Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-13315

April 27, 1960

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BUENAVENTURA BULING, defendant-appellant.
Assistant Solicitor General Esmeraldo Umali and Solicitor Emerito M. Salva for
appellee.
Francisco A. Puray for appellant.
LABRADOR, J.:
Appeal from a judgment of the Court of First Instance of Leyte, Hon. Gaudencio
Cloribel, presiding, finding the accused Buenaventura Buling guilty of serious
physical injuries and sentencing him to imprisonment of four months of arresto
mayor, as minimum, to one year of prision correccional, as maximum, and to
indemnify the offended party.
The following uncontroverted facts appear in the record: On December 7, 1956, the
accused was charged in the Justice of the Peace Court of Cabalian, Leyte, with the
crime of less serious physical injuries for having inflicted wounds on complaining
witness Isidro Balaba, which according to the complaint would "require, medical
attendance for a period from 10 to 15 days and will incapacitate the said Isidro
Balaba from the performance of his customary labors for the game period of time."
The accused pleaded guilty to the complaint and was on December 8, 1957 found
guilty of the crime charged and sentenced to 1 month and 1 day of arresto
mayor and to pay damages to the offended party in the sum of P20.00, with
subsidiary imprisonment in case of insolvency. On the same day he began to serve
his sentence and has fully served the same.
However, Balaba's injuries did not heal within the period estimated, and so on
February 20, 1957, the Provincial Fiscal filed an information against the accused
before the Court of First Instance of Leyte, charging him of serious physical
injuries. The information alleges that the wounds inflicted by the accused on Isidro
Balaba require medical attendance and incapacitated him for a period of from 1

months to 2 months. After trial the accused was found guilty of serious physical
injuries and sentenced in the manner indicated in first paragraph hereof. This is
the decision now sough to be set aside and reversed in this appeal.
The only question for resolution by this Court whether the prosecution and
conviction of Balaba for less serious physical injuries is a bar to the second
prosecution for serious physical injuries.
Two conflicting doctrines on double jeopardy have been enunciated by this Court,
one in the cases of People vs.Tarok, 73 Phil., 260 and People vs. Villasis, 81 Phil.,
881, and the other, in the cases of Melo vs. People, 85 Phil., 766,
People vs. Manolong, 85 Phil., 829 and People vs. Petilla, 92 Phil., 395. But in
Melo vs. People, supra, we expressly repealed our ruling in the case of
People vs. Tarok, supra, and followed in the case of People vs.Villasis, supra. In
the Melo vs. People case, we stated the ruling to be that:
. . . Stating it in another form, the rule is that "where after the first
prosecution a new fact supervenes for which the defendant is responsible,
which changes the character of the offense and, together with the facts
existing at the time, constitutes a new and distinct offense" (15 Am. Jur.,
66), the accused cannot be said to be in second jeopardy if indicted for the
new offense. (85 Phil., 769-770).
Do the facts in the case at bar justify the application of the new ruling? In other
words, has a new fact supervened, like death in the case of Melo vs. People, which
changes the character of the offense into one which was not in existence at the time
the case for less serious physical injuries was filed? We do not believe that a new
fact supervened, or that a new fact has come into existence. What happened is that
the first physician that examined the wounds of the offended party certified on
December 10, 1956 that the injury was as follows: "wound, incised, wrist lateral,
right, 3/4 inch long, sutured" and that the same would take from 10 to 15 days to
heal and incapacitated (the wounded man) for the same period of time from his
usual work (Exh. 3). It was on the basis of this certificate that on December 8,
1956, defendant-appellant was found guilty of less serious physical injuries and
sentenced to imprisonment of 1 month and 1 day of arresto mayor, etc.
But on January 18, 1957, another physician examined the offended party, taking an
X-ray picture of the arm of the offended party which had been wounded. The
examination discloses, according to the physician, the following injuries:

Old stab wound 4 inches long. With infection, distal end arm, right. X-ray
plate finding after one month and 12 days Fracture old oblique,
incomplete distal end, radius right, with slight calus. (Exh. "E").
and the certification is to the effect that treatment will take from 1 months to 2
months barring complications.
Counsel for the appellant claims that no fact had supervened in the case at bar, as a
result of which another offense had been ommitted. It is argued that the injury and
the condition thereof was the same when the first examination was made on
December 10, 1956, as when the examination was made on January 18, 1957, and
that if any new fact had been disclosed in the latter examination failure of this new
fact to be disclosed in the previous examination may be attributed to the
incompetence on the part of the examining physician. We find much reason in this
argument. What happened is no X-ray examination of the wounded hand was
made during the first examination, which was merely superficial. The physician
who made the first examination could not have seen the fracture at the distal end
of the right arm, and this could only be apparent or visible by X-ray photography.
Under the circumstances above indicated, we are inclined to agree with the
contention made on behalf of appellant that no new supervening fact has existed or
occurred, which has transformed the offense from less serious physical injuries to
serious physical injuries.
But the Solicitor General cites the case of People vs. Manolong, supra, and argues
that our ruling in said case should apply to the case at bar, for the reason that in
the said case the first crime with which the accused was charged was less serious
physical injuries and the second one was serious physical injuries and yet we held
that there was no jeopardy. We have carefully examined this case and have found
that the first examination made of the offended party showed injuries which would
take from 20 to 30 days to heal, whereas the subsequent examination disclosed
that the wound of the offended party would require medical attendance and
incapacitate him for labor for a period of 90 days, "causing deformity and the loss
of the use of said member". No finding was made in the first examination that the
injuries had caused deformity and the loss of the use of the right hand. As nothing
was mentioned in the first medical certificate about the deformity and the loss of
the use of the right hand, we presume that such fact was not apparent or could not
have been discernible at the time the first examination was made. The course (not
the length), of the healing of an injury may not be determined before hand; it can
only be definitely known after the period of healing has ended. That is the reason
why the court considered that there was a supervening fact occurring since the
filing of the original information.

But such circumstances do not exist in the case at bar. If the X-ray examination
discloses the existence of a fracture on January 17, 1957, that fracture must have
existed when the first examination was made on December 10, 1956. There is,
therefore, no now or supervening fact that could be said to have developed or
arisen since the filing of the original action, which would justify the application of
the ruling enunciated by us in the cases of Melo vs. People and People vs.
Manolong, supra. We attribute the new finding of fracture, which evidently
lengthened the period of healing of the wound, to the very superficial and
inconclusive examination made on December 10, 1956. Had an X-ray examination
taken at the time, the fracture would have certainly been disclosed. The wound
causing the delay in healing was already in existence at the time of the first
examination, but said delay was caused by the very superficial examination then
made. As we have stated, we find therefore that no supervening fact had occurred
which justifies the application of the rule in the case of Melo vs. People and People
vs. Manolong, for which reason we are constrained to apply the general rule of
double jeopardy.
We take this opportunity to invite the attention of the prosecuting officers that
before filing informations for physical injuries, thorough physical and medical
examinations of the injuries should first be made to avoid instances, like the
present, where by reason of the important Constitutional provision of double
jeopardy, the accused can not be held to answer for the graver offense committed.
The decision appealed from is hereby reversed. The judgment of conviction is set
aside and the defendant-appellant acquitted of the charge of serious physical
injuries. Without costs.

that the victim did suffer a greater injury than was at first ascertained. The lower
court, presided by the Honorable Judge Nestor B. Alampay, considering that there
was no, supervening fact that would negate the defense of double jeopardy,
sustained the motion to quash in an order of June 21, 1968. The People appealed.
As the order complained of is, fully supported by the latest authoritative ruling of
this Tribunal, People v. Buling, 2we have to affirm.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-29270 November 23, 1971

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
RODRIGO YORAC, defendant-appellee.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General

In the brief for the People of the Philippines, it was shown that the accused Yorac
was charged with slight physical injuries before the City Court of Bacolod, the
offended party being a certain Lam Hock who, according to the medical certificate
issued in April 10, 1968 by a Dr. Rogelio Zulueta, a resident physician of the
Occidental Negros Provincial Hospital, was confined "since April 8, 1968 up to the
present time for head injury." 3 Then came a plea of guilty by the accused on April
16, 1968 resulting in his being penalized to suffer ten days of arresto menor. He
started serving his sentence forthwith. On April 18, 1968, the provincial fiscal filed
an information, this time in the Court of First Instance of Negros Occidental,
charging the same defendant with frustrated murder arising from the same act
against the aforesaid victim Lam Hock upon another medical certificate dated
April 17, 1968 issued by the same Dr. Zulueta. In the medical certificate of April 17,
1968, it was made to appear that the confinement of the offended party in the
hospital was the result of: "1. Contusion with lacerated wound 4 inches parietooccipital region scalp mid portion. 2. Cerebral concussion, moderately severe,
secondary." 4 Moreover, it further contained a statement that the X-ray finding did
not yield any "radiographic evidence of fracture." The healing period barring
complications, was declared to be from eighteen to twenty-one days. 5

Pacifico P. de Castro and Solicitor Pedro A. Ramirez for plaintiff- appellant.

Vicente F. Delfin for defendant-appellee.

FERNANDO, J.:
The constitutional right not to be put twice in jeopardy for the same offense 1 was
the basis for a motion to quash filed by the accused, now appellee, Rodrigo Yorac.
He was prosecuted for frustrated murder arising allegedly from having assaulted,
attacked, and hit with a piece of wood the offended party, for which he had been
previously tried and sentenced for slight physical injuries, his plea being one of
guilt. The later information for frustrated murder was based on a second medical
certificate after the lapse of one week from the former previously given by the same
physician who, apparently, was much more thorough the second time, to the effect

Afterwards, a motion to quash was filed by the accused on June 10, 1968 on the
ground that, having been previously convicted of slight physical injuries by the City
Court of Bacolod and having already served the penalty imposed on him for the
very same offense, the prosecution for frustrated murder arising out of the same
act committed against the same offended party, the crime of slight physical injuries
necessarily being included in that of frustrated murder, he would be placed in
second jeopardy if indicted for the new offense. 6 In its well-reasoned resolution of
June 21, 1968 granting the motion to quash and ordering the dismissal of a
criminal case for frustrated murder against the accused, Judge Alampay relied
on People v. Buling which, in his opinion, was squarely applicable as "nothing in
the later medical certificate [indicated] that a new or supervening fact had
developed or arisen since the time of the filing of the original action" against the
accused. A motion for reconsideration being unavailing, an appeal was elevated to
us.

As succinctly set forth in the brief of the People of the Philippines: "The sole issue
in this case is whether the defendant, who had already been convicted of slight
physical injuries before the City Court of Bacolod for injuries inflicted upon Lam
Hock, and had served sentence therefore, may be prosecuted anew for frustrated
murder for the same act committed against the same person." 7 The position taken
by the appellant is in the affirmative but, as indicated at the outset, the controlling
force of People v. Buling would preclude us from reversing the resolution of Judge
Alampay.
1. The Constitution, to repeat, is quite explicit: "No person shall be twice put in
jeopardy of punishment for the same offense. As Justice Laurel made clear in an
address as delegate before the Constitutional Convention, such a provision finds its
origin" from the days when sanguinary punishments were frequently resorted to by
despots." 9A defendant in a criminal case should therefore, according to him, be
adjudged either guilty or not guilty and thereafter left alone in peace, in the latter
case the State being precluded from taking an appeal. 10 It is in that sense that the
right against being twice put in jeopardy is considered as possessing many features
in common with the rule of finality in civil cases. For the accused is given
assurance that the matter is closed, enabling him to plan his, future accordingly,
protecting him from continued distress, not to mention saving both him and the
state from the expenses incident to redundant litigation. There is likewise the
observation that this constitutional guarantee helps to equalize the adversary
capabilities of two grossly mismatched litigants, a poor and impecunious
defendant hardly in a position to keep on shouldering the costs of a suit.

the then Justice Moran and Justice Diaz that the offense of serious physical injury
of which he was found guilty being included in parricide his previous conviction
was a bar to such subsequent prosecution for the more serious crime. The lower
court judgement of conviction was thus reversed. According to Justice Laurel who
spoke for the Court: "To our mind, the principle embodied in the New Rules of
Court is a clear expression of selection of rule amidst conflicting theories. We take
the position that when we amended section 26 of General Orders No. 58 by
providing that the conviction or acquittal of the defendant or the dismissal of the
case shall be a bar to another prosecution for any offense not only necessarily
therein included but which necessarily includes the offense charged in the former
complaint or information, we meant what we have, in plain language, stated. We
certainly did not mean to engage in the simple, play of words." 13

Then, as a member of the Supreme Court, Justice Laurel had the first opportunity
to give meaning to what, under the Constitution, should be considered "the same
offense." In the case of People v. Tarok, decided in 1941, 11 the then comparatively
new Rules of Court in its Section 9 of Rule 113 speaks of a bar to another
prosecution for the offense charged after a defendant shall have been convicted or
acquitted or the case against him dismissed or otherwise terminated without his
express consent, "or for any attempt 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." 12

2. Such a ruling was however re-examined and set aside in Melo v. People, 14 where
it was held that an accused who pleaded guilty to the offense of frustrated
homicide, the offended party thereafter dying in the evening of the same day, could
not rely on a plea of double jeopardy if, as a result thereof, the information was
amended to charge him with homicide.15 As was clarified in the opinion of this
Court through the then Chief Justice Moran, one of the dissenters in the Tarok
case: "This rule of identity does not apply, however, when the second offense was
not in existence at the time of the first prosecution, for the simple reason that in
such case there is no possibility for the accused, during the first prosecution, to be
convicted for an offense that was then inexistent. Thus, where the accused was
charged with physical injuries and after conviction the injured person dies, the
charge for homicide against the same accused does not put him twice in
jeopardy."16 Stated differently, if after the first prosecution "a new fact supervenes
on which defendant may be held liable, resulting in altering the character of the
crime and giving rise to a new and distinct offense, "the accused cannot be said to
be in second jeopardy if indicted for the new offense." 17 It is noteworthy, however,
that in the Melo ruling, there was a reiteration of what was so emphatically
asserted by Justice Laurel in the Tarok case in these words: "As the Government
cannot begin with the highest, and then down step by step, bringing the man into
jeopardy for every dereliction included therein, neither can it begin the lowest and
ascend to the highest with precisely the same result." 18

In the Tarok case, the conviction for parricide of the accused was sought to be set
aside, as previously he had been indicted for the crime of serious physical injuries,
to which he had pleaded guilty. He was sentenced and was actually incarcerated by
virtue of such penalty imposed. The offended party was his wife whom he hacked
with bolo, his ire being aroused by certain, remarks made her. While he was thus
serving sentence, the victim died resulting in the new prosecution for parricide of
which he was convicted. On appeal to this Court, it was decided over the dissents of

3. There is then the indispensable requirement of the existence of "a new fact
[which] supervenes for which the defendant is responsible" changing the character
of the crime imputed to him and together with the facts existing previously
constituting a new and distinct offense. The conclusion reached in People v.
Buling, 19 the latest case in point relied upon by Judge Alampay in the resolution
no appeal, was thus, predictable. As set forth in the opinion of Justice Labrador in
the case, there was a medical certification that the wounds for which the accused

Buenaventura as first prosecuted for less serious physical injuries would require
medical attendance from a period of from ten days to fifteen days. He pleaded
guilty and on December 8, 1956, sentenced by the Justice of the Peace of Cabalian
Leyte, to one month and one day of arresto mayor. He started serving his sentence
on the same day. On January 18, 1957, however, another physician examined the
offended party and with the use of an X-ray apparatus, certified that he did suffer a
fracture requiring a treatment of from one and one-half months to two and one
half months, barring complications. As a result, on February 20, 1957, an
information was filed against the same accused, this time before the Court of First
Instance of Leyte, charging him with serious physical injuries. He stood trial and
was found guilty of such an offense and sentenced to imprisonment of four months
of arresto mayor as minimum to one year of prision correccional as maximum.
On appeal to this Court, his invocation of the defense of double jeopardy struck a
responsive chord, and he was acquitted.
4. The opinion of Justice Labrador explained with clarity why the constitutional
right against being put twice in jeopardy was a bar to the second prosecution.
Thus: "If the X-ray examination discloses the existence of a fracture on January 17,
1957, that fracture must have existed when the first examination was made on
December 10, 1956. There is therefore, no view or supervening fact that could be
said to have developed or arisen since the filing of the original action, which would
justify the application of the ruling enunciated by us in the cases if Melo vs.
People and People vs. Manolong ... . We attribute the new finding of fracture,
which evidently lengthened the period of healing of the wound, to the very
superficial and inconclusive examination made on December 10, 1956. Had an Xray examination been taken at the time, the fracture would have certainly been
disclosed. The wound causing the delay in healing was already in existence at the
time of the first examination, but said delay was, caused by the very superficial
examination then made. As we have stated, we find therefore that no supervening
fact had occurred which justifies the application of the rule in the case of Melo vs.
People and People vs. Manolong for which reason we are constrained to apply the
general rule of double jeopardy." 20 It is quite apparent, in the light of the
foregoing, why the lower court, submitting to the compulsion of the Buling
decision, had to sustain the motion to quash and to dismiss the information
against appellee Yorac. No error could therefore be rightfully imputed to it.
WHEREFORE, the resolution of June 21, 1968 of Judge Nestor B. Alampay
granting the motion to quash, ordering the dismissal of the case and the immediate
release of the appellee Rodrigo Yorac, is affirmed. Without costs.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Teehankee,
Villamor and Makasiar, JJ., concur.

Barredo, J., took no part.

BARREDO, J:
Petition for certiorari; to set aside the orders of respondent judge dated September
22, 1975 and October 14, 1975 dismissing Criminal Case No. 5241 of the Court of
First Instance of Iloilo against private respondent Margarito Fama, Jr., said
dismissal being predicated on the ground of double jeopardy, in view of the
dismissal of a previous charge of slight physical injuries against the same
respondent for the same incident by the Municipal Court of Janiuay, Iloilo in
Criminal Case No. 3335, notwithstanding that in the information in the firstmentioned case, it was alleged that the injuries sustained by the offended party,
aside from possibly requiring medical attendance from 6 to 9 days barring
complications", as was alleged in the information in Criminal Case No. 3335, had
left "a permanent sear and deform(ed) the right face of (said offended party)
Miguel Viajar."
The first criminal complaint filed against respondent Fama Jr. on April 15, 1975
(Case No. 3335) was as follows:

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-41863 April 22, 1977
PEOPLE OF THE PHILIPPINES, and ASST. PROV'L FISCAL F.
VISITACION, JR., petitioners,
vs.
HONORABLE MIDPANTAO L. ADIL, Presiding Judge, Court of First
Instance of Iloilo, Branch II, and MARGARITO FAMA, JR., respondents.
Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Alicia
V. Sempio-Diy and Solicitor Amado D. Aquino for petitioners.
Fama & Jimenea for private respondent.

That at about 5:30 o'clock in the afternoon of April 12, 1975, at

Aquino Nobleza St., Municipality of January, Province of Iloilo,
Philippines, and within the jurisdiction of this Honorable Court
the above-named accused, while armed with a piece of stone, did
then and there willfully, unlawfully and feloniously, assault, attack
and use personal violence upon one Miguel Viajar by then hurling
the latter with a stone, hitting said Miguel Viajar on the right
cheek, thereby inflicting physical injuries which would have
required and will require medical attendance for a period from 5 to
9 days barring complication as per medical certificate of the
physician hereto attached.
CONTRARY TO LAW. (Pp. 93-94, Record)
Arraigned on July 7, 1975, the accused entered a plea of not guilty.
Meanwhile, on June 8, 1975, complainant Viajar filed a letter-complaint with the
Provincial Fiscal of Iloilo charging Atty. Alfredo Fama, Raul Fama and herein
respondent Margarito Fama, Jr. with serious physical injuries arising from the
same incident alleged in above Criminal Case No. 3335. After conducting a
preliminary investigation, under date of July 28, 1975, the Fiscal filed in the Court
of First Instance of Iloilo an information, but only against respondent Fama Jr.,
(Case No. 5241) for serious physical injuries as follows:

That on or about April 12, 1975, in the Municipality of January,

Province of Iloilo, Philippines, and within the jurisdiction of this
Court, the said accused, with deliberate intent, and without any
justifiable motive, armed with pieces of stone did then and there
willfully, unlawfully and feloniously attack, assault and throw
pieces of stone at Miguel Viajar, hitting him on the lower right eye
which would heal from five (5) to nine (9) days barring
complications but leaving a permanent scar and deforming on the
right face of said Miguel Viajar.
CONTRARY TO LAW. (Pp. 94-95, Record)
On August 1, 1975, Fama Jr. filed an urgent motion to defer proceedings in
Criminal Case No. 5241, claiming that since he was already charged and pleaded
not guilty in Criminal Case No. 3335, he would be in double jeopardy, if Case No.
5241 were to be prosecuted. This motion was opposed by the Fiscal and the Court
required both parties to file their respective memorandum on the issue of double
jeopardy.
In the meantime, the Fiscal after filing Case No. 5241, sought the dismissal of Case
No. 3335, but the Municipal Court did not act on said motion. Instead, the case
was set for hearing, and in view of the postponements asked by the Fiscal in order
to await the resolution of the issue of double jeopardy in Case No. 5241, on
September 11, 1975, the following order was entered:
Under our democratic and constituted system of government
litigants before our courts of justice, plaintiffs and defendants,
complainants and accused are entitled to the equal protection of
our laws. More is an accused, the trial of his case has been
repeatedly postponed for several times by this Court in the
exercise of its sound discretion at the instance of the prosecution.
So, when this case was called for hearing on the afternoon of
September 1, 1975 the accused through counsel vigorously
objected to another postponement and moved for the dismissal of
the case against him. To grant another postponement as sought by
the Fiscal against the vehement, strong and vigorous objection of
the accused is to the mind of the Court, no longer an exercise of
sound discretion consistent with justice and fairness but a clear
and palpable abuse of discretion amounting to a serious denial to,
and a grave violation of, the right of the accused to a speedy trial to
which he is rightfully entitled to under Section 16 of Article IV,
(Bill of Rights) of the Philippine Constitution.

