IMMEDIATELY AFTER A STARTLING OCCURRENCE AND WHEN THE VICTIM
DID NOT HAVE TIME TO CONTRIVE A FALSEHOOD.
IV.
Page 152 of 158

PUBLIC RESPONDENT GRAVELY ERRED IN ACQUITTING PRIVATE

RESPONDENT BECAUSE THE PROSECUTION WAS ABLE TO PROVE
BEYOND REASONABLE DOUBT THE GUILT OF PRIVATE RESPONDENT
RAMON GALICIA AND ROBERTO [U]RETA AND THEIR CONSPIRACY TO
INFLICT PHYSICAL INJURIES THAT LED TO RAMON ABENIRS DEATH.35
In sum, the main issues for our resolution are: (1) Did the Court of Appeals
commit grave abuse of its discretion when it declared there was no conspiracy to
kill Ramon? (2) Did the appellate court err in its appreciation of the medico-legal
report and ante mortem declaration as res gestae, and then in concluding that
the guilt of Galicia had not been proven beyond reasonable doubt?
Let us now focus on the matter of conspiracy. The OSG contends that conspiracy
on the part of Galicia and his companions to kill Ramon was apparent from the
following events and circumstances:
(1) Before the incident, Ramon and Galicia had a heated argument and Ramon
threatened to kill Galicia and his companions, giving reason for Galicia and his
companions to conspire to enter the house of the Abenirs and attack Ramon.
(2) Before breaking into the house, Galicia showed his intention to shoot Ramon
when he shouted, "Ramon, lumabas ka diyan. Labas. Babarilin kita."
(3) Galicia was the leader and active participant in the attack on Ramon and not
just a passive bystander.
(4) When Galicia was hurt, he called on his companions for help, prompting
Manito to use a tear gas that made Ramon helpless until Ureta stabbed Ramon.
The OSG argues that even if it was not Galicia who stabbed Ramon but Ureta,
Galicia as co-conspirator was as guilty because it was he who threatened
Ramon, destroyed the perimeter fence, and broke the kitchen door. In short, he
was the leader of the attack on Ramon.
Further, the OSG challenges the reliance of the appellate court on the medical
certificate showing that Ramon sustained only one stab wound contrary to
Doloress testimony that her son was stabbed twice. The OSG points out that the
medical certificate was issued only for identifying the cause of Ramons death
and not to identify all the injuries. The OSG stresses that Dr. Serdoncillo admitted
he did not conduct an autopsy on Ramon because while operating on the victim,
he already knew the cause of death.
In addition, the OSG points out that the appellate court overlooked the dying
declaration of Thelmo identifying his assailants. According to the OSG, at the
Page 153 of 158

very least, Thelmos statement should have been considered by the appellate
court as a dying declaration.
Lastly, the OSG concludes that after the prosecution had shown the acts and
conduct of Galicia before, during and after the incident as constituting
complicity to attack Ramon, Galicia should be held responsible for the death of
Ramon in accordance with Article 4 of the Revised Penal Code. Article 4 reads:
ART. 4. Criminal liability. Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act done be
different from that which he intended.
2. By any person performing an act which would be an offense against persons
or property, were it not for the inherent impossibility of its accomplishment or on
account of the employment of inadequate or ineffectual means.
In his Comment, Galicia contends that there was no grave abuse on the part of
the Court of Appeals, and adds that any mistake or error in the appreciation of
facts, evidence or law is merely an error of judgment and not an error of
jurisdiction, and hence, not a subject of a petition for certiorari.
Most significantly, the defense for private respondent points out that to give due
course to the instant petition and review the acquittal by the appellate court of
Galicia would constitute double jeopardy.
Thus, before tackling the two-pronged issues raised by petitioner, we must
address first the threshold issue raised by private respondent: Would a review of
the acquittal of Galicia constitute double jeopardy?
Section 21, Article III of the 1987 Constitution states:
Section 21. No person shall be twice put in jeopardy of punishment for the
same offense. If an act is punished by a law and an ordinance, conviction
or acquittal under either shall constitute a bar to another prosecution for
the same act.
Section 7, Rule 117 of the Revised Rules on Criminal Procedure provides:
SEC. 7.Former conviction or acquittal; double jeopardy. When an accused
has been convicted or acquitted, or the case against him dismissed or otherwise
terminated without his express consent by a court of competent jurisdiction, upon
a valid complaint or information or other formal charge sufficient in form and
substance to sustain a conviction and after the accused had pleaded to the
charge, the conviction or acquittal of the accused or the dismissal of the case
shall be a bar to another prosecution for the offense charged, or for any attempt
Page 154 of 158

to commit the same or frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense charged in the former complaint
or information.
However, the conviction of the accused shall not be a bar to another prosecution
for an offense which necessarily includes the offense charged in the former
complaint or information under any of the following instances:
(a) the graver offense developed due to supervening facts arising from the same
act or omission constituting the former charge;
(b) the facts constituting the graver charge became known or were discovered
only after a plea was entered in the former complaint or information; or
(c) the plea of guilty to the lesser offense was made without the consent of the
prosecutor and of the offended party except as provided in section 1 (f) of Rule
116.
In any of the foregoing cases, where the accused satisfies or serves in whole or
in part the judgment, he shall be credited with the same in the event of conviction
for the graver offense.
As we have previously held in People v. Serrano, Sr.:36 A verdict of acquittal is
immediately final and a reexamination of the merits of such acquittal, even in the
appellate courts, will put the accused in jeopardy for the same offense. The
finality-of-acquittal doctrine has several avowed purposes. Primarily, it prevents
the State from using its criminal processes as an instrument of harassment to
wear out the accused by a multitude of cases with accumulated trials. It also
serves the additional purpose of precluding the State, following an acquittal, from
successively retrying the defendant in the hope of securing a conviction. And
finally, it prevents the State, following conviction, from retrying the defendant
again in the hope of securing a greater penalty.37 In People v. Velasco,38 we
stressed that an acquitted defendant is entitled to the right of repose as a direct
consequence of the finality of his acquittal. Hence, it cannot be disputed that the
verdict of the Court of Appeals acquitting Ramon Galicia is now final and
irreviewable.39
This is not to say that the constitutional guarantee against double jeopardy is
without exceptions. For there are two recognized exceptions: (1) Where there
has been deprivation of due process and where there is a finding of a mistrial, 40
or (2) Where there has been a grave abuse of discretion under exceptional
circumstances.41 However, in this case, we find that the exceptions do not exist.
Firstly, was there a deprivation of due process, or a mistrial? The records show
that during the trial, both parties had more than sufficient occasions to be heard
Page 155 of 158

and to present their evidence. The same is true during the appeal. The State
represented by the prosecution had not been deprived of a fair opportunity to
prove its case.
Second, has there been a grave abuse of discretion by the Court of Appeals?
Grave abuse of discretion implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction or, in other words, where the
power is exercised in an arbitrary manner by reason of passion, prejudice, or
personal hostility, and it must be so patent or gross as to amount to an evasion of
a positive duty or to a virtual refusal to perform the duty enjoined by law, or to act
at all in contemplation of law.42 Certiorari alleging grave abuse of discretion is an
extraordinary remedy. Its use is confined to extraordinary cases wherein the
action of the inferior court is wholly void. 43 Its aim is to keep the inferior court
within the parameters of its jurisdiction or to prevent it from committing such a
grave abuse of discretion amounting to lack or excess of jurisdiction. 44 No grave
abuse of discretion may be attributed to the court simply because of its alleged
misappreciation of facts and evidence.45 While certiorari may be used to correct
an abusive acquittal, the petitioner in such extraordinary proceeding must clearly
demonstrate that the lower court blatantly abused its authority to a point so grave
as to deprive it of its very power to dispense justice. 46
In its decision, the Court of Appeals, said that it overturned Galicias conviction
because the trial court held that Galicia was in no way involved in Thelmos
death, and only Ureta and Banang conspired to kill Thelmo. The Court of Appeals
explained that the finding of the trial court, now final, should be upheld and
applied to Galicia insofar as the death of Ramon was concerned. The Court of
Appeals went on to say that the deaths of Ramon and Thelmo happened on the
same occasion, in the same place and involved the same participants; that there
was a continuous unbroken chain of events which meant that the act and
intention of each participant could not be split into segments/phases such that
there was conspiracy as to one aspect but none in the other aspect. 47 It also held
that there is no such thing as partial conspiracy.
The Court of Appeals also observed that the testimonies of the prosecution
witnesses lacked credibility and were filled with inconsistencies. 48 Among them,
(1) Dolores and Audie both claimed that Galicia was armed with a gun and fired
two consecutive shots, but surprisingly, the latter did not use his gun when he
fought with Ramon. (2) Ureta stabbed Ramon, yet, Galicia did not finish off
Ramon by shooting him. (3) After Ramon was stabbed, Dolores claimed that all
the accused ganged up on her son, and yet, she could not specifically say who
kicked, boxed or strangled Ramon. (4) Dolores categorically testified that Ureta
stabbed Ramon twice even pointing out that the first stab was at the right
shoulder and the second at the left chest, but, the medical certificate showed that
Page 156 of 158