IN VIEW OF THE FOREGOING, the above-entitled case is hereby

ordered dismissed. The Cash Bond posted by the accused is hereby
ordered cancelled and released (Pp. 96-97, Record.)
Whereupon, on even date, Fama Jr. filed an addendum to his memorandum in
Case No. 5241 inviting attention to the above dismissal order and reiterating his
theory of double jeopardy. On September 22, 1975, respondent court issued the
impugned order sustaining the contention of double jeopardy and dismissing Case
No. 5241. The prosecution's motion for reconsideration was denied in the other
assailed order of October 14, 1975, respondent judge relying on the ruling laid
down in Peo. vs. Silva, 4 SCRA 95.
In brief, what happened here was that when Case No. 3335 was filed in the inferior
court of January, the charge against Fama Jr. had to be for slight physical injuries
only, because according to the certification of the attending physician, the injuries
suffered by the offended party Viajar, would require medical attendance from 5 to
9 days only "baring complications." Indeed, when the complaint was filed on April
15, 1975, only three days had passed since the incident in which the injuries were
sustained took place, and there were yet no indications of a graver injury or
consequence to be suffered by said offended party. Evidently, it was only later,
after Case No. 3335 had already been filed and the wound on the face of Viajar had
already healed, that the alleged deformity became apparent.
Now, expert evidence is not needed for anyone to understand that the scar or
deformity that would be left by a wound on the face of a person cannot be predetermined. On the other hand, whether or not there is actually a deformity on the
face of Viajar is a question of fact that has to be determined by the trial court. The
only issue We are to resolve here is whether or not the additional allegation of
deformity in the information in Case No. 5241 constitutes a supervening element
which should take this case out of the ruling in People vs. Silva cited by respondent
court.
In Silva, there was no question that the extent of the damage to property and
physical injuries suffered by the offended parties therein were already existing and
known when the prior minor case was prosecuted, What is controlling then in the
instant case is Melo vs. People, 85 Phil. 766, in which it was held:
This rule of identity does not apply, however, when the second
offense was not in existence at the time of the first prosecution, for
the simple reason that in such case there is no possibility for the
accused during the first prosecution, to be convicted for an offense

that was then inexistent Thus, where the accused was charged with
physical injuries and after conviction the injured dies, the charge
of homicide against the same accused does not put him twice in
jeopardy.
So also is People vs. Yorac, 42 SCRA, 230, to the following effect:
Stated differently, if after the first. prosecution 'a new fact
supervenes on which defendant may be held liable, resulting in
altering the character of the crime and giving rise to a new and
distinct offense, 'the accused cannot be said to be in second
jeopardy if indicted for the new offense.
In People vs. Buling, 107 Phil. 112, We explained how a deformity may be
considered as a supervening fact. Referring to the decision in People vs. Manolong,
85 Phil. 829, We held:
No finding was made in the first examination that the injuries had
caused deformity and the loss of the use of the right hand. As
nothing was mentioned in the first medical certificate about the
deformity and the loss of the use of the right hand, we presumed
that such fact was not apparent or could have been discernible at
the time the first examination was made. The course (not the
length) of the healing of an injury may not be determined before
hand; it can only be definitely known after the period of healing
has ended. That is the reason why the court considered that there
was a supervening fact occuring since the filing of the original
information.
In other words, in the peculiar circumstances of this case, the plea of double
jeopardy of private respondent Fama Jr., cannot hold. It was, therefore, a grave
error correctible by certiorari for respondent court to have dismissed Criminal
Case No. 5241.
ACCORDINGLY, the orders of September 22, 1975 and October 14, 1975 herein
complained of are hereby set aside and respondent court is ordered to proceed
with the trial and judgment thereof according to law. Costs against private
respondent Fama Jr.
Fernando (Chairman), Antonio, Aquino and Concepcion, Jr., JJ., concur.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
BERNARD MAPALO, Accused-Appellant.
DECISION
CHICO-NAZARIO, J.:
In its Decision1 dated 27 October 2004, the Regional Trial Court (RTC), Branch 32
of Agoo, La Union, in Criminal Case No. A-2871, found appellant Bernard Mapalo
guilty beyond reasonable doubt of the crime of Murder, and imposed upon him the
penalty of reclusion perpetua. On appeal, the Court of Appeals rendered a
Decision2 dated 21 November 2005, modifying the Decision of the RTC, and
finding Bernard Mapalo guilty beyond reasonable doubt of the crime of Frustrated
Murder.
The Indictments
Appellant, together with Peter Doe, John Doe and Peter Doe, Jr., was charged
before the RTC of Agoo, La Union with the crime of Murder, said to have been
committed as follows:

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 172608

February 6, 2007

That on or about the 13th day of February, 1994, in the Municipality of Aringay,
Province of La Union, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with intent to kill and being then armed with
lead pipes and bladed weapons and conspiring, confederating and mutually
helping each other, did then and there by means of treachery and with evident
premeditation and taking advantage of their superior strength, wil[l]fully,
unlawfully and feloniously attack, assault and use personal violence on one Manuel
Piamonte y Ugay by clubbing him with the said pipes and stabbing him several
times with the said bladed weapons, and thereby inflicting on the aforenamed
victim fatal injuries which were the direct and immediate cause of his death, to the
damage and prejudice of his heirs.
Contrary to law.3
The RTC ordered the issuance of a warrant of arrest for the apprehension of the
appellant. No bail was recommended.4 When the case was called, appellant filed a
Motion for Reinvestigation and Bail, which was granted.

On 27 March 1995, 3rd Assistant Provincial Prosecutor Manuel S. Oliva filed a

Motion to Admit Amended Information and for the Issuance of Warrant of Arrest
for the Apprehension of the Other Accused,5 alleging that a reinvestigation was
conducted and a prima facie case was found against the other accused. It was
prayed that an amended information be admitted and a warrant of arrest be issued
for the apprehension of Alejandro Fajardo, Jr., Jimmy Frigillana, and Rolando
Mapalo alias "Lando." Finding the Motion to be well-taken, the RTC issued an
Order,6 dated 27 April 1995, admitting the Amended Information, viz:
The undersigned Assistant Provincial Prosecutor accuses BERNARD
MAPALO, ALEJANDRO FAJARDO, JR.,JIMMY FRIGILLANA and ROLANDO
MAPALO alias Lando of the crime of MURDER, committed as follows:
That on or about the 13th day of February, 1994, in the Municipality of Aringay,
Province of La Union, Philippines, and within the jurisdiction of this Honorable
Court, the abovenamed accused, with intent to kill and being then armed with lead
pipe and bladed weapons and conspiring, confederating and mutually helping each
other, did then and there by means of treachery and with evident premeditation
and taking advantage of their superior strength, wil[l]fully, unlawfully and
feloniously attack, assault and use personal violence on one Manuel Piamonte y
Ugay by clubbing him with the said pipe and stabbing him several times with the
said bladed weapons, and thereby inflicting on the aforenamed victim fatal injuries
which were the direct and immediate cause of his death, to the damage and
prejudice of his heirs.7
Consequently, a warrant of arrest was issued for the apprehension of Alejandro
Fajardo, Jr., Jimmy Frigillana, and Rolando Mapalo alias "Lando." Only Alejandro
Fajardo, Jr. was apprehended; the other two remain at large.
On arraignment, appellant pleaded not guilty.8 Thereafter, trial on the merits
commenced.
After the prosecution had rested its case, Alejandro Fajardo, Jr. filed a Demurrer to
Evidence which was granted by the RTC, in its Order9 dated 5 November 1998, on
the ground that the prosecution did not present any evidence against him. Thus,
only accused Bernard Mapalo proceeded to present his evidence. He was
eventually found guilty.
The Case for the Prosecution
The prosecution presented Calixto Garcia (Garcia) as its lone eyewitness.

Garcia testified that on 12 February 1994, a pre-Valentine dance was held in Sitio
Baracbac, Brgy. Sta. Cecilia in Aringay, La Union. He watched the dance, along
with the appellant and Jimmy Frigillana.10 In the early morning of 13 February
1994, at around 3:00 a.m., a fight erupted between Manuel Piamonte (Piamonte)
and the group of Lando Mapalo,11 Jimmy Frigillana, and the appellant.12
Garcia further testified that he witnessed the fight from a distance of more or less
five (5) meters. He claimed that he could see the incident very clearly because of
the light at the dancing hall.13 He saw the appellant club Piamonte with a lead pipe
from behind, hitting him on the right side of the head.14 The pipe was one and a
half (1 and ) feet in length, and one and a half (1 and ) inches in diameter.15 At
that time when the appellant struck Piamonte with a lead pipe, he saw Jimmy
Frigillana and Lando Mapalo standing in front of Piamonte. Later, he saw the dead
body of Piamonte, which had suffered multiple stab wounds. 16 He saw stab wounds
on the left and right parts of the abdomen, and below the left breast, as well as
small wounds on the front part of his left hip.17Garcia disclosed that he neither
witnessed how Piamonte was stabbed, nor did he see the act of stabbing
Piamonte.18 He does not know who stabbed the latter.19 It was only when
Piamontes shirt was removed when he saw stab wounds on the formers dead
body.20
The Case for the Defense
Appellant testified that in the evening of 13 February 1994,21 at around 9:00 p.m.,
he, along with his wife, Caridad Mapalo, entertained several guests at their
residence, namely, Crispin Calderon, Noel Cordero, Ruel Mercado, and Rolando
Mapalo.22 They drank wine.23 Appellant knew that there was a Valentines Day
dance celebration at the dance hall, located northeast of his house at a distance of
about 20-30 meters.24 At 12:30 a.m., after his guests had left the house, he went to
sleep.25 At 3:00 a.m., his wife woke him up and was informed that somebody had
been stabbed. He said he came to know that Piamonte was the person who was
stabbed.26 He added that he planned to go out of the house, but his wife prevented
him from doing so.27 He, thereafter, returned to his room, and went back to sleep.28
Corroborating the appellants defense of denial and alibi, his wife, Caridad Mapalo,
narrated that on 13 February 199429 at 8:00 p.m., she served brandy to her
husband and their guests at their residence. The celebration finished at around
12:00 midnight.30 Thereafter, she and her husband went to sleep, while their guests
proceeded to the dance hall. At 3:00 a.m., she awoke because of a commotion from
the dance hall.31 She described that the dance hall is around 60 to 70 meters,
southwest of their residence.32 She went outside of their house, and along with her
sister-in-law, Marissa Dapit, proceeded to the edge of the dancing hall.33 She

claimed that her husband did not go out and just stayed at their house.34 She
explained that she and Marissa Dapit went out to see or to know the name of the
person who died at the commotion.35 At the dancing hall, she saw the body of
Piamonte, lying face down.36

Further, the accused is ordered to pay the heirs of Manuel Piamonte the amount of
Twelve Thousand Seven Hundred Pesos (P12,700.00) as actual damages. Fifty
Thousand Pesos (P50,000.00) as civil indemnity for the death of Piamonte and
Fifty Thousand Pesos (P50,000.00) as moral damages.38

The Ruling of the RTC

The Ruling of the Court of Appeals

After trial, the RTC rendered a Decision, dated 27 October 2004, finding appellant
guilty beyond reasonable doubt of the crime of Murder.

Before the appellate court, appellant challenged the credibility of the prosecutions
lone eyewitness. Appellant similarly assailed the ruling of the RTC on the ground
that it erred in convicting him despite the failure of the prosecution to prove his
guilt beyond reasonable doubt.39

It ruled that appellants defense of alibi cannot prevail over the positive
identification of the lone eyewitness. As emphasized by the RTC, per admission of
appellant, the distance between his house and the dancing hall is only 20 to 30
meters, more or less. There was no physical impossibility for the appellant to be
present at the scene of the crime. Moreover, it found Garcias testimony to be
consistent and uncontradicted. On the other hand, the RTC considered the
testimony of Caridad Mapalo as defying the natural course of human reaction and
experience. The RTC found it strange that it was only Caridad Mapalo who was
awakened by the commotion, while the appellant remained asleep. Learning of the
same, Caridad Mapalo exposed herself to danger by proceeding to the dance hall to
see what the commotion was all about without even informing her husband. The
RTC conjectured that Caridad Mapalo proceeded to the dance hall not to see what
the commotion was all about, but because she was informed that her husband was
involved in a fight.37
Further, the RTC ruled that conspiracy was established by the prosecution.
According to the RTC, the appellant was clearly identified by Garcia as the one who
struck Piamonte on the head with a lead pipe, which alone is "sufficient
manifestation of a concerted, common and united design with the other accused to
commit an unlawful and felonious act." The fact that the medical certificate shows
the cause of death as stab wounds was deemed by the RTC as immaterial, in view
of the presence of conspiracy. The RTC also appreciated the attendance of abuse of
superior strength as a qualifying circumstance, on the rationalization that the
perpetrators were armed with bladed weapons and a lead pipe that were out of
proportion to the unarmed Piamonte.
The decretal portion of the RTC Decision states:
WHEREFORE, the accused BERNARD MAPALO is hereby found Guilty beyond
reasonable doubt of the crime of MURDER and is sentenced to suffer the penalty
of RECLUSION PERPETUA.

The Court of Appeals found no adequate reason to disturb the findings of the RTC
in weighing the testimony of Garcia. It did not find significant the alleged
inconsistencies in Garcias affidavits as executed before the investigating police and
the prosecutor.40 The appellate court did not accept the appellants defense of alibi.
The positive identification of the prosecution witness which was consistent and
categorical, and shown to be without ill-motive, has discredited appellants
defense.
The Court of Appeals, however, found reason to modify the findings of the RTC. It
convicted the appellant of frustrated murder only. It was not convinced that the
evidence on record established conspiracy among the appellant and his co-accused.
The appellate court rationalized that while the evidence shows that Piamonte
sustained stab wounds which caused his death,41 the appellant was never identified
as the one who inflicted the stab wounds on the deceased. According to the
appellate court, the prosecutions evidence only established that the appellant
clubbed Piamonte with a lead pipe. However, the prosecutions witness did not see
the stabbing. He was not able to describe the particular acts which caused
Piamontes death. Hence, it cannot be inferred from the account of the witness that
the appellant and his co-accused came to an agreement to commit a felony, or that
they decided to commit the same, by concerted acts.42 The Court of Appeals made
the following observations:
In the first place, the killing was the result of a fight that erupted suddenly during
the Valentine dance, which discourages the conclusion that the killing was
planned. Also, the witness did not see any stabbing. He did not see anyone else
perform any act of stabbing or hitting, other than the appellant delivering blows
with a lead pipe on the victim. There is no proof, therefore, of any concerted action
or common design to kill the victim that could be the basis for a finding of

conspiracy among several malefactors. Because of this, it could not be said that
conspiracy was proven attendant beyond reasonable doubt.43
In the absence of a conspiracy, the Court of Appeals said that the appellant could
only be held liable for the consequences of his own criminal act. It ruled that when
the appellant hit Piamonte in the head with the lead pipe, he performed all the acts
that would have brought about the death of the victim.44 Piamontes death however
was due to some other supervening cause, independent of the appellants will.45
The fallo of the Court of Appeals Decision reads, viz:
WHEREFORE, premises considered, the lower courts Decision is hereby
MODIFIED, in that the accused-appellant Bernard Mapalo is hereby found guilty
beyond reasonable doubt of the crime of Frustrated Murder. Accused-appellant is
hereby sentenced to 8 years and 1 day of prision mayor, as minimum to 14 years, 8
months and 1 day of reclusion temporal, as maximum.

In support of the first assignment of error, appellant raises, for the first time, the
defense that the witness for the prosecution failed to positively identify him during
the trial proceedings. Citing People v. Galera48 and People v. Hatton,49 appellant
submits that the prosecution failed to discharge its first duty, which is the
identification of the accused as the author of the crime charged. 50 Witness Garcia
did not identify the appellant in open court.
Appellant further posits that Garcia did not deny drinking gin at around 9:00 p.m.
on 13 February 1994 until 3:00 a.m. of the following day. Garcia was then
intoxicated if he had been drinking hard liquor continuously for six hours. At such
point, he can no longer positively determine a persons identity. It is argued that
the foregoing circumstances create doubts as to the identity of the appellant as one
of the perpetrators of the crime.
We first tackle the issue on the lack of in-court identification.
True that on the matter of identification, the Court in Hatton said:

Further, the accused is ordered to pay the heirs of Manuel Piamonte[,] the amount
of Twenty Five Thousand Pesos (P25,000.00) as temperate damages, Thirty
Thousand Pesos (P30,000.00) as civil indemnity and Thirty Thousand Pesos
(P30,000.00) as moral damages pursuant to prevailing jurisprudence. (People v.
Pacana, 345 SCRA 72 [2000]; People v. Givera, 349 SCRA 513 [2001]).46

More importantly, the accused-appellant was not positively identified in court.

True, his name was referred to by both Basierto and Ongue in their respective
direct testimonies. However, he was not identified in Court. The failure of the
prosecution witness to positively identify the assailant in court is fatal to the
prosecutions cause. Pre-trial identification is not sufficient.51

The Issues
Appellant contends that:
I
THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING THE
ACCUSED-APPELLANT DESPITE FAILURE OF THE PROSECUTION TO
IDENTIFY THE ACCUSED-APPELLANT IN OPEN COURT; and
II
ASSUMING THAT THE ACCUSED-APPELLANT IS GUILTY, THE
COURT OF APPEALS GRAVELY ERRED IN CONVICTING HIM OF
FRUSTRATED MURDER INSTEAD OF FRUSTRATED HOMICIDE.47

Verily, the records are bereft of proof that there was in-court identification by the
witness Garcia of the appellant. Indeed, Garcia did not point to the appellant in the
courtroom. Such fact can be gleaned from the pertinent portion of the transcript of
stenographic notes of the trial, reproduced hereunder, as follows:
Direct-examination by Prosecutor Rudio of the witness Calixto Garcia
Q Do you know the accused Bernard Mapalo?
A I know, sir.
Q If that accused is inside the courtroom now will you please stand up and point to
him if he is inside the courtroom?
A No, he is not around.

The Ruling of the Court

COURT:

Q Was he notified for (sic) todays hearing?

INTERPRETER:
Yes, he signed, sir.
COURT: O R D E R:
It appears that the accused Bernard Mapalo was being notified for (sic) todays
hearing and his wife came to Court and informed the Honorable Court that her
husband could not come to Court because he is sick.52
The same testimony, however, conspicuously reveals that there was no
identification in open court of the appellant because said appellant was not present
at the time, despite notice, as according to his wife, he was sick.

We do not find herein a case where there is a question or doubt as to whether the
one alleged to have committed the crime is the same person charged in the
information and subject of the trial. In fact, appellant never denied that he is the
person indicted in the Information, and subject of the proceedings. His denial is
that he did not participate in the commission of the crime. Hence, in-court
identification is not indispensable in the case at bar.
We are convinced that the identity of the appellant was sufficiently established by
the evidence on record.
The appellant is not a stranger to the witness Garcia. The identity of the appellant
to Garcia does not appear to be controvertible. In fact, appellant himself admits
that he and Garcia are friends. Thus:
Cross-examination by Prosecutor Lachica of [appellant] Bernard Mapalo

In a later case, this Court clarified that a physical courtroom identification is

essential only when there is a question or doubt on whether the one alleged to have
committed the crime is the same person who is charged in the information and
subject of the trial. In People v. Quezada,53 this Court expounded, thus:

Q Mr. Witness you said that you were informed by your counsel a while ago that a
certain Calixto Garcia testified against you in this case did I get you right?

We do not see the absolute need for complainant to point to appellant in open
court as her attacker. While positive identification by a witness is required by the
law to convict an accused, it need not always be by means of a physical courtroom
identification. As the court held in People v. Paglinawan:

Q And this Calixto Garica is a resident of the same Barangay as you are?

A Yes, sir.

A Yes, sir.
Q In fact this Calixto Garcia is an acquaintance of yours?

"x x x. Although it is routine procedure for witnesses to point out the accused in
open court by way of identification, the fact that the witness x x x did not do so in
this case was because the public prosecutor failed to ask her to point out appellant,
hence such omission does not in any way affect or diminish the truth or weight of
her testimony."
In-court identification of the offender is essential only when there is a question or
doubt on whether the one alleged to have committed the crime is the same person
who is charged in the information and subject of the trial. This is especially true in
cases wherein the identity of the accused, who is a stranger to the prosecution
witnesses, is dubitable. In the present case, however, there is no doubt at all that
the rapist is the same individual mentioned in the Informations and described by
the victim during the trial. (Emphasis supplied.)54

A Yes, sir.
Q He is considered a friend?
A Yes, sir I consider him as such.
Q Prior to the incident which happened sometime on February 13, 1994, you have
never quarreled with this Calixto Garcia?
A No, sir.
Q Even after that incident that happened on February 13, 1994 you never quarreled
with Calixto Garcia?

A No, sir.

Q But he is staying within your barangay which is Sta. Cecilia?

Q You know that this Calixto Garcia is not a relative of Piamonte the victim in this
case?

A Yes, sir.
Q This Calixto Garcia whom you know is a friend of your family, correct?

A I do not know whether he is a relative of the victim or not.

A Yes, sir.
Q You know for a fact that Calixto Garcia executed a statement before the police
pointing to you or pointing to you as the assailant of Paimonte did you come to
know that?
A No, sir.
Q You said that you know Calixto Garcia your friend according to you, did you
confront him when he testified against you in court?
A No, sir.
Q You did not tell your friend that he was mistaken in identifying you as the
assailant of Piamonte, correct?

Q In fact, your family have (sic) never quarreled with Calixto Garcia?
A None, sir.
Q Prior to the filing of this case, you know that Calixto Garcia being a friend will
not falsify his testimony regarding your husband?
A Yes, sir.
ATTY. RIMANDO:
Objection, your honor.