Ramon sustained only one wound. Lastly, (5) Dolores said that when Galicia fired
his gun, he and his companions were already inside their house, yet, Audie told
the court he heard two shots before the group of Galicia arrived. 49 The Court of
Appeals observed that Ureta was seemingly on a rampage, stabbing Ramon first
and then Thelmo. It noted that Ureta did not even see what happened to Galicia
who was still locked in a fight with Ramon.50
The Court of Appeals concluded that the RTC based its decision on the
weakness of the defense evidence, rather than on the strength of the
prosecutions. It went on to say,
there is no evidence to show unity of purpose and design between appellant
and accused [U]reta. The fact that the fight between appellant and Ramon
commenced prior to the actual stabbing of the latter by [U]reta does not of itself
demonstrate concurrence of wills or unity of purpose and action, in the same
manner that the fact that the assault on Ramon was carried out by accused
[U]reta while appellant was grappling with Ramon does not conclusively show
that appellant knew that [U]reta intended to stab, much less kill the victim.
Simultaneity, it has been held, would not itself demonstrate the concurrence of
will or the unity of action and purpose that could be a basis for collective
responsibility of two or more individuals. Thus, contrary to the findings of the trial
court, appellant and accused [U]reta acted independently of, not in conspiracy
with each other. Appellant fought with Ramon in response to the latters
challenge to a fight. And while the two were fighting and grappling for the
possession of a scythe, accused [U]reta stabbed Ramon.51
Finally, the Court of Appeals rejected the trial courts finding that the conspiracy
between Ureta and Galicia was strengthened by the formers decision to jump
bail and go into hiding, for being contrary to the doctrine of res inter alios acta.
According to the Court of Appeals, this conclusion of the court a quo partakes
more of wild conjectures and speculations which have no probative value
whatsoever since there was no evidence that the escape of Ureta was with the
knowledge, much less consent of Galicia.52
In our considered view, the conclusions arrived at by the Court of Appeals cannot
by any measure be characterized as capricious, whimsical nor arbitrary, to
constitute grave abuse of discretion under Rule 65. While it may be argued that
there have been instances where the appreciation of facts might have resulted
from possible lapses in evaluation of the evidence, nothing therein detracts from
the fact that relevant and material evidence was scrutinized, considered and
evaluated.
We note that while the OSG alleges grave abuse of discretion as the core of its
petition, the issues it raises concern errors of judgment, not errors of jurisdiction,
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which is tantamount to converting the petition for certiorari into an appeal,

contrary to the express injunction of the Constitution, the Rules of Court, and
prevailing jurisprudence.53 Conformably then, we need not embark upon review
of the factual and evidentiary issues raised by the OSG, as these are not within
the realm of the present petition.
WHEREFORE, the instant petition is DISMISSED for lack of merit. The acquittal
of herein private respondent by the Court of Appeals in its Decision dated May
22, 2003 in CA-G.R. CR No. 23605, entitled "People of the Philippines v. Ramon
Galicia y Manresa," is AFFIRMED. No pronouncement as to costs.
SO ORDERED.

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