A No, sir. 55

COURT:

The proper identification of the appellant is further bolstered by the fact that
appellants wife, Caridad Mapalo corroborated the testimony that the witness
Garcia is a family friend of the spouses. Thus:

Objection overruled.

Cross examination of Caridad Mapalo by Prosecutor Lachica

Q Do you know a certain Calixto Garcia?
A Yes, sir.
Q He is your Barangay mate?
A Yes, sir.
Q His house is closed to your house, correct?
A Far, sir.

PROSECUTOR LACHICA:
Q Until now, this Calixto Garcia is your friend?
A Yes, sir.
PROSECUTOR LACHICA:
That would be all for the witness.
RE-DIRECT EXAMINATION BY ATTY. RIMANDO:
Q This Calixto Garcia was your guest in that evening in your residence?

A No, sir.

of intoxication was not shown to impair his faculties. The credibility of the witness
therein was not made to suffer on that score alone.64

Q Is your family close with (sic) this Calixto Garcia?

A Yes, sir.

56

Moreover, we do not find herein the presence of factors 57 that could cause the
witness Garcia to misidentify the appellant. In People v. Limpangog,58 this Court
enumerated several other known causes of misidentification, viz:
x x x Known causes of misidentification have been identified as follows:
"Identification testimony has at least three components. First, witnessing a crime,
whether as a victim or a bystander, involves perception of an event actually
occurring. Second, the witness must memorize details of the event. Third, the
witness must be able to recall and communicate accurately. Dangers of
unreliability in eyewitness testimony arise at each of these three stages, for
whenever people attempt to acquire, retain, and retrieve information accurately,
they are limited by normal human fallibilities and suggestive influences." 59
There is no question that the witness Garcia was at a close range of merely five
meters more or less from the scene of the incident.60 Neither can it be said that the
illumination was poor. The dancing hall was lighted.61 No improper motive was
attributed to the witness Garcia for testifying against the appellant. Moreover,
witness Garcia is familiar not only to appellant. Garcia was also familiar with the
deceased, Piamonte. Witness Garcia, in his testimony, referred to Piamonte as his
third cousin.62
On appellants submission that it is doubtful if witness Garcia can still have
positively identified him as one of the perpetrators of the crime considering that
the former admitted to drinking hard liquor from 9:00 p.m. on 13 February 1994
until 3:00 a.m. of the following day, we are not convinced that the same can
overthrow the trial courts evaluation of Garcias testimony. Beyond appellants
bare allegations, no evidence whatsoever was produced to show that Garcia
suffered from such a level of intoxication as to impair his facility and disable him to
identify appellant. In the case of People v. Dee,63 the credibility of the surviving
victim therein as witness was disputed because he was under the influence of
liquor at the time of the incident. In Dee, the witness was even found positive for
alcoholic breath, but the Court ruled that such fact does not necessarily prevent
him from making a positive identification of his attackers, especially since his level

The foregoing material considerations, taken together with the fact that witness
Garcia and the appellant are not strangers to each other, satisfy us that the danger
of Garcia misidentifying the appellant does not exist. Where the prosecution
eyewitness was familiar with both victim and accused, and where the locus
criminis afforded good visibility, and where no improper motive can be attributed
to the witness for testifying against the accused, his version of the story deserves
much weight.65
Hence, we do not find any reason to depart from the general rule that the
conclusions of the trial court on the credibility of witnesses deserve great respect,
viz:
The assessment of the credibility of witness and their testimony is a matter best
undertaken by the trial court because of its unique opportunity to observe the
witnesses firsthand; and to note their demeanor, conduct and attitude under
examination. Its findings on such matters are binding and conclusive on appellate
courts unless some facts or circumstances of weight and substance have been
overlooked, misapprehended or misinterpreted.66
Appellants defense of alibi and denial cannot stand in the face of the positive
identification of the accused. We have unfailingly held that alibi and denial being
inherently weak cannot prevail over the positive identification of the accused as the
perpetrator of the crime.67 It is facile to fabricate and difficult to disprove, and is
generally rejected.68
For the defense of alibi to prosper, it must be shown with clear and convincing
evidence that at the time of the commission of the crime charged, the accused is in
a place other than the situs of the crime such that it was physically impossible for
him to have been at the situs criminis when the crime was committed.69
In the case at bar, appellant was not successful in invoking the defense of alibi.
Appellant insists that he was sleeping at his residence at the time when the
incident occurred. The RTC and the Court of Appeals consistently found that the
distance between appellants residence and the dance hall, or the situs criminis, is
20 to 30 meters, more or less.70 Such a distance is negligible. In fact, appellants
wife testified that from their residence, she could see the people dancing at the
hall.71 It was not highly impossible for the appellant to be physically present at the

dancing hall at the time of the occurrence of the incident. We, therefore, reject
appellants defense of alibi.
We shall now determine the criminal liability of the appellant.
To reiterate, the RTC, in convicting the appellant guilty beyond reasonable doubt
of the crime of murder, proceeded from a rationalization that there was conspiracy
among appellant and his co-accused. It also appreciated the attendance of abuse of
superior strength to qualify the crime to Murder.
The Court of Appeals was unable to agree with the RTC. It found that the
conspiracy was not proven beyond reasonable doubt. It ruled that the witness
Garcia admitted to not being able to see the stabbing. He could only attest to the
clubbing of the victim by appellant with a lead pipe. No proof was shown as to the
concerted action of the malefactors of their common design to kill. It, thus,
modified the RTCs conviction, and, instead, found appellant guilty of frustrated
murder.
The Amended Information charged the appellant and his co-accused with
conspiracy in killing Piamonte.
Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it.72 Conspiracy as a basis for
conviction must rest on nothing less than a moral certainty.73Considering the farreaching consequences of criminal conspiracy, the same degree of proof necessary
in establishing the crime is required to support the attendance thereof, i.e., it must
be shown to exist as clearly and convincingly as the commission of the offense
itself.74 Thus, it has been held that neither joint nor simultaneous actions is per se
sufficient proof of conspiracy.75
We are, further, guided by the following pronouncement of the Court:
For conspiracy to exist, the participants must agree to the commission of the felony
and decide to commit it, which agreement may be deduced from the mode and
manner of the commission of the offense or inferred from the acts that point to
joint purpose and design, concerted action and community of intent. x x x. 76
While conspiracy need not be established by direct evidence, it is, nonetheless,
required that it be proved by clear and convincing evidence by showing a series of
acts done by each of the accused in concert and in pursuance of the common
unlawful purpose.77

There is a want of evidence to show the concerted acts of the appellant and his coaccused in pursuing a common design - to kill the deceased, Piamonte. The sole
eyewitness for the prosecution, Garcia, was categorical and precise in declaring
that he did not see the act of stabbing Piamonte, nor the manner in which
Piamonte was stabbed. He later learned that Piamonte died from stab wounds
when he saw the latters dead body covered with stab wounds. The cause of death
of Piamonte, as found by the RTC and the Court of Appeals, 78 and as borne by the
records, is multiple stab wounds.79 It was, thus, incumbent on the part of the
prosecution to prove beyond reasonable doubt that the appellant and his coaccused acted in concert with a unity of purpose to kill Piamonte. They must show
to the satisfaction of this Court the appellants overt act in pursuance or
furtherance of the complicity.80 They must show that appellants act of striking
Piamonte with a pipe was an intentional participation in the transaction with a
view to the furtherance of the common design and purpose. 81
The prosecution was unable to show, either by direct or indirect evidence, proof of
the agreement among the appellant and his co-accused to warrant conspiracy as a
basis for appellants conviction. No evidence was even adduced to show implied
conspiracy. Nothing has been shown that the appellant and his co-accused were
"aimed by their acts towards the accomplishment of the same unlawful object, each
doing a part so that their combined acts, though apparently independent of each
other were, in fact, connected and cooperative, indicating a closeness of personal
association and a concurrence of sentiment."82
This complete absence of evidence on the part of the prosecution to show the
conduct of the appellant and his co-accused, disclosing a common understanding
among them relative to the commission of the offense,83 is fatal to the prosecution.
The prosecutions witness could not testify on the manner by which the deceased
Piamonte was stabbed, precisely because by his own admission, he did not see the
stabbing. No account of the stabbing which caused the death of the deceased
Piamonte was ever given nor shown. Unfortunately, no account of how Piamonte
died was ever given, except for the established fact that he died due to stabbing.
The appellants act of holding a lead pipe and hitting the deceased in the head was
not shown to be in furtherance of the common design of killing the deceased. What
transpired during the stabbing of the victim, which is material to proving the fact
of conspiracy, is, regrettably, left merely to speculation. This Court must neither
conjecture nor surmise that a conspiracy existed. The rule is clear that the guilt of
the accused must be proved with moral certainty.84 All doubts should be resolved
in favor of the accused. Thus, the time honored principle in criminal law that if the
inculpatory facts are capable of two or more explanations, one consistent with the
innocence of the accused and the other with his guilt, the Court should adopt that

which is more favorable to the accused for then the evidence does not fulfill the test
of moral certainty.85
Liability of the Accused Bernard Mapalo
There being no conspiracy, the liability of the appellant will revolve around his
individual participation in the event.86
In the case of Li v. People,87 a street fight ensued resulting in the death of the
victim therein. No conspiracy was proven beyond reasonable doubt. The liability of
the accused Li who was shown to have struck the victims right arm with a baseball
bat, resulting in a contusion was, thus, determined by the Court in the following
manner:
The only injury attributable to Li is the contusion on the victims right arm that
resulted from Li striking [the victim] Arugay with a baseball bat. In view of the
victims supervening death from injuries which cannot be attributed to Li beyond
reasonable doubt, the effects of the contusion caused by Li are not mortal or at
least lie entirely in the realm of speculation. When there is no evidence of actual
incapacity of the offended party for labor or of the required medical attendance,
the offense is only slight physical injuries, penalized as follows:
xxxx
The duration of the penalty of arresto menor is from one day to thirty days. The
felony of slight physical injuries is necessarily included in the homicide charges.
Since the Information against Li states that among the means employed to commit
the felonious act was the use of the baseball bat, conviction on the lesser offense or
slight physical injuries is proper. There being no aggravating or mitigating
circumstances established, the imposition of the penalty in its medium period is
warranted. Li was convicted by the RTC on January 5, 1994. Having long served
more than the imposable penalty, Li is entitled to immediate release unless, of
course, he is being lawfully detained for another cause. 88

No contusions or injury on the head of the victim or anywhere else in his body
caused by a lead pipe was shown. The witness Garcia, in his testimony, merely
pointed to stab wounds on the different parts of the body of the deceased. 91 No
proof on the injury that was sustained by the deceased that can be attributable to
appellants act was demonstrated. No other physical evidence was proffered.92
We cannot convict appellant of Attempted or Frustrated Murder or Homicide. The
principal and essential element of attempted or frustrated homicide or murder is
the assailants intent to take the life of the person attacked.93Such intent must be
proved clearly and convincingly, so as to exclude reasonable doubt thereof. 94 Intent
to kill may be proved by evidence of: (a) motive; (b) the nature or number of
weapons used in the commission of the crime; (c) the nature and number of
wounds inflicted on the victim; (d) the manner the crime was committed; and (e)
words uttered by the offender at the time the injuries are inflicted by him on the
victim.95
In the case at bar, no motive on the part of appellant to kill Piamonte was shown
either prior or subsequent to the incident. Nor can such intent to kill be inferred
from his acts. It bears reiterating that no injury on the body of the deceased was
attributed to the appellants act of hitting the victim with a lead pipe. On the nature
of the weapon used, the lead pipe was described by Garcia as one and a half feet in
length, and one and a half inches in diameter. The relevant testimony of Garcia on
the incident follows:
Q Now you said that Bernard Mapalo clubbed this Manuel Piamonte. He clubbed
him from behind?
A Yes, sir.
Q And what did he use in clubbing the victim, is it lead pipe?
A Yes, sir.
Q How long is that lead pipe?

In the case at bar, no injury was shown to be attributable to the appellant. The only
medical evidence that appears on records is the deceased Piamontes death
certificate,89 which indicates that the cause of death is massive
hypovolemia90 secondary to multiple stab wounds. The factual findings of the RTC
and the Court of Appeals coincide to show that the cause of death of Piamonte is
multiple stab wounds. Nothing has been shown otherwise. Other than the presence
of multiple stab wounds, no other type of injury on the deceased was established.

A Around this length. (Witness demonstrated 1 1/2 feet).

Q And how wide is the diameter?
A 1 inches.

Q What part of his body was hit?

SO ORDERED.

A Right side of the head, sir. (Witness showing the right side of his head.) 96
Homicidal intent must be evidenced by the acts that, at the time of their execution,
are unmistakably calculated to produce the death of the victim by adequate
means.97 We cannot infer intent to kill from the appellants act of hitting Piamonte
in the head with a lead pipe. In the first place, wounds were not shown to have
been inflicted because of the act. Secondly, absent proof of circumstances to show
the intent to kill beyond reasonable doubt, this Court cannot declare that the same
was attendant.
When the offender shall ill-treat another by deed without causing any injury, and
without causing dishonor, the offense is Maltreatment under Article 266,98 par. 3
of the Revised Penal Code. It was beyond reasonable doubt that by hitting
Piamonte, appellant ill-treated the latter, without causing any injury. As we have
earlier stated, no proof of injury was offered. Maltreatment is necessarily included
in Murder, which is the offense charged in the Information. Thus:
ART. 266. Slight physical injuries and maltreatment. The crime of slight physical
injuries shall be punished:
xxxx
3. By arresto menor in its minimum period or a fine not exceeding 50 pesos when
the offender shall ill-treat another by deed without causing any injury.
The duration of the penalty of arresto menor in its minimum period is 1 day to 10
days.
WHEREFORE, the Decision of the Court of Appeals, dated 21 November 2005, in
CA-G.R. CR HC No. 00408 is MODIFIED. Appellant Bernard Mapalo is
ACQUITTED of the charge of MURDER for lack of evidence beyond reasonable
doubt. He is found GUILTY of the crime of MALTREATMENT, as defined and
punished by Article 266, par. 3 of the Revised Penal Code. He is accordingly
sentenced to suffer the penalty of imprisonment of arresto menor of 10 days.
Considering that appellant has been incarcerated since 2004, which is well-beyond
the period of the penalty herein imposed, the Director of the Bureau of Prisons is
ordered to cause appellants IMMEDIATE RELEASE, unless appellant is being
lawfully held for another cause, and to inform this Court, within five (5) days from
receipt of this Decision, of the compliance therewith.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 172834

February 6, 2008

JUN MUPAS and GIL MUPAS, petitioners,

vs.
PEOPLE OF THE PHILIPPINES, respondents.
DECISION

execution which would have produced the crime of Homicide as a

consequence but which nevertheless did not produce it by reason of causes
independent of the will of the accused, that was the timely and able
medical assistance rendered to the offended party which saved his life to
his damage and prejudice.
CONTRARY TO LAW.5

TINGA, J.:
Petitioners Jun and Gil1 Mupas were found guilty of frustrated homicide in
Criminal Case No. 2314 in the Decision2 dated 22 November 2002 rendered by the
Regional Trial Court of Malaoan, La Union, Branch 34. The dispositive portion of
the decision reads:
WHEREFORE, in light of the foregoing, the Court hereby renders
judgment declaring both accused JUN MUPAS and GIL MUPAS @ "Banjo"
guilty beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE
as defined and penalized in Art. 249 in relation with Art. 6 of the Revised
Penal Code, and thereby sentenced EACH of the accused to suffer an
indeterminate penalty of imprisonment from FOUR (4) YEARS and TWO
(2) MONTHS PRISION CORRECCIONAL as Minimum to TEN (10) years
PRISION MAYOR as maximum and the accessory penalties provided for
by law and to indemnify jointly the private complainant the reasonable
amount of P5,000.00 for hospital expenses and other miscellaneous
expenses.
The preventive imprisonment suffered by the accused is counted in his
favor.
SO ORDERED.3
The relevant antecedents are as follows:
The Information4 for frustrated homicide alleged:
That on or about the 18 day of February 1993, in the Municipality of
Bangar, Province of La Union, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused conspiring, confederating
and mutually helping one another and with intent to kill, did then and
there willfully, unlawfully and feloniously attack, maul with fist and stones
and stab with a knife Rogelio Murao y Sibayan hitting the latter and
inflicting injuries on his face and head thus performing all the acts of
th

During the arraignment, petitioners, assisted by counsel, pleaded not guilty to the
charge.6 Thereafter, trial ensued.
The prosecution presented three witnesses, namely: Rogelio Murao (Rogelio),
Flaviano Murao (Flaviano) and Dr. Arsenio B. Martinez (Dr. Martinez).
Rogelio testified that at around 7:30 in the morning of 18 February 1993, he was
walking to school with his companion Eduardo Murao, Jr. when Jun suddenly
stopped and stabbed him using a 29-inch Batangas knife. Meantime, Banjo bodily
restrained him but luckily Rogelio was able to avoid the blow. Next, Banjo and Jun
hurled stones at him and hit him on the leg while Rogelio was running eastward.
Rogelio then flagged down a motorized tricycle but the two assailants continued to
pursue him. While inside the tricycle, Banjo held Rogelio by his neck and punched
him while Jun stabbed him several times. Then, Rogelio alighted from the tricycle
and ran home. Afterwards, his father and mother accompanied him to the
hospital.7 There, Dr. Martinez attended to Rogelio and issued a medical certificate
containing the following findings:
Cut wound, 2-3 cm. parietal area
Abrasion, maxiliary area, (L)
Contusion, maxiliary area, (L)
Abrasion, lumbar area, (L)
HEALING PERIOD: It may take two weeks to heal.8
Prior to the incident, Rogelio recalled that in January of the same year, he had a
misunderstanding with Jun where he and the latter hurled invectives at each other.
Rogelio suspected that this event gave rise to the subject incident.9
Flaviano, Rogelios father, testified that on 18 February 1993, Rogelio came home
bleeding from head injuries. Immediately, he brought Rogelio to the Martinez
Clinic in Bangar, La Union. Flaviano reported that he has spentP2,000.00 for

Rogelios medical treatment and P3,000.00 for attorneys fees and

transportation.10

Jun and Gil were found guilty as charged and the judgment of conviction was
elevated to the Court of Appeals.

For the defense, Jun testified that on 18 February 1993, at around 7:30 in the
morning, he was watering the plants in front of Gils house when he accidentally
sprayed water on Rogelio who was passing by. Rogelio scolded him and Jun
immediately apologized. Rogelio then challenged Jun to a fistfight which Jun
accepted. After that, Rogelio ran away, picked up big stones and threw them at
Gils house. Jun gave chase and was able to catch up with Rogelio. They both
boarded a tricycle and continued their fighting inside. One of the passengers of the
tricycle, Josefina Mendoza, pacified the two men. Banjo arrived only when the
fighting ceased.11

Before the Court of Appeals, Jun and Gil argued that the trial court erred in: (1)
finding Gil guilty of the crime charged despite the prosecutions failure to prove his
guilt beyond reasonable doubt; and (2) finding Jun guilty of the crime of frustrated
homicide instead of physical injuries only.17

Afterwards, Jun went home. Then, Rogelio and Flaviano, each armed with a bolo,
arrived and challenged Jun to a fight. However, the two could not enter the house
as the gate was locked.12
Gil testified that in the morning of 18 February 1993, at around 7:00, somebody
threw a stone at their house. He went outside the house and saw Jun chasing
Rogelio. He went near them and saw that they had already been pacified by one
Ms. Monis. Afterward, he sent the two men home. Gil also went home and thereat,
Rogelio, who had a stone with him, arrived with his father Flaviano who was
carrying a bolo. Rogelio then challenged Gil and Jun to a fight.13
Danilo Olpindo testified that between 7:00 and 8:00 in the morning of 18 February
1993, he was buying soap from Banjos store when a fistfight transpired between
Rogelio and Jun. Rogelio then ran away, picked up a stone and threw it at Jun.
After Rogelio threw another stone at Banjos house, Jun chased him and had a
fistfight with him again. Banjo then came out of the house and asked the two to go
home. Danilo also saw Teresita Monis at the scene trying to pacify the two.14
Teresita Monis testified that on that fateful day, she was riding a tricycle when
suddenly, somebody from outside punched one of her co-passengers. She saw an
arm reach inside the tricycle and hit the passenger. Blood started to ooze from the
fellows forehead. Shortly, she had to alight from the tricycle to attend the flag
ceremony at her school.15
Josefina Mendoza testified that on said day, she saw Jun box Rogelio.
Subsequently, Banjo went near the two and dispersed them.16

Jun and Gil contended that Rogelio had failed to identify with moral certainty that
Gil had been one of those who inflicted the injury on him. They pointed out that
Rogelio had failed to categorically state that Gil and Banjo Mupas are one and the
same person. Moreover, they asserted that in Juns case, the prosecution had failed
to prove intent to kill and as such, he should be convicted only of the crime of
physical injuries.18
The Court of Appeals in a Decision19 dated 23 January 2006, in CA-G.R. CR. No.
27768, affirmed with modifications the decision of the trial court. The dispositive
portion of the decision reads:
WHEREFORE, the Decision appealed from convicting accusedappellants JUN MUPAS and GIL MUPAS alias BANJO MUPAS of
the crime of Frustrated Homicide is AFFIRMED with
MODIFICATION in that appellants are ordered to pay ROGELIO
MURAO in the amount of P4,000 as temperate damages.
SO ORDERED.20
After a review of the records of the case, the Court of Appeals concluded that Banjo
Mupas and Gil Mupas are one and the same person. The Court of Appeals observed
that when Banjo posted a bail bond in the case entitled "People of the Philippines
v. Jun Mupas and Banjo Mupas," he had made no objection to the caption of the
case and he had even signed his name as Gil Mupas. Secondly, when the
Information was amended to include Gils alias, Banjo did not interpose any
objection to the correction. Lastly, Rogelio had not been able to identify Banjo in
court due to the latters absence at the time of his testimony.21
The Court of Appeals likewise held that Jun already performed all the acts of
execution necessary to bring about the death of Rogelio which would have
transpired had it not been for the timely medical intervention. As such, the trial
court correctly found him liable for the crime of frustrated homicide. 22

Jun and Gil are now before the Court reiterating their assertion that the
prosecution failed to establish Gils identity as one of the perpetrators of the crime
and that his defense of denial was duly supported by clear and convincing
evidence.23 They also contend that on the assumption that Jun is guilty of having
committed a crime, he should only be convicted of the crime of physical injuries. 24

It appears then that Rogelio had at his disposal many witnesses who could have
supported his allegations but curiously and without any explanation, none of these
so-called witnesses were presented. It is thus Rogelios word against the
attestations of others. Such omission already raises a reasonable doubt as to the
guilt of the petitioners.

There is merit in the petition.

In contrast, the defense was able to present three (3) other witnesses than the
petitioners themselves. In the Courts view, Danilo Olpindo, one of the defense
witnesses, could hardly be called a biased witness contrary to the appellate courts
opinion. He may indeed be Juns second cousin but the appellate court failed to
consider that Danilo is likewise Rogelios third cousin29 which fact, in the Courts
estimation, cancels the supposed partiality based on kinship.

The Constitution mandates that an accused shall be presumed innocent until the
contrary is proven beyond reasonable doubt. The prosecution has the burden to
overcome such presumption of innocence by presenting the quantum of evidence
required. In addition, the prosecution must rest on its own merits and must not
rely on the weakness of the defense. In fact, if the prosecution fails to meet the
required quantum of evidence, the defense may logically not even present evidence
on its own behalf. In which case, the presumption of innocence shall prevail and
hence, the accused shall be acquitted. However, once the presumption of innocence
is overcome, the defense bears the burden of evidence to show reasonable doubt as
to the guilt of the accused. Reasonable doubt is that doubt engendered by an
investigation of the whole proof and an inability after such investigation to let the
mind rest each upon the certainty of guilt. Absolute certainty of guilt is not
demanded by the law to convict a criminal charge, but moral certainty is required
as to every proposition of proof requisite to constitute the offense. 25
The trial court solely hinged its judgment of conviction on the victim Rogelios lone
and uncorroborated testimony. While it is true that the testimony of one witness is
sufficient to sustain a conviction if such testimony establishes the guilt of the
accused beyond reasonable doubt, the Court rules that the testimony of one
witness in this case is not sufficient for this purpose.26 Apart from Rogelios
testimony, the Court observes that the prosecutions version of events has no leg to
stand on.
In his Sworn Statement27 dated 23 February 1993, Rogelio admitted that he had a
companion with him on that fateful incident named Eduardo Murao, Jr. He also
stated that there were other persons who may have witnessed the assault namely,
"Josephine Mendoza, Terisita Mico and one Mario Olpindo, the driver of the
tricycle." On the witness stand, Rogelio likewise testified that there had been others
who may have witnessed the incident including Eduardo Murao, Jr. and Teresita
Monis.28 Interestingly, Josephine Mendoza testified for the defense that she had
only witnessed a fistfight between Jun and Rogelio while Teresita Monis, also for
the defense, testified that she had only seen a hand reach inside the tricycle to hit
Rogelio.

Danilo Olpindo, Josefina Mendoza together with Jun and Gil are in agreement that
a fistfight occurred between Jun and Rogelio. In addition, Jun admitted that the
fighting continued inside a tricycle. Teresita Monis attested that this latter detail
did occur but was not able to identify whose hand it was that reached in the tricycle
and hit Rogelio.
Juxtaposing the testimonies of the witnesses, it can be safely deduced that a
fistfight occurred only between Jun and Rogelio which continued inside a tricycle.
Rogelios allegations of Banjos participation in the incident and that Jun carried
with him a bolo are uncorroborated and bereft of any proof. Absent proof of Gil
alias Banjos involvement in the incident, his acquittal is in order.
Assuming that Gil alias Banjo had any participation, there is likewise no evidence
that he or Jun had intent to kill Rogelio. Intent to kill is the principal element of
homicide or murder, in whatever stage of commission. Such intent must be proved
in a clear and evident manner to exclude every possible doubt as to the homicidal
intent of the aggressor.30
Although it can be fairly assumed that the injuries suffered by Rogelio were
sustained during the fistfight, it is not conclusive that the same were inflicted
purposely to kill him. For one, if Jun in fact had been carrying a bolo with intent of
killing Rogelio, and if indeed Banjo had conspired with Jun, it is no small wonder
why the wounds inflicted were more superficial than mortal, more mild than grave.
That Rogelio was able to go home shortly after the tricycle incident without being
pursued by his aggressor also shows that Jun and Banjo were not intent on beating
him to death or even leaving him for dead.31 It is thus wrong to infer that the intent
to kill was present in the absence of circumstances sufficient to prove this fact
beyond reasonable doubt.32 Moreover, Rogelios suggested motive for killing

him, i.e., his previous altercation with Jun, was too weak and shallow a reason to
kill under the circumstances.33
Notably, Dr. Martinez, Rogelios attending physician, opined that if Rogelios
wound was left untreated it could lead to his death, but at the same time he also
testified that such wound merely required suturing. He also testified that the
wound, which was only 2-3 cm long and whose depth he did not indicate, could
have been caused by a rough or sharp object not necessarily a knife. And in the
medical certificate he issued, he reported that the wounds sustained by Rogelio
would take two (2) weeks to heal.34 Dr. Martinez stated as follows:
Q And what did you do when you noticed the wounds on the patient
Rogelio Murao?
A I gave the necessary injections and medicines preliminary in suturing
the wound and treating the wound, sir.
Q

What particular kind of injections did you make on the patient?

A Regularly a patient who will undergo the kind of operation [sic] we

gave novaine injection[.] [T]hen after ten minutes we gave the local
anesthesia for suturing, sir.
Q

You said that you conducted surgery, what exactly did you do?

A After rushing and preparing the operative area and after giving the
novaine injection [sic] and I will now examine the kind of wound, it was a
two to three cms. long on the parietal area and partially cut and after
cleaning the wound, we put anesthesia and suture the wound, sir.
xxx
Q Particularly this cut wound which you mentioned as the wound on the
parietal area of the patient, what particularly [sic] did you do when you
said you applied surgery, did you do surgery only on the cut wound?
A I referred to injuries, damages tissues, we removed unnecessary
tissues, sir.
Q After removing the unnecessary tissues, and cut wound, what did you
do?

I have to suture, sir.

And in laymans language, what is meant by suture?

A We used the chromic sutures and followed by the skin suture which is
made of silk, sir.
Q Now, this cut would as you have said doctor, what would be the result
of this cut wound if it was not treated by you?
A

Death, sir.

How come it would result to death, if you did not treat the cut wound?

A In the first place according to the legal ethics made by Dr. Solis even if
there is slight wound on the head, it is considered serious because the
wound on the head is proximal to the brain, sir. Meaning, usually, it gets in
when the injuries were on the head, sir.35
xxx
Q You also stated that it is a cut wound which must have been caused by
a sharp instrument or bladed edge?
A

Sharp edge, sir.

xxx
Q

Because it is a cut wound, the tendency was not penetrating wound?

No, not penetrating wound, sir.

Q The wound is possible to have been caused by a knife or it might have

been caused by any sharp object not necessarily a knife or by any rough or
sharp object?
A

Yes, sir.36

Taken in its entirety, there is a dearth of medical evidence on record to sustain the
claim that petitioners had any intention to kill Rogelio. When such intent is lacking

but wounds were inflicted, the crime is not frustrated homicide but physical
injuries only and in this case, less serious physical injuries considering the
attending physicians opinion that the wounds sustained by Rogelio would take two
(2) weeks to heal.37
Although the Information charged petitioners with frustrated homicide, a finding
of guilt for the lesser offense of less serious physical injuries may be made
considering that the latter offense is necessarily included in the former, and since
the essential ingredients of physical injuries constitute and form part of those
constituting the offense of homicide.38
In sum, absent competent proof, Jun should be held liable only for the crime of less
serious physical injuries under Article 26539 of the Revised Penal Code, as
amended. Gil, alias Banjo, must be absolved from any liability for failure of the
prosecution to conclusively prove that he had conspired with Jun in the
commission of the crime or that he had any participation in it.
The Court sustains the appellate courts award of P4,000.00 as temperate
damages. Having suffered actual injuries, Rogelio is likewise entitled to moral
damages.40 The award of P5,000.00 as moral damages is sufficient under the
circumstances.41
WHEREFORE, the Petition is GRANTED IN PART and the Decision dated 23
January 2006 of the Court of Appeals in CA- G.R. CR. No. 27768 is MODIFIED.
Petitioner Jun Mupas is found GUILTY beyond reasonable doubt of the crime of
Less Serious Physical Injuries, and sentenced to suffer a straight prison term of
four (4) months and ten (10) days of arresto mayor in its maximum period, and to
pay Rogelio Murao the amount of Four Thousand Pesos (P4,000.00) as temperate
damages, and Five Thousand Pesos (P5,000.00) as moral damages.
Petitioner Gil Mupas is ACQUITTED and the bail bond posted for his provisional
liberty is cancelled and released.
SO ORDERED.

in turn affirmed the 8 January 2003 Resolution6 of the Office of the City
Prosecutor (OCP) of Quezon City.
The Assistant City Prosecutor for the OCP of Quezon City recommended the
dismissal of the criminal complaint, docketed as I.S. No. 02-12466, for violation of
Articles 172 (Falsification by Private Individuals and Use of Falsified Documents)
and 262 (Mutilation), both of the Revised Penal Code, in relation to Republic Act
No. 7610, otherwise known as "Child Abuse, Exploitation and Discrimination Act,"
for insufficiency of evidence.
The case stemmed from a complaint filed by petitioner Gloria Aguirre against
respondents Pedro B. Aguirre (Pedro Aguirre), Michelina S. Aguirre-Olondriz
(Olondriz), Dr. Juvido Agatep (Dr. Agatep), Dr. Marissa B. Pascual (Dr. Pascual)
and several John/Jane Does for falsification, mutilation and child abuse.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 170723

March 3, 2008

GLORIA PILAR S. AGUIRRE, petitioner,

vs.
SECRETARY OF THE DEPARTMENT OF JUSTICE, MICHELINA S.
AGUIRRE-OLONDRIZ, PEDRO B. AGUIRRE, DR. JUVIDO AGATEP and
DR. MARISSA B. PASCUAL, respondents.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari1 under Rule 45 of the Rules of Court, as
amended, petitioner Gloria Pilar S. Aguirre (Gloria Aguirre) seeks the reversal of
the 21 July 2005 Decision2 and 5 December 2005 Resolution,3 both of the Court of
Appeals in CA-G.R. SP No. 88370, entitled "Gloria Pilar S. Aguirre v. Secretary of
the Department of Justice, Michelina S. Aguirre-Olondriz, Dr. Juvido Agatep,
Dra. Marissa B. Pascual, Pedro B. Aguirre and John and Jane Does."
The Court of Appeals found no grave abuse of discretion on the part of the
Secretary of the Department of Justice (DOJ) when the latter issued the twin
resolutions dated 11 February 20044 and 12 November 2004,5 respectively, which

The antecedents of the present petition are:

Laureano "Larry" Aguirre7 used to be a charge of the Heart of Mary Villa, a child
caring agency run by the Good Shepherd Sisters and licensed by the Department of
Social Work and Development (DSWD). Sometime in 1978, respondent Pedro
Aguirre; the latter's spouse, Lourdes S. Aguirre (Lourdes Aguirre); and their four
daughters, who included petitioner Gloria Aguirre and respondent Olondriz, came
to know Larry, who was then just over a year old. The Aguirres would have Larry
spend a few days at their home and then return him to the orphanage thereafter. In
June 1980, Larry, then two years and nine months of age, formally became the
ward of respondent Pedro Aguirre and his spouse Lourdes Aguirre by virtue of
an Affidavit of Consent to Legal Guardianshipexecuted in their favor by Sister
Mary Concepta Bellosillo, Superior of the Heart of Mary Villa. On 19 June 1986,
the Aguirre spouses' guardianship of Larry was legalized when the Regional Trial
Court (RTC), Branch 3 of Balanga, Bataan, duly appointed them as joint coguardians over the person and property of Larry.
As Larry was growing up, the Aguirre spouses and their children noticed that his
developmental milestones were remarkably delayed. His cognitive and physical
growth did not appear normal in that "at age 3 to 4 years, Larry could only crawl on
his tummy like a frog x x x;"8 he did not utter his first word until he was three years
of age; did not speak in sentences until his sixth year; and only learned to stand up
and walk after he turned five years old. At age six, the Aguirre spouses first
enrolled Larry at the Colegio de San Agustin, Dasmarias Village, but the child
experienced significant learning difficulties there. In 1989, at age eleven, Larry was
taken to specialists for neurological and psychological evaluations. The
psychological evaluation9 done on Larry revealed the latter to be suffering from a
mild mental deficiency.10 Consequent thereto, the Aguirre spouses transferred
Larry to St. John Ma. Vianney, an educational institution for special children.

In November of 2001, respondent Dr. Agatep, a urologist/surgeon, was

approached concerning the intention to have Larry, then 24 years of age,
vasectomized. Prior to performing the procedure on the intended patient,
respondent Dr. Agatep required that Larry be evaluated by a psychiatrist in order
to confirm and validate whether or not the former could validly give his consent to
the medical procedure on account of his mental deficiency.
In view of the required psychiatric clearance, Larry was brought to respondent Dr.
Pascual, a psychiatrist, for evaluation. In a psychiatric report dated 21 January
2002, respondent Dr. Pascual made the following recommendation:
[T]he responsibility of decision making may be given to his parent or
guardian.11

Larry grew up with a very supportive adoptive family. He is the youngest in

the family of four sisters. Currently, his adoptive parents are already old
and have medical problem and thus, they could no longer monitor and
take care of him like before. His adoptive mother has Bipolar Mood
Disorder and used to physically maltreat him. A year ago, he had an
episode of dizziness, vomiting and headaches after he was hit by his
adoptive mother. Consult was done in Makati Medical Center and several
tests were done, results of which were consistent with his developmental
problem. There was no evidence of acute insults. The family subsequently
decided that he should stay with one of his sisters to avoid similar incident
and the possibility that he would retaliate although he has never hurt
anybody. There has been no episode of violent outburst or aggressive
behavior. He would often keep to himself when sad, angry or frustrated.

LAUREANO AGUIRRE, 24 years old, male, high school graduate of St.

John [Marie Vianney], was referred for psychiatric evaluation to determine
competency to give consent for vasectomy.

He is currently employed in the company of his sister and given

assignment to do some photocopying, usually in the mornings. He enjoys
playing billiards and basketball with his nephews and, he spends most of
his leisure time watching TV and listening to music. He could perform
activities of daily living without assistance except that he still needs
supervision in taking a bath. He cannot prepare his own meal and never
allowed to go out and run errands alone. He does not have friends and it is
only his adoptive family whom he has significant relationships. He claims
that he once had a girlfriend when he was in high school who was more
like a best friend to him. He never had sexual relations. He has learned to
smoke and drink alcohol few years ago through his cousins and the drivers.
There is no history of abuse of alcohol or any prohibited substances.

CLINICAL SUMMARY

MEDICAL STATUS EXAMINATION

Larry was adopted at age 3 from an orphanage and prenatal history is not
known to the adoptive family except that abortion was attempted.
Developmental milestones were noted to be delayed. He started to walk
and speak in single word at around age 5. He was enrolled in Colegio de
San Agustin at age 6 where he showed significant learning difficulties that
he had to repeat 1st and 4th grades. A consult was done in 1989 when he was
11 years old. Neurological findings and EEG results were not normal and
he was given Tecretol and Encephabol by his neurologist. Psychological
evaluation revealed mild to moderate mental retardation, special
education training was advised and thus, he was transferred to St. John
Marie Vianney. He finished his elementary and secondary education in the
said school. He was later enrolled in a vocational course at Don Bosco
which he was unable to continue. There has been no reported behavioral
problems in school and he gets along relatively well with his teachers and
some of his classmates.

The applicant was appropriately dressed. He was cooperative and he had

intermittent eye contact. Speech was spontaneous, soft, and relevant. He
responded to questions in single words or simple sentences. He was
anxious specially at the start of the interview, with full affect appropriate to
mood and thought content. There was no apparent thought or perceptual
disturbance. No suicidal/homicidal thoughts elicited. He was oriented to
time, place and person. He has intact remote and recent memory. He could
do simple calculation. He could write his name and read simple words. His
human figure was comparable to a 7-8 year old. He demonstrated fair
judgment and poor insight. He had fair impulse control.

the full text of which reads

PSYCHIATRY REPORT
21 January 2002
GENERAL DATA

PSYCHOLOGICAL TESTS

Psychological tests done on March 6, 1990 (Dr. Lourdes Ledesma) and on

August 4, 2000 (Dr. Ma. Teresa Gustilo-Villaosor) consistently revealed
mild to moderate mental deficiency.

Considering the above recommendation, respondent Pedro Aguirre's written

consent was deemed sufficient in order to proceed with the conduct of the
vasectomy. Hence, on 31 January 2002, respondent Dr. Agatep performed a
bilateral vasectomy on Larry.

SIGNIFICANT LABORATORY EXAMS RESULTS

CT scan done 09 January 2001 showed nonspecific right deep parietal
subcortical malacia. No localized mass lesion in the brain.
MRI done on 10 January 2001 showed bilateral parietal x x x volume loss,
encephalomalacia, gliosis and ulegyria consistent with sequela of postnatal
or neonatal infarcts. Ex-vacuo dilatation of the atria of lateral ventricles
associated thinned posterior half of the corpus callosum.

On 11 June 2002, petitioner Gloria Aguirre, respondent Pedro Aguirre's eldest

child, instituted a criminal complaint for the violation of the Revised Penal Code,
particularly Articles 172 and 262, both in relation to Republic Act No. 7610 against
respondents Pedro Aguirre, Olondriz, Dr. Agatep, Dr. Pascual and several
John/Jane Does before the Office of the City Prosecutor of Quezon City.
The Complaint Affidavit,13 docketed as I.S. No. 02-12466, contained the following
allegations:

Axis IV None at present

2. x x x Dr. Agatep and Dra. Pascual were (sic) medical practitioners

specializing in urology and psychiatry respectively; while respondent
Pedro B. Aguirre is my father; Michelina S. Aguirre-Olondriz is my sister,
and the victim Laureano "Larry" Aguirre xxx is my common law brother.
JOHN and JANE DOES were the persons who, acting upon the apparent
instructions of respondents Michelina Aguirre-Olondriz and/or Pedro B.
Aguirre, actually scouted, prospected, facilitated, solicited and/or procured
the medical services of respondents Dra. Pascual and Dr. Agatep vis--vis
the intended mutilation via bilateral vasectomy of my common law brother
Larry Aguirre subject hereof.

Axis V Current GAF = 50-60

xxxx

Larry's mental deficiency could be associated with possible perinatal

insults, which is consistent with the neuroimaging findings. Mental
retardation associated with neurological problems usually has poorer
prognosis. Larry is very much dependent on his family for his needs,
adaptive functioning, direction and in making major life decisions. At his
capacity, he may never understand the nature, the foreseeable risks and
benefits, and consequences of the procedure (vasectomy) that his family
wants for his protection. Thus, the responsibility of decision making may
be given to his parent or guardian.

4. Sometime in March 2002, however, the Heart of Mary Villa of the Good
Shepherd Sisters was furnished a copy of respondent Dra. Pascual's
Psychiatry Report dated 21 January 2004 by the "DSWD," in which my
common law brother "Larry" was falsely and maliciously declared
incompetent and incapable of purportedly giving his own consent to the
MUTILATION VIA BILATERAL VASECTOMY intended to be performed
on him by all the respondents.

ASSESSMENT AND RECOMMENDATION

Axis I None
Axis II Mental Retardation, mild to moderate type
Axis III None

Marissa B. Pascual, M.D.

Psychiatrist12

xxxx
6. Based on the foregoing charade and false pretenses invariably
committed by all of the respondents in conspiracy with each other, on 31
January 2002, my common law brother Larry Aguirre, although of legal
age but conspiratorially caused to be declared by respondents to be
"mentally deficient" and incompetent to give consent to his BILATERAL
VASECTOMY, was then intentionally, unlawfully, maliciously, feloniously
and/or criminally placed thereafter under surgery for MUTILATION VIA

"BILATERAL VASECTOMY" x x x, EVEN WITHOUT ANY

AUTHORIZATION ORDER from the GUARDIANSHIP COURT, nor
personal consent of Larry Aguirre himself.
In addition to the above, the complaint included therein an allegation that
v. x x x without a PRIOR medical examination, professional interview of
nor verification and consultation with my mother, Lourdes SabinoAguirre, respondent Dra. Pascual baselessly, fraudulently and with obvious
intent to defame and malign her reputation and honor, and worse, that of
our Sabido family, falsely concluded and diagnosed, via her falsified
Psychiatry Report, that my mother Lourdes Sabido-Aguirre purportedly
suffers from "BIPOLAR MOOD DISORDER" x x x.
To answer petitioner Gloria Aguirre's accusations against them, respondents Pedro
Aguirre, Olondriz, Dr. Agatep and Dr. Pascual submitted their respective CounterAffidavits.
In her defense,14 respondent Olondriz denied that she "prospected, scouted,
facilitated, solicited and/or procured any false statement, mutilated or abused" her
common-law brother, Larry Aguirre. Further, she countered that:
3. x x x While I am aware and admit that Larry went through a vasectomy
procedure, there is nothing in the Complaint which explains how the
vasectomy amounts to a mutilation.
xxxx
5. In any case, as I did not perform the vasectomy, I can state with
complete confidence that I did not participate in any way in the alleged
mutilation.
6. Neither did I procure or solicit the services of the physician who
performed the vasectomy, Dr. Juvido Agatep x x x. It was my father, Pedro
Aguirre, Larry's guardian, who obtained his services. I merely acted upon
his instructions and accompanied my brother to the physician,
respondents Dra. Marissa B. Pascual x x x.
xxxx
10. Neither does the Complaint explain in what manner the Complainant is
authorized or has any standing to declare that Larry's consent was not
obtained. Complainant is not the guardian or relative of Larry. While she

argues that Larry's consent should have been obtained the Complaint does
not dispute the psychiatrist's findings about Larry's inability to give
consent.
xxxx
13. x x x the Complaint does not even state what alleged participation was
falsified or the portion of the psychiatric report that allegedly states that
someone participated when in fact that person did not so participate.
xxxx
15. Again, I had no participation in the preparation of the report of Dr.
Pascual x x x.
xxxx
17. x x x the Complaint does not dispute that he (Larry) is mentally
deficient or incompetent to give consent.
xxxx
19. x x x I verified that the effect of a vasectomy operation was explained to
him (Larry) by both respondent doctors.
20. x x x I accompanied Larry and obeyed my father on the belief that my
father continues to be the legal guardian of Larry. I know of no one else
who asserts to be his legal guardian x x x.15
Alleging the same statement of facts and defenses, respondent Pedro Aguirre
argues against his complicity in the crime of mutilation as charged and asserts
that:
5. In any case, as I did not perform the vasectomy, I can state with
complete confidence that I did not participate in any way in the alleged
mutilation.16
Nevertheless, he maintains that the vasectomy performed on Larry does not in any
way amount to mutilation, as the latter's reproductive organ is still completely
intact.17 In any case, respondent Pedro Aguirre explains that the procedure
performed is reversible through another procedure called Vasovasostomy, to wit:

8. I understand that vasectomy is reversible through a procedure called

Vasovasostomy. I can also state with confidence that the procedure enables
men who have undergone a vasectomy to sire a child. Hence,
no permanent damage was caused by the procedure.
Respondent Pedro Aguirre challenges the charge of falsification in the complaint,
to wit:
14. x x x I did not make it appear that any person participated in any act or
proceeding when that person did not in fact participate x x x.
xxxx
16. x x x I had no participation in the preparation of the report of Dra.
Pascual. She arrived at her report independently, using her own
professional judgment x x x.
xxxx
31. What I cannot understand about Petita's Complaint is how Larry is
argued to be legally a child under the definition of one law but nonetheless
and simultaneously argued to be capacitated to give his consent as fully as
an adult.18
Respondent Pedro Aguirre further clarifies that co-guardianship over Larry had
been granted to himself and his wife, Lourdes Aguirre, way back on 19 June 1986
by the Regional Trial Court, Branch 3 of Balanga, Bataan. Respondent Pedro
Aguirre contends that being one of the legal guardians, consequently, parental
authority over Larry is vested in him. But assuming for the sake of argument that
Larry does have the capacity to make the decision concerning his vasectomy,
respondent Pedro Aguirre argues that petitioner Gloria Aguirre has no legal
personality to institute the subject criminal complaint, for only Larry would have
the right to do so.
Just as the two preceding respondents did, respondent Dr. Agatep also disputed
the allegations of facts stated in the Complaint. Adopting the allegations of his corespondents insofar as they were material to the charges against him, he
vehemently denied failing to inform Larry of the intended procedure. In his
counter-statement of facts he averred that:
(b) x x x I scheduled Larry for consultative interview x x x wherein I
painstakingly explained what vasectomy is and the consequences thereof;
but finding signs of mental deficiency, x x x I advised his relatives and his

nurse who accompanied him to have Larry examined by a psychiatrist who

could properly determine whether or not Larry x x x can really give his
consent, thus I required them to secure first a psychiatric evaluation and
clearance prior to the contemplated procedure.
(c) On January 21, 2002, I was furnished a copy of a psychiatric report
prepared by Dr. Marissa Pascual x x x. In her said report, Dr. Pascual
found Larry to suffer from "mental retardation, mild to moderate type"
and further stated that "at his capacity, he may never understand the
nature, the foreseeable risks and benefits and consequences of the
procedure (vasectomy) x x x, thus the responsibility of decision making
may be given to his parent or guardian x x x."
(d) x x x I was likewise furnished a copy of an affidavit executed by Pedro
Aguirre stating that he was the legal guardian of Larry x x x Pedro Aguirre
gave his consent to vasectomize Larry x x x.
(e) Only then, specifically January 31, 2002, vasectomy was performed
with utmost care and diligence.19
In defense against the charge of falsification and mutilation, respondent Dr.
Agatep argued that subject complaint should be dismissed for the following
reasons:
1. The complainant has no legal personality to file this case. As mentioned
above, she is only a common law sister of Larry who has a legal guardian in
the person of Pedro Aguirre, one of the herein respondents x x x.
2. x x x [t]he allegations in the complaint clearly centers on the condition
of complainant's mother, Lourdes Aguirre, her reputation, and miserably
fails to implicate the degree of participation of herein respondent. x x x
xxxx
(b) Falsification. x x x I strongly aver that this felony does not apply to me
since it clearly gives reference to co-respondent, Dr. Marissa Pascual's
Psychiatry Report, dated January 21, 2002, in relation with her field of
profession, an expert opinion. I do not have any participation in the
preparation of said report, x x x neither did I utilized (sic) the same in any
proceedings to the damage to another. x x x I also deny using a falsified
document x x x.

(c) Mutilation. x x x Vasectomy does not in anyway equate to castration

and what is touched in vasectomy is not considered an organ in the context
of law and medicine, it is quite remote from the penis x x x.
(d) Child Abuse. x x x the complaint-affidavit is very vague in specifying
the applicability of said law. It merely avers that Laureano "Larry" Aguirre
is a child, and alleges his father, Pedro Aguirre, has parental authority over
him x x x.20
Similarly, respondent Dr. Pascual denied the criminal charges of falsification and
mutilation imputed to her. She stands by the contents of the assailed Psychiatric
Report, justifying it thus:
x x x My opinion of Larry Aguirre's mental status was based on my own
personal observations, his responses during my interview of him, the
results of the two (2) psychological tests conducted by clinical
psychologists, the results of laboratory tests, including a CT Scan and MRI,
and his personal and family history which I obtained from his sister,
Michelina Aguirre-Olondriz x x x.
5. x x x the reference in my report concerning Mrs. Lourdes Aguirre is not
a statement of my opinion of Mrs. Aguirre's mental status, x x x. Rather, it
is part of the patient's personal and family history as conveyed to me by
Mrs. Aguirre-Olondriz.
6. x x x An expression of my opinion, especially of an expert opinion,
cannot give rise to a charge for falsification. A contrary opinion by another
expert only means that the experts differ, and does not necessarily reflect
on the truth or falsity of either opinion x x x.
7. x x x I never stated that I examined Mrs. Aguirre, because I never did x x
x.
8. I had no participation in the surgery performed on Larry Aguirre except
to render an opinion on his capacity to give informed consent to the
vasectomy x x x.
9. Without admitting the merits of the complaint, I submit that
complainants are not the proper persons to subscribe to the same as they
are not the offended party, peace officer or other public officer charged
with the enforcement of the law violated x x x.21

The Assistant City Prosecutor held that the circumstances attendant to the case did
not amount to the crime of falsification. He held that
[T]he claim of the complainant that the Psychiatric Report was falsified,
because consent was not given by Larry Aguirre to the vasectomy and/or
he was not consulted on said operation does not constitute falsification. It
would have been different if it was stated in the report that consent was
obtained from Larry Aguirre or that it was written therein that he was
consulted on the vasectomy, because that would mean that it was made to
appear in the report that Larry Aguirre participated in the act or
proceeding by giving his consent or was consulted on the matter when in
truth and in fact, he did not participate. Or if not, the entry would have
been an untruthful statement. But that is not the case. Precisely (sic) the
report was made to determine whether Larry Aguirre could give his
consent to his intended vasectomy. Be that as it may, the matter of Larry's
consent having obtained or not may nor be an issue after all, because
complainant's (sic) herself alleged that Larry's mental condition is that of a
child, who can not give consent. Based on the foregoing consideration, no
falsification can be established under the circumstances.22
Even the statement in the Psychiatric Report of respondent Dr. Pascual that
Lourdes Aguirre had Bipolar Mood Disorder cannot be considered falsification
since
The report did not state that Lourdes Aguirre was in fact personally
interviewed by respondent Dr. Pascual and that the latter concluded that
Lourdes Aguirre has Bipolar Mood Disorder. The report merely quoted
other sources of information with respect to the condition of Lourdes
Aguirre, in the same manner that the fact that Lourdes Aguirre was
physically abusing Larry Aguirre was also not of Dra. Pascual personal
knowledge. But the fact that Dra. Pascual cited finding, which is not of her
own personal knowledge in her report does not mean that she committed
falsification in the process. Her sources may be wrong and may affect the
veracity of her report, but for as long as she has not alleged therein that she
personally diagnosed Lourdes Aguirre, which allegation would not then be
true, she cannot be charged of falsification. Therefore, it goes without
saying that if the author of the report is not guilty, then with more reason
the other respondents are not liable.23
Respecting the charge of mutilation, the Assistant City Prosecutor also held that
the facts alleged did not amount to the crime of mutilation as defined and
penalized under Article 262 of the Revised Penal Code, i.e., "[t]he vasectomy
operation did not in any way deprived (sic) Larry of his reproductive organ, which
is still very much part of his physical self." He ratiocinated that:

While the operation renders him the inability (sic) to procreate, the
operation is reversible and therefore, cannot be the permanent damage
contemplated under Article 262 of the Revised Penal Code. 24
The Assistant City Prosecutor,25 in a Resolution26 dated 8 January 2003, found no
probable cause to hold respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr.
Pascual liable for the complaint of falsification and mutilation, more specifically,
the violation of Articles 172 and 262 of the Revised Penal Code, in relation to
Republic Act No. 7610. Accordingly, the Assistant City Prosecutor recommended
the dismissal of petitioner Gloria Aguirre's complaint for insufficiency of evidence.
The dispositive portion of the resolution reads:

WHEREFORE, premises considered, the present petition is hereby

DENIED DUE COURSE and accordingly DISMISSED for lack of merit.
Consequently, the assailed Resolutions dated February 11, 2004 and
November 12, 2004 of the Secretary of Justice in I.S. No. 02-12466 are
hereby AFFIRMED.30
Petitioner Gloria Aguirre's motion for reconsideration proved futile as it was
denied by the appellate court in a Resolution dated 5 December 2005.
Hence, the present petition filed under Rule 45 of the Rules of Court, as amended,
premised on the following arguments:

WHEREFORE, it is recommended that the above-entitled case be

dismissed for insufficiency of evidence.27
On 18 February 2003, petitioner Gloria Aguirre appealed the foregoing resolution
to the Secretary of the DOJ by means of a Petition for Review.28
In a Resolution dated 11 February 2004, Chief State Prosecutor Jovencito R. Zuo,
for the Secretary of the DOJ, dismissed the petition. In resolving said appeal, the
Chief State Prosecutor held that:
Under Section 12, in relation to Section 7, of Department Circular No. 70
dated July 3, 2000, the Secretary of Justice may, motu proprio, dismiss
outright the petition if there is no showing of any reversible error in the
questioned resolution or finds the same to be patently without merit.
We carefully examined the petition and its attachments and found no error
that would justify a reversal of the assailed resolution which is in accord
with the law and evidenced (sic) on the matter.29
Petitioner Gloria Aguirre's Motion for Reconsideration was likewise denied with
finality by the DOJ in another Resolution dated 12 November 2004.
Resolute in her belief, petitioner Gloria Aguirre went to the Court of Appeals by
means of a Petition for Certiorari, Prohibition and Mandamus under Rule 65 of
the Rules of Court, as amended.
On 21 July 2005, the Court of Appeals promulgated its Decision dismissing
petitioner Gloria Aguirre's recourse for lack of merit.
The fallo of the assailed decision reads:

I.
THE COURT OF APPEALS COMMITTED SERIOUS, GRAVE AND
REVERSIBLE ERRORS OF LAW WHEN IT CONCLUDED, BASED
PURPORTEDLY ON THE INTERNET WHICH RUNS AMUCK WITH
OUR SYSTEM OF THE RULE OF LAW AND THE EVIDENCE ON
RECORD, THAT BILATERAL VASECTOMY IS PURPORTEDLY 100%
REVERSIBLE BY A FUTURE MEDICAL PROCEDURE HENCE NOT
AMOUNTING TO MUTILATION, X X X; AND
xxxx
II.
WORSE, THE COURT OF APPEALS COMMITTED GRAVE, SERIOUS
AND REVERSIBLE ERRORS OF LAW WHEN IT REFUSED TO DIRECT
THE INDICTMENT OF THE PRIVATE RESPONDENTS FOR
MUTILATION AND FALSIFICATION DESPITE THE EXISTENCE OF
SUFFICIENT PROBABLE CAUSE THEREFOR X X X.31
The foregoing issues notwithstanding, the more proper issue for this Court's
consideration is, given the facts of the case, whether or not the Court of Appeals
erred in ruling that the DOJ did not commit grave abuse of discretion amounting
to lack or excess of jurisdiction when the latter affirmed the public prosecutor's
finding of lack of probable cause for respondents Pedro Aguirre, Olondriz, Dr.
Agatep and Dr. Pascual to stand trial for the criminal complaints of falsification
and mutilation in relation to Republic Act No. 7610.
In ruling that the DOJ did not commit grave abuse of discretion amounting to lack
or excess of jurisdiction, the Court of Appeals explained that:

Evidently, the controversy lies in the permanency of sterilization as a result

of a vasectomy operation, and the chances of restoring fertility with a
reversal surgery x x x.

public prosecutor."37 More importantly, "the element[s] of castration or mutilation

of an organ necessary for generation is completely absent as he was not deprived of
any organ necessary for reproduction, much less the destruction of such organ." 38

We sustain the DOJ in ruling that the bilateral vasectomy performed on

Larry does not constitute mutilation even if intentionally and purposely
done to prevent him from siring a child.

Likewise, in support of the decision of the Court of Appeals, respondents Pedro

Aguirre and Olondriz assert that, fundamentally, petitioner Gloria Aguirre has no
standing to file the complaint, as she has not shown any injury to her person or
asserted any relationship with Larry other than being his "common law sister";
further, that she cannot prosecute the present case, as she has not been authorized
by law to file said complaint, not being the offended party, a peace officer or a
public officer charged with the enforcement of the law. Accordingly, respondents
Pedro Aguirre and Olondriz posit that they, together with the other respondents
Dr. Agatep and Dr. Pascual, may not be charged with, prosecuted for and
ultimately convicted of: 1) "mutilation x x x since the bilateral vasectomy
conducted on Larry does not involve castration or amputation of an organ
necessary for reproduction as the twin elements of the crime of mutilation x x x are
absent"39; and 2) "falsification x x x since the acts allegedly constituting
falsification involve matters of medical opinion and not matters of fact," 40 and that
petitioner Gloria Aguirre failed to prove damage to herself or to any other person.

xxxx
Sterilization is to be distinguished from castration: in the latter act the
reproductive capacity is permanently removed or damaged.32
It then concluded that:
The matter of legal liability, other than criminal, which private
respondents may have incurred for the alleged absence of a valid consent
to the vasectomy performed on Larry, is certainly beyond the province of
this certiorari petition. Out task is confined to the issue of whether or not
the Secretary of Justice and the Office of the City Prosecutor of Quezon
City committed grave abuse of discretion in their determining the
existence or absence of probable cause for filing criminal cases
for falsification and mutilation under Articles 172 (2) and 262 of
the Revised Penal Code.33
Petitioner Gloria Aguirre, however, contends that the Court of Appeals and the
DOJ failed to appreciate several important facts: 1) that bilateral vasectomy
conducted on petitioner's brother, Larry Aguirre, was admitted34; 2) that the
procedure caused the perpetual destruction of Larry's reproductive organs of
generation or conception;353) that the bilateral vasectomy was intentional and
deliberate to deprive Larry forever of his reproductive organ and his capacity to
procreate; and 4) that respondents, "in conspiracy with one another, made not only
one but two (2) untruthful statements, and not mere inaccuracies when they made
it appear in the psychiatry report"36that a) Larry's consent was obtained or at the
very least that the latter was informed of the intended vasectomy; and b) that
Lourdes Aguirre was likewise interviewed and evaluated. Paradoxically, however,
petitioner Gloria Aguirre does not in any way state that she, instead of respondent
Pedro Aguirre, has guardianship over the person of Larry. She only insists that
respondents should have obtained Larry's consent prior to the conduct of the
bilateral vasectomy.
In contrast, the Office of the Solicitor General (OSG), for public respondent DOJ,
argues that "the conduct of preliminary investigation to determine the existence of
probable cause for the purpose of filing (an) information is the function of the

Respondent Dr. Agatep, in the same vein, stresses that vasectomy is not mutilation.
He elucidates that vasectomy is merely the "excision of the vas deferens, the duct in
testis which transport semen"41; that it is the penis and the testis that make up the
male reproductive organ and not the vas deferens; and additionally argues that for
the crime of mutilation to be accomplished, Article 262 of the Revised Penal Code
necessitates that there be intentional total or partial deprivation of some essential
organ for reproduction. Tubes, seminal ducts, vas deferens or prostatic urethra not
being organs, respondent Dr. Agatep concludes, therefore, that vasectomy does not
correspond to mutilation.
Anent the charge of falsification of a private document, respondent Dr. Agatep
asseverates that he never took part in disclosing any information, data or facts as
contained in the contentious Psychiatric Report.
For her part, respondent Dr. Pascual insists that the assailed Psychiatry Report was
the result of her independent exercise of professional judgment. "Rightly or
wrongly, (she) diagnosed Larry Aguirre to be incapable of giving consent, based on
interviews made by the psychiatrist on Larry Aguirre and persons who interacted
with him."42And supposing that said report is flawed, it is, at most, an erroneous
medical diagnosis.
The petition has no merit.

Probable cause has been defined as the existence of such facts and circumstances
as would excite belief in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of the crime for
which he was prosecuted.43 The term does not mean "actual and positive cause" nor
does it import absolute certainty.44 It is merely based on opinion and reasonable
belief;45 that is, the belief that the act or omission complained of constitutes the
offense charged. A finding of probable cause merely binds over the suspect to stand
trial. It is not a pronouncement of guilt.46

enjoined or to act in contemplation of law. Grave abuse of discretion is not

enough.51 Excess of jurisdiction signifies that he had jurisdiction over the case but
has transcended the same or acted without authority.52

The executive department of the government is accountable for the prosecution of

crimes, its principal obligation being the faithful execution of the laws of the land.
A necessary component of the power to execute the laws is the right to prosecute
their violators,47 the responsibility of which is thrust upon the DOJ. Hence, the
determination of whether or not probable cause exists to warrant the prosecution
in court of an accused is consigned and entrusted to the DOJ. And by the nature of
his office, a public prosecutor is under no compulsion to file a particular criminal
information where he is not convinced that he has evidence to prop up the
averments thereof, or that the evidence at hand points to a different conclusion.

In ruling the way he did that no probable cause for falsification and mutilation
exists - the Assistant City Prosecutor deliberated on the factual and legal milieu of
the case. He found that there was no sufficient evidence to establish a prima
facie case for the crimes complained of as defined and punished under Articles 172,
paragraph 2, and 262 of the Revised Penal Code in relation to Republic Act No.
7610, respectively. Concerning the crime of falsification of a private document, the
Assistant City Prosecutor reasoned that the circumstances attendant to the case did
not amount to the crime complained of, that is, the lack of consent by Larry
Aguirre before he was vasectomized; or the fact that the latter was not consulted.
The lack of the two preceding attendant facts do not in any way amount to
falsification, absent the contention that it was made to appear in the assailed
report that said consent was obtained. That would have been an untruthful
statement. Neither does the fact that the Psychiatric Report state that Lourdes
Aguirre has Bipolar Mood Disorder by the same token amount to falsification
because said report does not put forward that such finding arose after an
examination of the concerned patient. Apropos the charge of mutilation, he
reasoned that though the vasectomy rendered Larry unable to procreate, it was not
the permanent damage contemplated under the pertinent provision of the penal
code.

Put simply, public prosecutors under the DOJ have a wide range of discretion, the
discretion of whether, what and whom to charge, the exercise of which depends on
a smorgasbord of factors which are best appreciated by (public) prosecutors. 48 And
this Court has consistently adhered to the policy of non-interference in the conduct
of preliminary investigations, and to leave to the investigating prosecutor sufficient
latitude of discretion in the determination of what constitutes sufficient evidence
as will establish probable cause for the filing of an information against the
supposed offender.49
But this is not to discount the possibility of the commission of abuses on the part of
the prosecutor. It is entirely possible that the investigating prosecutor may
erroneously exercise the discretion lodged in him by law. This, however, does not
render his act amenable to correction and annulment by the extraordinary remedy
of certiorari, absent any showing of grave abuse of discretion amounting to excess
of jurisdiction.50
Prescinding from the above, the court's duty in an appropriate case, therefore, is
confined to a determination of whether the assailed executive determination of
probable cause was done without or in excess of jurisdiction resulting from a grave
abuse of discretion. For courts of law to grant the extraordinary writ of certiorari,
so as to justify the reversal of the finding of whether or not there exists probable
cause to file an information, the one seeking the writ must be able to establish that
the investigating prosecutor exercised his power in an arbitrary and despotic
manner by reason of passion or personal hostility, and it must be patent and gross
as would amount to an evasion or to a unilateral refusal to perform the duty

Applying the foregoing disquisition to the present petition, the reasons of the
Assistant City Prosecutor in dismissing the criminal complaints for falsification
and mutilation, as affirmed by the DOJ, is determinative of whether or not he
committed grave abuse of discretion amounting to lack or excess of jurisdiction.

We agree. Grave abuse of discretion amounting to lack or excess of jurisdiction on

the part of the DOJ and the Assistant City Prosecutor was not shown in the present
case.
In the present petition, respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr.
Pascual are charged with violating Articles 172 and 262 of the Revised Penal Code,
in relation to Republic Act No. 7610. Article 172, paragraph 2 of the Revised Penal
Code, defines the crime of falsification of a private document, viz
Art. 172. Falsification by private individuals and use of falsified
documents. The penalty of prision correccional in its medium and
maximum periods and a fine of not more than 5,000 pesos shall be
imposed upon:
xxxx

2. Any person who, to the damage of a third party, or with the intent to
cause such damage, shall in any private document commit any of the acts
of falsification enumerated in the next preceding article.
Petitioner Gloria Aguirre charges respondents with falsification of a private
document for conspiring with one another in keeping Larry "in the dark about the
foregoing (vasectomy) as the same was concealed from him by the respondents x x
x,"53 as well as for falsely concluding and diagnosing Lourdes Aguirre to be
suffering from Bipolar Mood Disorder.
A scrutiny, however, of Article 171 of the Revised Penal Code which defines the acts
constitutive of falsification, that is
Art. 171. x x x shall falsify a document by committing any of the following
acts:
1. Counterfeiting or imitating any handwriting, signature, or
rubric;
2. Causing it to appear that persons have participated in any act or
proceeding when they did not in fact so participate;
3. Attributing to persons who have participated in an act or
proceeding statements other than those in fact made by them;
4. Making untruthful statements in a narration of facts;
5. Altering true dates;
6. Making any alteration or intercalation in a genuine document
which changes its meaning;
7. Issuing in an authenticated form a document purporting to be a
copy of an original document when no such original exists, or
including in such copy a statement contrary to, or different from,
that of the genuine original; or
8. Intercalating any instrument or note relative to the issuance
thereof in a protocol, registry, or official book.
vis--vis the much criticized Psychiatric Report, shows that the acts complained of
do not in any manner, by whatever stretch of the imagination, fall under any of the
eight (8) enumerated acts constituting the offense of falsification.

In order to properly address the issue presented by petitioner Gloria Aguirre, it is

necessary that we discuss the elements of the crime of falsification of private
document under the Revised Penal Code, a crime which all the respondents have
been accused of perpetrating. The elements of said crime under paragraph 2 of
Article 172 of our penal code are as follows: 1) that the offender committed any acts
of falsification, except those in par. 7, enumerated in Article 171; 2) that the
falsification was committed in any private document; and 3) that the falsification
caused damage to a third party or at least the falsification was committed with
intent to cause such damage. Under Article 171, paragraph 2, a person may commit
falsification of a private document by causing it to appear in a document that a
person or persons participated in an act or proceeding, when such person or
persons did not in fact so participate in the act or proceeding. On the other hand,
falsification under par. 3 of the same article is perpetrated by a person or persons
who, participating in an act or proceeding, made statements in that act or
proceeding and the offender, in making a document, attributed to such person or
persons statements other than those in fact made by such person or persons. And
the crime defined under paragraph 4 thereof is committed when 1) the offender
makes in a document statements in a narration of facts; 2) he has a legal obligation
to disclose the truth of the facts narrated by him; 3) the facts narrated by the
offender are absolutely false; and 4) the perversion of truth in the narration of facts
was made with the wrongful intent of injuring a third person.
Applying the above-stated elements of the crime to the case at bar, in order that
respondent Dr. Pascual, and the rest acting in conspiracy with her, to have
committed the crime of falsification under par. 3 and 4 of Article 171 of the Revised
Penal Code, it is essential that that there be prima facie evidence to show that she
had caused it to appear that Larry gave his consent to be vasectomized or at the
very least, that the proposed medical procedure was explained to Larry. But in the
assailed report, no such thing was done. Lest it be forgotten, the reason for having
Larry psychiatrically evaluated was precisely to ascertain whether or not he can
validly consent with impunity to the proposed vasectomy, and not to obtain his
consent to it or to oblige respondent Dr. Pascual to explain to him what the import
of the medical procedure was. Further, that Larry's consent to be vasectomized was
not obtained by the psychiatrist was of no moment, because nowhere is it stated in
said report that such assent was obtained. At any rate, petitioner Gloria Aguirre
contradicts her very own allegations when she persists in the contention that Larry
has the mental age of a child; hence, he was legally incapable of validly consenting
to the procedure.
In the matter of the supposed incorrect diagnosis of Lourdes Aguirre, with regard
to paragraph 2 of Article 171 of the Revised Penal Code, we quote with approval the
succinct statements of the Assistant City Prosecutor:
[T]he fact that Dra. Pascual cited finding, which is not of her own personal
knowledge in her report does not mean that she committed falsification in

the process. Her sources may be wrong and may affect the veracity of her
report, but for as long as she has not alleged therein that she personally
diagnosed Lourdes Aguirre, which allegation would not then be true, she
cannot be charged of falsification. Therefore, it goes without saying that if
the author of the report is not guilty, then with more reason the other
respondents are not liable.54
As to the charge of mutilation, Art. 262 of the Revised Penal Code defines the crime
as
Art. 262. Mutilation. The penalty of reclusion temporal to reclusion
perpetua shall be imposed upon any person who shall intentionally
mutilate another by depriving him, either totally or partially, of some
essential organ for reproduction.
Any other intentional mutilation shall be punished by prision mayor in its
medium and maximum periods.
A straightforward scrutiny of the above provision shows that the elements55 of
mutilation under the first paragraph of Art. 262 of the Revised Penal Code to be 1)
that there be a castration, that is, mutilation of organs necessary for generation;
and 2) that the mutilation is caused purposely and deliberately, that is, to deprive
the offended party of some essential organ for reproduction. According to the
public prosecutor, the facts alleged did not amount to the crime of mutilation as
defined and penalized above, i.e., "[t]he vasectomy operation did not in any way
deprived (sic) Larry of his reproductive organ, which is still very much part of his
physical self." Petitioner Gloria Aguirre, however, would want this Court to make a
ruling that bilateral vasectomy constitutes the crime of mutilation.
This we cannot do, for such an interpretation would be contrary to the intentions
of the framers of our penal code.
A fitting riposte to the issue at hand lies in United States v. Esparcia,56 in which
this Court had the occasion to shed light on the implication of the term mutilation.
Therein we said that:
The sole point which it is desirable to discuss is whether or not the crime
committed is that defined and penalized by article 414 of the Penal Code.
The English translation of this article reads: "Any person who shall
intentionally castrate another shall suffer a penalty ranging from reclusion
temporal to reclusion perpetua." The Spanish text, which should govern,
uses the word "castrare," inadequately translated into English as
"castrate." The word "capar," which is synonymous of "castrar," is defined
in the Royal Academic Dictionary as the destruction of the organs of

generation or conception. Clearly it is the intention of the law to punish

any person who shall intentionally deprived another of any organ
necessary for reproduction. An applicable construction is that of Viada in
the following language:
"At the head of these crimes, according to their order of gravity, is the
mutilation known by the name of 'castration' which consists of the
amputation of whatever organ is necessary for generation. The law could
not fail to punish with the utmost severity such a crime, which, although
not destroying life, deprives a person of the means to transmit it. But bear
in mind that according to this article in order for 'castration' to exist, it is
indispensable that the 'castration' be made purposely. The law does not
look only to the result but also to the intention of the act. Consequently, if
by reason of an injury or attack, a person is deprived of the organs of
generation, the act, although voluntary, not being intentional to that end, it
would not come under the provisions of this article, but under No. 2 of
article 431." (Viada, Codigo Penal, vol. 3, p. 70. See to same effect, 4
Groizard, Codigo Penal, p. 525.)
Thus, the question is, does vasectomy deprive a man, totally or partially, of some
essential organ of reproduction? We answer in the negative.
In the male sterilization procedure of vasectomy, the tubular passage, called the
vas deferens, through which the sperm (cells) are transported from the testicle to
the urethra where they combine with the seminal fluid to form the ejaculant, is
divided and the cut ends merely tied.57 That part, which is cut, that is, the vas
deferens, is merely a passageway that is part of the duct system of the male
reproductive organs. The vas deferens is not an organ,i.e., a highly organized unit
of structure, having a defined function in a multicellular organism and consisting
of a range of tissues.58 Be that as it may, even assuming arguendo that the tubular
passage can be considered an organ, the cutting of the vas deferens does not divest
or deny a man of any essential organ of reproduction for the simple reason that it
does not entail the taking away of a part or portion of the male reproductive
system. The cut ends, after they have been tied, are then dropped back into the
incision.59
Though undeniably, vasectomy denies a man his power of reproduction, such
procedure does not deprive him, "either totally or partially, of some essential organ
for reproduction." Notably, the ordinary usage of the term "mutilation" is the
deprivation of a limb or essential part (of the body),60 with the operative expression
being "deprivation." In the same manner, the word "castration" is defined as the
removal of the testies or ovaries.61Such being the case in this present petition, the
bilateral vasectomy done on Larry could not have amounted to the crime of
mutilation as defined and punished under Article 262, paragraph 1, of the Revised

Penal Code. And no criminal culpability could be foisted on to respondent Dr.

Agatep, the urologist who performed the procedure, much less the other
respondents. Thus, we find sufficient evidence to explain why the Assistant City
Prosecutor and the DOJ ruled the way they did. Verily, We agree with the Court of
Appeals that the writ of certiorari is unavailing; hence, should not be issued.
It is once more apropos to pointedly apply the Court's general policy of noninterference in the conduct of preliminary investigations. As it has been oft said,
the Supreme Court cannot order the prosecution of a person against whom the
prosecutor does not find sufficient evidence to support at least a prima
facie case.62 The courts try and absolve or convict the accused but, as a rule, have
no part in the initial decision to prosecute him.63 The possible exception to this rule
is where there is an unmistakable showing of a grave abuse of discretion
amounting to lack or excess of jurisdiction that will justify judicial intrusion into
the precincts of the executive. But that is not the case herein.
WHEREFORE, premises considered, the instant petition is DENIED for lack of
merit. The assailed 21 July 2005Decision and 5 December 2005 Resolution, both
of the Court of Appeals in CA-G.R. SP No. 88370 are herebyAFFIRMED. Costs
against petitioner Gloria Aguirre. SO ORDERED.

Republic of the Philippines

SUPREME COURT
Baguio City
THIRD DIVISION
G.R. No. 167766

April 7, 2010

ENGR. CARLITO PENTECOSTES, JR., Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
Assailed before Us is the Decision1 of the Court of Appeals (CA), dated February 18,
2005, in CA-G.R. CR. No. 27458, which affirmed with modification the Decision 2 of
the Regional Trial Court (RTC) of Aparri, Cagayan, Branch 6, in Criminal Case No.

VI-984, finding petitioner Engr. Carlito Pentecostes, Jr. guilty of the crime of less
serious physical injuries instead of attempted murder, and the Resolution3 dated
April 19, 2005, denying the motion for reconsideration.
The antecedents are as follows:
On September 2, 1998, Rudy Baclig was drinking with his brother-in-law. After
consuming bottle of gin, he left and went to the house of a certain Siababa to
buy coffee and sugar. He was accompanied by his four- year-old son. On their way
there, a gray automobile coming from the opposite direction passed by them. After
a while, he noticed that the vehicle was moving backward towards them. When the
car was about two arms length from where they were, it stopped and he heard the
driver of the vehicle call him by his nickname Parrod. Rudy came closer, but after
taking one step, the driver, which he identified as the petitioner, opened the door
and while still in the car drew a gun and shot him once, hitting him just below the
left armpit. Rudy immediately ran at the back of the car, while petitioner sped
away. After petitioner left, Rudy and his son headed to the seashore. Rudy later
went back to the place where he was shot and shouted for help.4
The people who assisted him initially brought him to the Municipal Hall of
Gonzaga, Cagayan, where he was interrogated by a policeman who asked him to
identify his assailant. He informed the policeman that petitioner was the one who
shot him. After he was interrogated, he was later brought to the Don Alfonso Ponce
Memorial Hospital at Gonzaga, Cagayan. The following day, he was discharged
from the hospital.5
On June 1, 1999, an Information6 was filed by the Provincial Prosecutor of Aparri,
Cagayan, charging the petitioner of frustrated murder, the pertinent portion of
which reads:
That on or about September 2, 1998, in the [M]unicipality of Gonzaga, [P]rovince
of Cagayan, and within the jurisdiction of this Honorable Court, the above-named
accused, armed with a gun, with intent to kill, with evident premeditation and with
treachery, did then and there willfully, unlawfully and feloniously assault, attack
and shoot one Rudy Baclig, inflicting upon the latter gunshot injuries.
That the accused had performed all the acts of execution which would have
produce[d] the crime of Murder as a consequence, but which, nevertheless, did not
produce it by reason of causes independent of his own will.
That the same was aggravated by the use of an unlicensed firearm.

CONTRARY TO LAW.
Duly arraigned, petitioner pleaded Not Guilty to the crime as charged.7
During the trial, it was established that at the time the incident occurred, petitioner
was employed by the National Irrigation Administration (NIA) as Irrigation
Superintendent assigned at the Baua River Irrigation System (BRIS). Petitioner
vehemently denied any involvement in the incident, alleging that he was in Quezon
City at the time the crime was being committed. He contended that he was
following-up the funding for one of the projects of NIA in Gonzaga, Cagayan. He
insisted that he reported at the NIA Central Office on September 1, 1998 and
stayed in Manila until the afternoon of September 4, 1998. To buttress his
allegations, the petitioner presented a Certificate of Appearance8 issued by Engr.
Orlando C. Hondrade, then NIA Deputy Administrator, who testified thru a
deposition that he indeed signed the document. Engr. Hondrade testified that he
specifically remembered that petitioner personally appeared before him on the 1st
and 4th days of September for a duration of 10 to 15 minutes. Petitioner also
submitted his daily time record to prove that he was not at their office in Cagayan
from the afternoon of August 31, 1998, claiming that he traveled to Quezon City
pursuant to a travel authority issued by his superior. 9
On February 27, 2003, after presentation of the parties respective evidence, the
RTC rendered a Decision10finding petitioner guilty of the crime of attempted
murder. The decretal portion of the Decision reads:
WHEREFORE, the Court finds accused Engr. Carlito Pentecostes, Jr. guilty beyond
reasonable doubt as principal of the crime of Attempted Murder and sentences him
the penalty of four (4) years, two (2) months and one (1) day of prision
correccional, as minimum, to eight (8) years of prision mayor, as maximum.
Further, the accused is ordered to pay private complainant Rudy Baclig the amount
of Two Thousand Pesos (P2,000.00).
SO ORDERED.11
The RTC concluded that Rudy positively identified the petitioner as the one who
shot him there was sufficient lighting for Rudy to identify the perpetrator and he
knew petitioner ever since he attained the age of reason. As to petitioners defense
of alibi, the RTC ratiocinated that when petitioner personally appeared before
Engr. Hondrade on September 1, 1998, it would not be impossible for him to
immediately return to Gonzaga, Cagayan that afternoon and commit the crime in
the evening of September 2, 1998.12

Petitioner then sought recourse before the CA, arguing that the RTC committed
serious errors in finding that he was guilty of attempted murder and that the RTC
failed to consider the testimonies of his witnesses and the documentary evidence
presented in his favor.13
On February 18, 2005, the CA 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 dated 27 February 2003 is
AFFIRMED with MODIFICATION that accused-appellant Pentecostes is only
found GUILTY OF LESS SERIOUS PHYSICAL INJURIES and is hereby sentenced
to suffer imprisonment of six (6) months of arresto mayor, there being one
aggravating and no mitigating circumstance to offset it.
SO ORDERED.14
In convicting the petitioner to a lesser offence, the CA opined that it was not
established that petitioner intended to kill Rudy when he shot him. Petitioners act
of shooting Rudy once was not followed by any other assault or any act which
would ensure his death. Considering that petitioner was driving a car, he could
have chased Rudy if he really intended to kill the latter, or run him over since Rudy
went to the rear of the car. Petitioners desistance displayed his nonchalance to
cause the death of Rudy. Moreover, Rudy only sustained a gunshot wound on the
arm, which required only 10 days of medical attendance. 15
Not satisfied, petitioner filed a Motion for Reconsideration,16 but was denied in a
Resolution dated April 9, 2005.
Hence, this petition which raises the following issues:
The honorable Court of Appeals, with due respect, committed a grave abuse of
discretion when it gives credence to the statement of the private
complainant presuming that the petitioner-appellant is the assailant allegedly due
to his voice and his alleged ownership of the vehicle, and considering that the
private complainant was then intoxicated, and the crime was committed at
nighttime, such conclusion is entirely grounded on speculations, surmises and
conjectures.
The honorable fourteenth division committed grave abuse of discretion when it
failed to give weight, discuss and consider the arguments and defenses made the

petitioner-appellant in our brief, vis--vis the manifestation and motion of the

solicitor general.
The honorable fourteenth division committed an error when it relied heavily on an
unfounded, baseless and alleged motive of petitioner, being a crusader of illegal
drugs in their own town, to be the basis that he is the assailant.17
Petitioner questions the conclusion of the CA when it found him guilty of the crime
of less serious physical injuries. He argues that Rudy failed to positively identify
him as the assailant, since Rudy never admitted that he was able to identify the
petitioner through his physical appearance, but only through his voice, despite the
fact that it was the first time Rudy heard petitioners voice when he allegedly shot
him. Petitioner also insists that when the incident occurred, Rudys vision was
impaired as he just drank half a bottle of gin and the place was not properly lit.
Rudy also failed to identify the type of gun used during the shooting. Moreover, the
prosecution failed to establish that the car used by the perpetrator was owned by
the petitioner.
Further, petitioner maintains that it was impossible for him to have shot the victim
on the night of September 2, 1998, since he was not in the Province of Cagayan
Valley from September 1, 1998 to September 4, 1998.
The petition is bereft merit.
In sum, petitioner submits before this Court two issues for resolution. First,
whether or not the prosecution established beyond reasonable doubt that
petitioner was the one who shot the victim; Second, whether or not petitioners
defense of alibi would prosper.
As regards the first issue, this Court finds that the prosecution established beyond
reasonable doubt that petitioner was the one who shot Rudy that fateful night of
September 2, 1998. Both the RTC and the CA found that petitioner indeed shot
Rudy. In arriving at this conclusion, the RTC ratiocinated in this wise:
Private complainant Rudy Baclig averred that he personally knew the accused since
he was of the age of reason. Rudy knew accused Engr. Carlito Pentecostes Jr. to be
working with the NIA at Sta. Cruz, Gonzaga, Cagayan. Both private complainant
Rudy Baclig and accused Engr. Carlito Pentecostes Jr. were residents of Gonzaga,
Cagayan, although they reside in different barangays. Rudy was residing at Brgy.
Batangan, while the accused was living two-and-a-half kilometers away at Brgy.
Flourishing. Rudy Baclig categorically stated that when the car of the accused

passed by him, it slowly stopped then moved backward and when the car was at a
distance of about two arms length, which was about three (3) meters, the accused
called Rudys nickname Parrod. Hearing his nickname, Rudy went towards the car,
but he was only able to take one step, accused Engr. Carlito Pentecostes Jr. opened
the door of the car and shot Rudy once and afterwards the accused hurriedly sped
away. Asked how he was able to identify Engr. Carlito Pentecostes Jr. to be the
person who shot him when it was night time, Rudy said that he was able to identify
the accused through the lights of the car and on cross-examination he said that
aside from the lights of the car, there were also lights coming from a store nearby
the place of the incident. The Court believes that with these kinds of lights, Rudy
Baclig was able to identify the accused, considering the distance between the
assailant and the victim was only three (3) meters.
x x x x.
Rudy Baclig was not telling a lie when he declared that he was shot at about two
arms length only because the doctor who treated him, Dr. Mila M. Marantan,
declared that Rudy Baclig suffered a gunshot wound, the entry was with powder
burns which is an evidence that Rudy Baclig was shot at a close range.
The defense harped on the fact that the private complainant smelled liquor. The
complainant at first denied having taken liquor, but he admitted he took one-half
bottle of gin before he went to buy coffee and sugar. On cross-examination, the
complainant admitted also that every afternoon, he drank liquor. He admitted that
he could still walk naturally a distance of about one kilometer. He also said that his
vision might be affected. This testimony of Rudy Baclig cannot be considered as
evidence that he was not able to identify the accused. He was categorical in stating
that he was able to identify the accused. The doctor who treated Rudy of his injury
declared the patient smelled liquor, but she could not tell how much liquor the
patient took, however, the patient could answer all her questions.
x x x x.
There are other evidences that tend to show that Rudy Baclig was able to identify
the assailant. Immediately after he was shot, Rudy told a police investigator, a
certain Torres and Dr. Mila Marantan that it was Engr. Carlito Pentecostes, Jr. who
shot him.18
This conclusion was concurred into by the CA, which categorically stated in its
decision that "[t]he prosecution was able to present a witness, in the person of
Baclig, who categorically identified petitioner as his assailant and whose testimony

was characterized by frankness."19 Contrary to petitioners contention, Rudy saw

him and positively identified him as his shooter, viz:
Q: When you heard the driver of the car calling you by your nickname
Parrod, what was your reaction?
A: I went near because I thought he was telling me something.
Q: And what made you decide to go near the driver of the vehicle?
A: Because he called me by my name, Sir.
Q: When the driver of the car called you by your [nickname], were you able
to recognize the driver of the car who called you?
A: Yes, Sir.
Q: And who was that person who called you by your name Parrod?
A: It was Engr. Pentecostes, Sir.
Q: The same person you identified a while ago?
A: Yes, Sir.20
Corollarilly, petitioner already raised these arguments in his motion for
reconsideration of the decision of the court a quo, which the CA addressed point by
point in the assailed resolution denying the motion. We quote with approval the
following discussion of the CA:
On the first allegation, accused-appellant wrongly read the decision. The Court
upheld the trial courts finding that it was indeed accused-appellant who attacked
the private complainant, not because the latter heard accused-appellants voice but
that he was able to see him through the lights of the car when he opened the
window and the door. x x x
xxxx
Clearly, it was not merely hearing the assailants voice, but that he was able to see
him, that private-complainant was able to identify the accused-appellant. It was

admittedly a fact that private complainant had a drink but it does not mean that he
was intoxicated, especially since he admitted that he drinks everyday. Thus, his
bodys tolerance to alcohol is probably heightened. There was also no proof that his
vision had been affected by the alcohol intake, and that he would have mistaken
someone else for the accused.
Again, positive declaration is given more weight than the denial of the accusedappellant. In addition, the same findings were previously reached by the trial court
which had the opportunity to observe first-hand the demeanor of the witnesses,
and assess their credibility.
Regarding the Solicitor Generals recommendation, the Court is not bound to
follow it although in some cases, we are persuaded by the same. However, in this
case, it was not able to persuade Us as it only adopted the same arguments
advanced by accused- appellants counsel.
Some of these arguments include the failure to present any document or evidence
showing that the car used was owned by the accused-appellant. The ownership of
the car, however, is immaterial in the light of the positive identification of the
accused. In addition, the statement of the prosecutions witnesses that the car was
often used by accused-appellants father does not remove the possibility that he
may also use it.
On the third allegation of error, again, accused-appellant has misread the decision
and exaggerated by accusing us of relying heavily on the existence of a probable
motive on the part of accused-appellant to commit the act complained of. This is
clear in the decision that the same was meant to assess whether there was a
probable motive for the private complainant to lie.21
It is clear that the arguments advanced by the petitioner in the case at bar,
questioning the conclusion of the RTC and the CA that petitioner shot the victim,
are trivial. The fact remains that Rudy has been shot with a gun and he positively
identified his shooter as the petitioner. Petitioner faulted the RTC and the CA for
giving credence to the testimony of Rudy. However, it is to be noted that even the
lone declaration of a sole eyewitness is sufficient to convict if that testimony is
found to be credible. Credibility of witnesses is to be weighed and should not be
based on numbers. The matter of assigning values to declaration on the witness
stand is best and most competently performed by the trial judge who had the
unmatched opportunity to observe the witnesses and to assess their credibility by
various indicia available but not reflected on the record.22

This Court has meticulously scrutinized the transcripts of stenographic notes of

this case and finds that the RTC, as well as the CA, committed no error in giving
credence to the evidence of the prosecution. The Court has long adhered to the rule
that findings of the trial court on the credibility of witnesses and their testimonies
are accorded great respect unless it overlooked substantial facts and
circumstances, which if considered, would materially affect the result of the case.
This deference to the trial courts appreciation of the facts and of the credibility of
witnesses is consistent with the principle that when the testimony of a witness
meets the test of credibility, that alone is sufficient to convict the accused. 23 This is
especially true when the factual findings of the trial court are affirmed by the
appellate court.24
As regards petitioners defense of alibi, well settled is the rule that alibi is an
inherently weak defense which cannot prevail over the positive identification of the
accused by the victim.25 Moreover, in order for the defense of alibi to prosper, it is
not enough to prove that the petitioner was somewhere else when the offense was
committed, but it must likewise be demonstrated that he was so far away that it
was not possible for him to have been physically present at the place of the crime
or its immediate vicinity at the time of its commission.26 In the case at bar, it was
established that petitioner personally appeared before Engr. Hondrade only on
September 1 and 4, 1998. His whereabouts for the two days in between the said
dates are unaccounted for. There was no showing that he could not have gone back
to Cagayan, committed the crime, and went back to Quezon City during those two
days. Petitioners defense of denial and alibi cannot prevail as against the positive,
straightforward and consistent testimony of Rudy that it was petitioner who shot
him on the night of September 2, 1998.
As to the crime committed by petitioner, this Court also concurs with the
conclusion of the CA that petitioner is guilty of the crime of less serious physical
injuries, not attempted murder.
The principal and essential element of attempted or frustrated murder is the intent
on the part of the assailant to take the life of the person attacked. Such intent must
be proved in a clear and evident manner to exclude every possible doubt as to the
homicidal intent of the aggressor.27 In the present case, intent to kill the victim
could not be inferred from the surrounding circumstances. Petitioner only shot the
victim once and did not hit any vital part of the latters body. If he intended to kill
him, petitioner could have shot the victim multiple times or even ran him over with
the car. Favorably to petitioner, the inference that intent to kill existed should not
be drawn in the absence of circumstances sufficient to prove this fact beyond
reasonable doubt.28 When such intent is lacking but wounds are inflicted upon the
victim, the crime is not attempted murder but physical injuries only. Since the

Medico-Legal Certificate29 issued by the doctor who attended Rudy stated that the
wound would only require ten (10) days of medical attendance, and he was, in fact,
discharged the following day, the crime committed is less serious physical injuries
only. The less serious physical injury suffered by Rudy is defined under Article 265
of the Revised Penal Code, which provides that "(A)ny person who inflicts upon
another physical injuries not described as serious physical injuries but which shall
incapacitate the offended party for labor for ten (10) days or more, or shall require
medical attendance for the same period, shall be guilty of less serious physical
injuries and shall suffer the penalty of arresto mayor."1avvphi1
As to the aggravating circumstance of treachery, this Court finds that the CA
erroneously concluded that treachery attended the commission of the crime. To
establish treachery, the following must be proven: (1) the employment of such
means of execution as would give the person attacked no opportunity for selfdefense or retaliation; and (2) the deliberate and conscious adoption of the means
of execution.30 The circumstances attending the commission of the crime negate
the existence of treachery in its execution. Although petitioner deliberately
assaulted Rudy and there was suddenness in his attack, he did not logically plan to
assault the latter when he chanced upon him while he was driving. In treachery,
the perpetrator intentionally and purposely employs ways and means to commit
the crime. There was no evidence, however, to show that petitioner employed such
means of execution that would ensure the commission of the crime without harm
to his person. Thus, treachery did not attend the commission of the crime.
There being no aggravating and no mitigating circumstance, the penalty for the
crime of less serious physical injuries should be taken from the medium period of
arresto mayor, which is from two (2) months and one (1) day to four (4) months.
The Indeterminate Sentence Law finds no application in the case at bar, since it
does not apply to those whose maximum term of imprisonment is less than one
year.31
As regards the awards for damages, moral damages may be recovered in criminal
offenses resulting in physical injuries, but there must be a factual basis for the
award.32 We have studied the records and find no factual basis for the award of
moral damages.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals,
dated February 18, 2005, and the Resolution dated April 19, 2005 in CA-G.R. CR
No. 27458, are AFFIRMED with MODIFICATION. Petitioner Engr. Carlito
Pentecostes, Jr. is sentenced to suffer the straight penalty of three (3) months of
arresto mayor.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
SPECIAL SECOND DIVISION
G.R. No. 151258

December 1, 2014

ARTEMIO VILLAREAL, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x-----------------------x
G.R. No. 154954
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
THE HONORABLE COURT OF APPEALS, ANTONIO MARIANO
ALMEDA, DALMACIO LIM, JR., JUNEL ANTHONY AMA, ERNESTO
JOSE MONTECILLO, VINCENT TECSON, ANTONIO GENERAL,
SANTIAGO RANADA III, NELSON VICTORINO, JAIME MARIA
FLORES II, ZOSIMO MENDOZA, MICHAEL MUSNGI, VICENTE
VERDADERO, ETIENNE GUERRERO, JUDE FERNANDEZ, AMANTE
PURISIMA II, EULOGIO SABBAN, PERCIVAL D. BRIGOLA, PAUL
ANGELO SANTOS, JONAS KARL B. PEREZ, RENATO BANTUG, JR.,
ADEL ABAS, JOSEPH LLEDO, and RONAN DE GUZMAN, Respondents.
x-----------------------x
G.R. No. 155101

FIDELITO DIZON, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x-----------------------x
G.R. Nos. 178057 & 178080
GERARDA H. VILLA, Petitioner,
vs.
MANUEL LORENZO ESCALONA II, MARCUS JOEL CAPELLAN
RAMOS, CRISANTO CRUZ SARUCA, JR., and ANSELMO
ADRIANO, Respondents.
RESOLUTION
SERENO, CJ:
We are asked to revisit our Decision in the case involving the death of Leonardo
"Lenny" Villa due to fraternity hazing. While there is nothing new in the arguments
raised by the parties in their respective Motions for Clarification or
Reconsideration, we find a few remaining matters needing to be clarified and
resobed. Sorne oJ' these matters include the effect of our Decision on the finality of
the Court of Appeals judgments insofar as respondents Antonio Mariano A!meda
(Almeda), June] Anthony D. Arna (Arna), Renato Bantug, Jr. (Bantug), and
Vincent Tecson (Tecson) are concerned; the question of who are eligible to seek
probation; and the issue of the validity of the probation proceedings and the
concomitant orders of a court that allegedly had no jurisdiction over the case.
Before the Court are the respective Motions for Reconsideration or Clarification
filed by petitioners People of the Philippines, through the Office of the Solicitor
General (OSG), and Gerarda H. Villa (Villa); and by respondents Almeda, Ama,
Bantug, and Tecson (collectively, Tecson et al.) concerning the Decision of this
Court dated 1 February 2012.1 The Court modified the assailed judgments2 of the
Court of Appeals (CA) in CA-G.R. CR No. 15520 and found respondents Fidelito
Dizon (Dizon), Almeda, Ama, Bantug, and Tecson guilty beyond reasonable doubt
of the crime of reckless imprudence resulting in homicide. The modification had
the effect of lowering the criminal liability of Dizon from the crime of homicide,
while aggravating the verdict against Tecson et al. from slight physical injuries. The
CA Decision itself had modified the Decision of the Caloocan City Regional Trial

Court (RTC) Branch 121 finding all of the accused therein guilty of the crime of
homicide.3
Also, we upheld another CA Decision4 in a separate but related case docketed as
CA-G.R. S.P. Nos. 89060 & 90153 and ruled that the CA did not commit grave
abuse of discretion when it dismissed the criminal case against Manuel Escalona II
(Escalona), Marcus Joel Ramos (Ramos), Crisanto Saruca, Jr. (Saruca), and
Anselmo Adriano (Adriano) on the ground that their right to speedy trial was
violated. Reproduced below is the dispositive portion of our Decision: 5
WHEREFORE, the appealed Judgmentin G.R. No. 155101 finding petitioner
Fidelito Dizon guilty of homicide is hereby MODIFIED and SET ASIDE IN PART.
The appealed Judgment in G.R. No. 154954 finding Antonio Mariano Almeda,
Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson guilty of the crime of
slight physical injuries is also MODIFIED and SET ASIDE IN PART. Instead,
Fidelito Dizon, Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr.,
and Vincent Tecson are found GUILTY beyond reasonable doubt of reckless
imprudence resulting in homicide defined and penalized under Article 365 in
relation to Article 249 of the Revised Penal Code. They are hereby sentenced to
suffer an indeterminate prison term of four (4) months and one (1) day of arresto
mayor, as minimum, to four (4) years and two (2) months of prision correccional,
as maximum. In addition, accused are ORDERED jointly and severally to pay the
heirs of Lenny Villa civil indemnity ex delicto in the amount of 50,000, and moral
damages in the amount of 1,000,000, plus legal interest on all damages awarded at
the rate of 12% from the date of the finality of this Decision until satisfaction. Costs
de oficio.
The appealed Judgment in G.R. No. 154954, acquitting Victorino et al., is hereby
AFFIRMED. The appealed Judgments in G.R. Nos. 178057 & 178080, dismissing
the criminal case filed against Escalona, Ramos, Saruca, and Adriano, are likewise
AFFIRMED. Finally, pursuant to Article 89(1) of the Revised Penal Code, the
Petition in G.R. No. 151258 is hereby dismissed, and the criminal case against
Artemio Villareal deemed CLOSED and TERMINATED.
Let copies of this Decision be furnished to the Senate President and the Speaker of
the House of Representatives for possible consideration of the amendment of the
Anti-Hazing Law to include the fact of intoxication and the presence of nonresident or alumni fraternity members during hazing as aggravating circumstances
that would increase the applicable penalties.
SO ORDERED.

To refresh our memories, we quote the factual antecedents surrounding the

present case:6

of hazing that they endured on the first day of initiation. After a few hours, the
initiation for the day officially ended.

In February 1991, seven freshmen law students of the Ateneo de Manila University
School of Law signified their intention to join the Aquila Legis Juris Fraternity
(Aquila Fraternity). They were Caesar "Bogs" Asuncion, Samuel "Sam" Belleza,
Bienvenido "Bien" Marquez III, Roberto Francis "Bert" Navera, Geronimo "Randy"
Recinto, Felix Sy, Jr., and Leonardo "Lenny" Villa (neophytes).

After a while, accused non-resident or alumni fraternity members Fidelito Dizon

(Dizon) and Artemio Villareal (Villareal) demanded that the rites be reopened. The
head of initiation rites, Nelson Victorino (Victorino), initially refused. Upon the
insistence of Dizon and Villareal, however, he reopened the initiation rites. The
fraternity members, including Dizon and Villareal, then subjected the neophytes to
"paddling" and to additional rounds of physical pain. Lenny received several
paddle blows, one of which was so strong it sent him sprawling to the ground. The
neophytes heard him complaining of intense pain and difficulty in breathing. After
their last session of physical beatings, Lenny could no longer walk. He had to be
carried by the auxiliaries to the carport. Again, the initiation for the day was
officially ended, and the neophytes started eating dinner. They then slept at the
carport.

On the night of 8 February 1991, the neophytes were met by some members of the
Aquila Fraternity (Aquilans) at the lobby of the Ateneo Law School. They all
proceeded to Rufos Restaurant to have dinner. Afterwards, they went to the house
of Michael Musngi, also an Aquilan, who briefed the neophytes on what to expect
during the initiation rites. The latter were informed that there would be physical
beatings, and that they could quit at any time. Their initiation rites were scheduled
to last for three days. After their "briefing," they were brought to the Almeda
Compound in Caloocan City for the commencement of their initiation.
Even before the neophytes got off the van, they had already received threats and
insults from the Aquilans. As soon as the neophytes alighted from the van and
walked towards the pelota court of the Almeda compound, some of the Aquilans
delivered physical blows to them. The neophytes were then subjected to traditional
forms of Aquilan "initiation rites." These rites included the "Indian Run," which
required the neophytes to run a gauntlet of two parallel rows of Aquilans, each row
delivering blows to the neophytes; the "Bicol Express," which obliged the
neophytes to sit on the floor with their backs against the wall and their legs
outstretched while the Aquilans walked, jumped, or ran over their legs; the
"Rounds," in which the neophytes were held at the back of their pants by the
"auxiliaries" (the Aquilans charged with the duty of lending assistance to neophytes
during initiation rites), while the latter were being hit with fist blows on their arms
or withknee blows on their thighs by two Aquilans; and the "Auxies Privilege
Round," in which the auxiliaries were given the opportunity to inflict physical pain
on the neophytes. During this time, the neophytes were also indoctrinated with the
fraternity principles. They survived their first day of initiation.
On the morning of their second day 9 February 1991 the neophytes were made
to present comic plays and to play rough basketball. They were also required to
memorize and recite the Aquila Fraternitys principles. Whenever they would give a
wrong answer, they would be hit on their arms or legs. Late in the afternoon, the
Aquilans revived the initiation rites proper and proceeded to torment them
physically and psychologically. The neophytes were subjected to the same manner

After an hour of sleep, the neophytes were suddenly roused by Lennys shivering
and incoherent mumblings.1avvphi1Initially, Villareal and Dizon dismissed these
rumblings, as they thought he was just overacting. When they realized, though,
that Lenny was really feeling cold, some of the Aquilans started helping him. They
removed his clothes and helped him through a sleeping bag to keep him warm.
When his condition worsened, the Aquilans rushed him to the hospital. Lenny was
pronounced dead on arrival.
Consequently, a criminal case for homicide was filed against the following 35
Aquilans:
In Criminal Case No. C-38340(91)
1. Fidelito Dizon (Dizon)
2. Artemio Villareal (Villareal)
3. Efren de Leon (De Leon)
4. Vincent Tecson (Tecson)
5. Junel Anthony Ama (Ama)
6. Antonio Mariano Almeda (Almeda)

7. Renato Bantug, Jr. (Bantug)

In Criminal Case No. C-38340

8. Nelson Victorino (Victorino)

1. Manuel Escalona II (Escalona)

9. Eulogio Sabban (Sabban)

2. Crisanto Saruca, Jr. (Saruca)

10. Joseph Lledo (Lledo)

3. Anselmo Adriano (Adriano)

11. Etienne Guerrero (Guerrero)

4. Marcus Joel Ramos (Ramos)

12. Michael Musngi (Musngi)

5. Reynaldo Concepcion (Concepcion)

13. Jonas Karl Perez (Perez)

6. Florentino Ampil (Ampil)

14. Paul Angelo Santos (Santos)

7. Enrico de Vera III (De Vera)

15. Ronan de Guzman (De Guzman)

8. Stanley Fernandez (S. Fernandez)

16. Antonio General (General)

9. Noel Cabangon (Cabangon)

17. Jaime Maria Flores II (Flores)

18. Dalmacio Lim, Jr. (Lim)
19. Ernesto Jose Montecillo (Montecillo)
20. Santiago Ranada III (Ranada)
21. Zosimo Mendoza (Mendoza)
22. Vicente Verdadero (Verdadero)
23. Amante Purisima II (Purisima)
24. Jude Fernandez (J. Fernandez)
25. Adel Abas (Abas)
26. Percival Brigola (Brigola)

Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91) were jointly
tried. On the other hand, the trial against the remaining nine accused in Criminal
Case No. C-38340 was held in abeyance due to certain matters that had to be
resolved first.
On 8 November 1993, the trial court rendered judgment in Criminal Case No. C38340(91), holding the 26 accused guilty beyond reasonable doubt of the crime of
homicide, penalized with reclusion temporal under Article 249 of the Revised
Penal Code. A few weeks after the trial court rendered its judgment, or on 29
November 1993, Criminal Case No. C-38340 against the remaining nine accused
commenced anew.
On 10 January 2002, the CAin (CA-G.R. No. 15520) set aside the finding of
conspiracy by the trial court in Criminal Case No. C-38340(91) and modified the
criminal liability of each of the accused according to individual participation.
Accused De Leon had by then passed away, so the following Decision applied only
to the remaining 25 accused, viz:
1. Nineteen of the accused-appellants Victorino, Sabban, Lledo, Guerrero,
Musngi, Perez, De Guzman, Santos, General, Flores, Lim, Montecillo,

Ranada, Mendoza, Verdadero, Purisima, Fernandez, Abas, and Brigola

(Victorino et al.) were acquitted,as their individual guilt was not
established by proof beyond reasonable doubt.
2. Four of the accused-appellants Vincent Tecson, Junel Anthony Ama,
Antonio Mariano Almeda, and Renato Bantug, Jr. (Tecson et al.) were
found guilty of the crime of slight physical injuriesand sentenced to 20
days of arresto menor. They were also ordered to jointly pay the heirs of
the victim the sum ofP30,000 as indemnity.
3. Two of the accused-appellants Fidelito Dizonand Artemio Villareal
were found guilty beyond reasonable doubt of the crime of homicide under
Article 249 of the Revised Penal Code. Having found no mitigating or
aggravating circumstance, the CA sentenced them to an indeterminate
sentence of 10 years of prision mayor to 17 years of reclusion temporal.
They were also ordered to indemnify, jointly and severally, the heirs of
Lenny Villa in the sum of P50,000 and to pay the additional amount
of P1,000,000 by way of moral damages.
On 5 August 2002, the trial court in Criminal Case No. 38340 dismissed the charge
against accused Concepcion on the ground of violation of his right to speedy trial.
Meanwhile, on different dates between the years 2003 and 2005, the trial court
denied the respective Motions to Dismiss of accused Escalona, Ramos, Saruca, and
Adriano. On 25 October 2006, the CA in CA-G.R. SP Nos. 89060 & 90153 reversed
the trial courts Orders and dismissed the criminal case against Escalona, Ramos,
Saruca, and Adriano on the basis of violation of their right to speedy trial.
From the aforementioned Decisions, the five (5) consolidated Petitions were
individually brought before this Court. (Citations omitted)

to speedy trial during the time that the original records and pieces of evidence were
unavailable. She again emphasizes that the prosecution cannot be faulted entirely
for the lapse of 12 years from the arraignment until the initial trial, as there were a
number of incidents attributable to the accused themselves that caused the delay of
the proceedings. She then insists that we apply the balancing test in determining
whether the right to speedy trial of the accused was violated.
Motion for Reconsideration filed by the OSG
The OSG, in its Motion for Reconsideration9 of G.R. Nos. 155101 (Dizon v. People)
and 154954 (People v. Court of Appeals), agrees with the findings of this Court that
accused Dizon and Tecson et al. had neither the felonious intent to kill (animus
interficendi) nor the felonious intent to injure (animus iniuriandi) Lenny Villa. In
fact, it concedes that the mode in which the accused committed the crime was
through fault (culpa). However, it contends that the penalty imposed should have
been equivalent to that for deceit (dolo) pursuant to Article 249 (Homicide) of the
Revised Penal Code. It argues that the nature and gravity of the imprudence or
negligence attributable to the accused was so gross that it shattered the fine
distinction between dolo and culpaby considering the act as one committed with
malicious intent. It maintains that the accused conducted the initiation rites in
such a malevolent and merciless manner that it clearly endangered the lives of the
initiates and was thus equivalent to malice aforethought.
With respect to the 19 other accused, or Victorino et al., the OSG asserts that their
acquittal may also be reversed despite the rule on double jeopardy, as the CA also
committed grave abuse of discretion in issuing its assailed Decision (CA-G.R. No.
15520). The OSG insists that Victorino et al. should have been similarly convicted
like their other co-accused Dizon, Almeda, Ama, Bantug, and Tecson, since the
former also participated in the hazing of Lenny Villa, and their actions contributed
to his death.

Motion for Partial Reconsideration

filed by Petitioner Gerarda H. Villa

Motions for Clarification or Reconsideration of Tecson et al.

Petitioner Villa filed the present Motion for Partial Reconsideration 7 in connection
with G.R. Nos. 178057 & 178080 (Villa v. Escalona) asserting that the CA
committed grave abuse of discretion when it dismissed the criminal case against
Escalona, Ramos,Saruca, and Adriano (collectively, Escalona et al.) in its assailed
Decision and Resolution.8 Villa reiterates her previous arguments that the right to
speedy trial of the accused was not violated, since they had failed to assert that
right within a reasonable period of time. She stresses that, unlike their co-accused
Reynaldo Concepcion, respondents Escalona et al.did not timely invoke their right

Respondents Tecson et al.,10 filed their respective motions pertaining to G.R. No.
154954 (People v. Court of Appeals). They essentially seek a clarification as to the
effect of our Decision insofar as their criminal liability and service of sentence are
concerned. According to respondents, they immediately applied for probation after
the CA rendered its Decision (CAG.R. No. 15520) lowering their criminal liability
from the crime of homicide, which carries a non-probationable sentence, to slight
physical injuries, which carries a probationable sentence. Tecson et al.contend
that, as a result, they have already been discharged from their criminal liability and

the cases against them closed and terminated. This outcome was supposedly by
virtue of their Applications for Probation on various dates in January
200211 pursuant to Presidential Decree No. 968, as amended, otherwise known as
the Probation Law. They argue that Branch 130 of Caloocan City Regional Trial
Court (RTC) had already granted their respective Applications for Probation on 11
October 200212 and, upon their completion of the terms and conditions thereof,
discharged them from probation and declared the criminal case against them
terminated on various dates in April 2003.13
To support their claims, respondents attached14 certified true copies of their
respective Applications for Probation and the RTC Orders granting these
applications, discharging them from probation, and declaring the criminal case
against them terminated. Thus, they maintain that the Decision in CA-G.R. No.
15520 had already lapsed into finality, insofar as they were concerned, whenthey
waived their right to appeal and applied for probation.

of discretion,17 certiorari would lie if it is convincingly established that the CAs

Decision dismissing the case was attended by a whimsical or capricious exercise of
judgment equivalent to lack of jurisdiction. It must be shown that the assailed
judgment constitutes "a patent and gross abuse of discretion amounting to an
evasion of a positive duty or to a virtual refusal to perform a duty imposed by law
or toact in contemplation of law; an exercise of power in an arbitrary and despotic
manner by reason of passion and hostility; or a blatant abuse of authority to a
point so grave and so severe as to deprive the court of its very power to dispense
justice."18 Thus, grave abuse of discretion cannot be attributed to a court simply
because it allegedly misappreciated the facts and the evidence.19
We have taken a second look at the court records, the CA Decision, and petitioners
arguments and found no basis to rule that the CA gravely abused its discretion in
concluding that the right to speedy trial of the accused was violated. Its findings
were sufficiently supported by the records of the case and grounded in law. Thus,
we deny the motion of petitioner Villa with finality.

ISSUES
Ruling on the Motion for Reconsideration filed by the OSG
I. Whether the CA committed grave abuse of discretion amounting to lack
or excess of jurisdiction when it dismissed the case against Escalona,
Ramos, Saruca, and Adriano for violation of their right to speedy trial
II. Whether the penalty imposed on Tecson et al. should have
corresponded to that for intentional felonies
III. Whether the completion by Tecson et al. of the terms and conditions of
their probation discharged them from their criminal liability, and closed
and terminated the cases against them DISCUSSION
Findings on the Motion for Partial Reconsideration of
Petitioner Gerarda H. Villa
As regards the first issue, we take note that the factual circumstances and legal
assertions raised by petitioner Villa in her Motion for Partial Reconsideration
concerning G.R. Nos. 178057 & 178080 have already been thoroughly considered
and passed uponin our deliberations, which led to our Decision dated 1 February
2012. We emphasize that in light of the finding of violation of the right of Escalona
et al. to speedy trial, the CAs dismissal of the criminal case against them amounted
to an acquittal,15 and that any appeal or reconsideration thereof would result in a
violation of their right against double jeopardy.16 Though we have recognized that
the acquittal of the accused may be challenged where there has been a grave abuse

We likewise deny with finality the Motion for Reconsideration filed by the OSG
with respect to G.R. Nos. 155101 (Dizon v. People) and 154954 (People v. Court of
Appeals). Many of the arguments raised therein are essentially a mere rehash of
the earlier grounds alleged in its original Petition for Certiorari.
Furthermore, we cannot subscribe to the OSGs theory that even if the act
complained of was born of imprudence or negligence, malicious intent can still be
appreciated on account of the gravity of the actions of the accused. We emphasize
that the finding of a felony committed by means of culpa is legally inconsistent
with that committed by means of dolo. Culpable felonies involve those wrongs
done as a result of an act performed without malice or criminal design. The
Revised Penal Code expresses thusly:
ARTICLE 365. Imprudence and Negligence. Any person who, by reckless
imprudence, shall commit any act which, had it been intentional, would constitute
a grave felony, shall suffer the penalty of arresto mayorin its maximum period
toprisin correccional in its medium period; if it would have constituted a less
grave felony, the penalty of arresto mayor in its minimum and medium periods
shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act which
would otherwise constitute a grave felony, shall suffer the penalty of arresto

mayorin its medium and maximum periods; if it would have constituted a less
serious felony, the penalty of arresto mayor in its minimum period shall be
imposed.
xxxx
Reckless imprudence consists in voluntary, but without malice, doing or falling to
do an act from which material damage results by reason of inexcusable lack of
precaution on the part of the person performing or failing to perform suchact,
taking into consideration his employment or occupation, degree of intelligence,
physical condition and other circumstances regarding persons, time and place.
Simple imprudence consists in the lack of precaution displayed in those cases in
which the damage impending to be caused is not immediate nor the danger clearly
manifest. (Emphases supplied)
On the other hand, intentional felonies concern those wrongs in which a deliberate
malicious intent to do an unlawful act is present. Below is our exhaustive
discussion on the matter:20 Our Revised Penal Code belongs tothe classical school
of thought. x x x The identity of mens rea defined as a guilty mind, a guilty or
wrongful purpose or criminal intent is the predominant consideration. Thus, it is
not enough to do what the law prohibits. In order for an intentional felony to exist,
it is necessary that the act be committed by means of doloor "malice."

The term "dolo" or "malice" is a complex idea involving the elements of freedom,
intelligence, and intent. x x x x The element of intent on which this Court shall
focus is described as the state of mind accompanying an act, especially a
forbidden act. It refers to the purpose of the mind and the resolve with which a
person proceeds.It does not refer to mere will, for the latter pertains to the act,
while intentconcerns the result of the act. While motive is the "moving power" that
impels one to action for a definite result, intent is the "purpose" of using a
particular means to produce the result. On the other hand, the term
"felonious"means, inter alia, malicious, villainous, and/or proceeding from an evil
heart or purpose.With these elements taken together, the requirement of intent in
intentional felony must refer to malicious intent, which is a vicious and malevolent
state of mind accompanying a forbidden act. Stated otherwise, intentional felony
requires the existence of dolus malus that the act or omission be done "willfully,"
"maliciously," "with deliberate evil intent," and "with malice aforethought." The
maxim is actus non facit reum, nisi mens sit rea a crime is not committed if the
mind of the person performing the act complained of is innocent. As is required of
the other elements of a felony, the existence of malicious intent must be proven
beyond reasonable doubt.
xxxx
The presence of an initial malicious intent to commit a felony is thus a vital
ingredient in establishing the commission of the intentional felony of homicide.
Being mala in se, the felony of homicide requires the existence of malice or dolo
immediately before or simultaneously with the infliction of injuries. Intent to kill
or animus interficendi cannot and should not be inferred, unless there is proof
beyond reasonable doubt of such intent. Furthermore, the victims death must not
have been the product of accident, natural cause, or suicide. If death resulted from
an act executed without malice or criminal intent but with lack of foresight,
carelessness, or negligence the act must be qualified as reckless or simple
negligence or imprudence resulting in homicide.
xxxx
In order to be found guilty ofany of the felonious acts under Articles 262 to 266 of
the Revised Penal Code, the employment of physical injuries must be coupled with
dolus malus. As an act that is mala in se, the existence of malicious intent is
fundamental, since injury arises from the mental state of the wrongdoer iniuria
ex affectu facientis consistat. If there is no criminal intent, the accused cannot be
found guilty of an intentional felony. Thus, incase of physical injuries under the
Revised Penal Code, there must be a specific animus iniuriandi or malicious
intention to do wrong against the physical integrity or wellbeing of a person, so as

to incapacitate and deprive the victim of certain bodily functions. Without proof
beyond reasonable doubt of the required animus iniuriandi, the overt act of
inflicting physical injuries per semerely satisfies the elements of freedom and
intelligence in an intentional felony. The commission of the act does not, in itself,
make a man guilty unless his intentions are.
Thus, we have ruled in a number of instances that the mere infliction of physical
injuries, absentmalicious intent, does not make a person automatically liable for an
intentional felony.x x x.
xxxx
The absence of malicious intent does not automatically mean, however, that the
accused fraternity members are ultimately devoid of criminal liability. The Revised
Penal Code also punishes felonies that are committed by means of fault (culpa).
According to Article 3 thereof, there is fault when the wrongful act results from
imprudence, negligence, lack of foresight, or lack of skill.
Reckless imprudence or negligence consists of a voluntary act done without malice,
from which an immediate personal harm, injury or material damage results by
reason of an inexcusable lack of precaution or advertence on the part of the person
committing it. In this case, the danger is visible and consciously appreciated by the
actor. In contrast, simple imprudence or negligence comprises an act done without
grave fault, from which an injury or material damage ensues by reason of a mere
lack of foresight or skill. Here, the threatened harm is not immediate, and the
danger is not openly visible.
The test for determining whether or not a person is negligent in doing an act is as
follows: Would a prudent man in the position of the person to whom negligence is
attributed foresee harm to the person injured as a reasonable consequence of the
course about to be pursued? If so, the law imposes on the doer the duty to take
precaution against the mischievous resultsof the act. Failure to do so constitutes
negligence.
As we held in Gaid v. People, for a person to avoid being charged with recklessness,
the degree of precaution and diligence required varies with the degree of the
danger involved. If, on account of a certain line of conduct, the danger of causing
harm to another person is great, the individual who chooses to follow that
particular course of conduct is bound to be very careful, inorder to prevent or avoid
damage or injury. In contrast, if the danger is minor, not much care is required. It
is thus possible that there are countless degrees of precaution or diligence that may

be required of an individual, "from a transitory glance of care to the most vigilant

effort." The duty of the person to employ more or less degree of care will depend
upon the circumstances of each particular case. (Emphases supplied, citations
omitted)
We thus reiterate that the law requires proof beyond reasonable doubt of the
existence of malicious intent or dolus malus before an accused can be adjudged
liable for committing an intentional felony.
Since the accused were found to have committed a felony by means of culpa, we
cannot agree with the argument of the OSG. It contends that the imposable penalty
for intentional felony can also be applied to the present case on the ground that the
nature of the imprudence or negligence of the accused was so gross that the felony
already amounted to malice. The Revised Penal Code has carefully delineated the
imposable penalties as regards felonies committed by means of culpaon the one
hand and felonies committed by means of doloon the other in the context of the
distinctions it has drawn between them. The penalties provided in Article 365
(Imprudence and Negligence) are mandatorily applied if the death of a person
occurs as a result of the imprudence or negligence of another. Alternatively, the
penalties outlined in Articles 246 to 261 (Destruction of Life) are automatically
invoked if the death was a result of the commission of a forbidden act accompanied
by a malicious intent. These imposable penalties are statutory, mandatory, and not
subjectto the discretion of the court. We have already resolved and the OSG
agrees that the accused Dizon and Tecson et al. had neither animus interficendi
nor animus iniuriandi in inflicting physical pain on Lenny Villa. Hence, we rule
that the imposable penalty is what is applicable to the crime of reckless
imprudence resulting in homicide as defined and penalized under Article 365 of
the Revised Penal Code.
Ruling on the Motions for Clarification or Reconsideration
filed by Tecson et al.
We clarify, however, the effect of our Decision in light of the motions of
respondents Tecson et al. vis--vis G.R. No. 154954 (People v. Court of Appeals).
The finality of a CA decision will not
bar the state from seeking the
annulment of the judgment via a
Rule 65 petition.

In their separate motions,21 respondents insist that the previous verdict of the CA
finding them guilty of slight physical injuries has already lapsed into finality as a
result of their respective availments of the probation program and their ultimate
discharge therefrom. Hence, they argue that they can no longer be convicted of the
heavier offense of reckless imprudence resulting in homicide. 22 Respondents allude
to our Decision in Tan v. People23 to support their contention that the CA judgment
can no longer be reversed or annulled even by this Court.
The OSG counters24 that the CA judgment could not have attained finality, as the
former had timely filed with this Court a petition for certiorari. It argues that a
Rule 65 petition is analogous to an appeal, or a motion for new trial or
reconsideration, in that a petition for certiorarialso prevents the case from
becoming final and executory until after the matter is ultimately resolved.
Indeed, Rule 120 of the Rules of Court speaks of the finality of a criminal judgment
once the accused applies for probation, viz:
SECTION 7. Modification of judgment. A judgment of convictionmay, 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 finalafter the lapse of the period for perfecting an appeal, or whenthe
sentence has been partially or totally satisfied or served, or when the accusedhas
waived in writing his right to appeal, or has applied for probation. (7a) (Emphases
supplied)
Coupled with Section 7 of Rule 11725 and Section 1 of Rule 122,26 it can be culled
from the foregoing provisions that only the accused may appeal the criminal aspect
of a criminal case, especially if the relief being sought is the correction or review of
the judgment therein. This rule was instituted in order to give life to the
constitutional edict27 against putting a person twice in jeopardy of punishment for
the same offense. It is beyond contention that the accused would be exposed to
double jeopardy if the state appeals the criminal judgment in order to reverse an
acquittal or even to increase criminal liability. Thus, the accuseds waiver of the
right to appeal as when applying for probation makes the criminal judgment
immediately final and executory. Our explanation in People v. Nazareno is worth
reiterating:28
Further prosecution via an appeal from a judgment of acquittal is likewise barred
because the government has already been afforded a complete opportunity to
prove the criminal defendants culpability; after failing to persuade the court to
enter a final judgment of conviction, the underlying reasons supporting the

constitutional ban on multiple trials applies and becomes compelling. The reason
is not only the defendants already established innocence at the first trial where he
had been placed in peril of conviction, but also the same untoward and prejudicial
consequences of a second trial initiated by a government who has at its disposal all
the powers and resources of the State.
Unfairness and prejudice would necessarily result, as the government would then
be allowed another opportunity to persuade a second trier of the defendants guilt
while strengthening any weaknesses that had attended the first trial, all in a
process where the governments power and resources are once again employed
against the defendants individual means. That the second opportunity comesvia
an appeal does not make the effects any less prejudicial by the standards of reason,
justice and conscience. (Emphases supplied, citations omitted)
It must be clarified, however, that the finality of judgment evinced in Section 7 of
Rule 120 does not confer blanket invincibility on criminal judgments. We have
already explained in our Decision that the rule on double jeopardy is not absolute,
and that this rule is inapplicable to cases in which the state assails the very
jurisdiction of the court that issued the criminal judgment.29 The reasoning behind
the exception is articulated in Nazareno, from which we quote: 30
In such instance, however, no review of facts and law on the merits, in the manner
done in an appeal, actually takes place; the focus of the review is on whether the
judgment is per sevoid on jurisdictional grounds, i.e., whether the verdict was
rendered by a court that had no jurisdiction; or where the court has appropriate
jurisdiction, whether it acted with grave abuse of discretion amounting to lack or
excess of jurisdiction. In other words, the review is on the question of whether
there has been a validly rendered decision, not on the question of the decisions
error or correctness. Under the exceptional nature of a Rule 65 petition, the burden
a very heavy one is on the shoulders of the party asking for the review to show
the presence of a whimsical or capricious exercise of judgment equivalent to lack of
jurisdiction; or of a patent and gross abuse of discretion amounting to an evasion
of a positive duty or a virtual refusal to perform a duty imposed by law or to act in
contemplation of law; or to an exercise of power in an arbitrary and despotic
manner by reason of passion and hostility. (Emphases supplied, citations omitted)
While this Courts Decision in Tan may have created an impression of the
unassailability of a criminal judgment as soon as the accused applies for probation,
we point out that what the state filed therein was a mere motion for the
modification of the penalty, and not a Rule 65 petition. A petition for certiorari is a
special civil action that is distinct and separate from the main case. While in the
main case, the core issue is whether the accused is innocent or guilty of the crime
charged, the crux of a Rule 65 petition is whether the court acted (a) without or in

excess of its jurisdiction; or (b) with grave abuse of discretion amounting to lack or
excess of jurisdiction. Hence, strictly speaking, there is nomodification of judgment
in a petition for certiorari, whose resolution does not call for a re-evaluation of the
merits of the case in order to determine the ultimate criminal responsibility of the
accused. In a Rule 65 petition, any resulting annulment of a criminal judgment is
but a consequence of the finding of lack of jurisdiction.
In view thereof, we find that the proper interpretation of Section 7 of Rule 120
must be that it is inapplicable and irrelevant where the courts jurisdiction is being
assailed through a Rule 65 petition. Section 7 of Rule 120 bars the modification of a
criminal judgment only if the appeal brought before the court is in the nature of a
regular appeal under Rule 41, or an appeal by certiorari under Rule 45, and if that
appeal would put the accused in double jeopardy. As it is, we find no irregularity in
the partial annulment of the CA Decision in CA-G.R. No. 15520 in spite of its
finality, as the judgment therein was issued with grave abuse of discretion
amounting to lack or excess of jurisdiction.
The orders of Caloocan City RTC
Branch 130 have no legal effect, as
they were issued without jurisdiction.
First, Tecson et al. filed their Applications for Probation with the wrong court. Part
and parcel of our criminal justice system is the authority or jurisdiction of the court
to adjudicate and decide the case before it. Jurisdiction refers to the power and
capacity of the tribunal to hear, try, and decide a particular case or matter before
it.31 That power and capacity includes the competence to pronounce a judgment,
impose a punishment,32 and enforce or suspend33 the execution of a sentencein
accordance with law.
The OSG questions34 the entire proceedings involving the probation applications of
Tecson et al. before Caloocan City RTC Branch 130. Allegedly, the trial court did
not have competence to take cognizance of the applications, considering that it was
not the court of origin of the criminal case. The OSG points out that the trial court
that originally rendered the Decision in Criminal Case No. C-38340(91) was
Branch 121 of the Caloocan City RTC.
The pertinent provision of the Probation Law is hereby quoted for reference:
SEC. 4. Grant of Probation. Subject to the provisions of this Decree, the trial
court may, after it shall have convicted and sentenced a defendant, and upon
application by said defendant within the period for perfecting an appeal, suspend

the execution of the sentence and place the defendant on probation for such period
and upon such terms and conditions as it may deem best; Provided, That no
application for probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction. x x x x (Emphases supplied)
It is obvious from the foregoing provision that the law requires that an application
for probation be filed withthe trial court that convicted and sentenced the
defendant, meaning the court of origin. Here, the trial court that originally
convicted and sentenced Tecson et al.of the crime of homicide was Branch 121
not Branch 130 of the Caloocan City RTC.35 Neither the judge of Branch 130 in
his Orders nor Tecson et al.in their pleadings have presented any explanation or
shown any special authority that would clarify why the Applications for Probation
had not been filed with or taken cognizance of by Caloocan City RTC Branch 121.
While we take note that in a previous case, the CA issued a Decision ordering the
inhibition of Branch 121 Judge Adoracion G. Angeles from hearing and deciding
Criminal Case No. C-38340(91), the ruling was made specifically applicable to the
trial of petitioners therein, i.e. accused Concepcion, Ampil, Adriano, and S.
Fernandez.36
Tecson et al. thus committed a fatal error when they filed their probation
applications with Caloocan City RTC Branch 130, and not with Branch 121. We
stress that applicants are not at liberty to choose the forum in which they may seek
probation, as the requirement under Section 4 of the Probation law is substantive
and not merely procedural. Considering, therefore, that the probation proceedings
were premised on an unwarranted exercise of authority, we find that Caloocan City
RTC Branch 130 never acquired jurisdiction over the case.
Second, the records of the casewere still with the CA when Caloocan City RTC
Branch 130 granted the probation applications. Jurisdiction over a case is lodged
with the court in which the criminal action has been properly instituted. 37 If a party
appeals the trial courts judgment or final order,38 jurisdiction is transferred to the
appellate court. The execution of the decision is thus stayed insofar as the
appealing party is concerned.39 The court of origin then loses jurisdiction over the
entire case the moment the other partys time to appeal has expired.40 Any residual
jurisdiction of the court of origin shall cease including the authority to order
execution pending appeal the moment the complete records of the case are
transmitted to the appellate court.41 Consequently, it is the appellate court that
shall have the authority to wield the power to hear, try, and decide the case before
it, as well as to enforce its decisions and resolutions appurtenant thereto. That
power and authority shall remain with the appellate court until it finally disposes
of the case. Jurisdiction cannot be ousted by any subsequent event, even if the

nature of the incident would have prevented jurisdiction from attaching in the first
place.
According to Article 78 of the Revised Penal Code, "[n]o penalty shall be executed
except by virtue of a final judgment." A judgment of a court convicting or
acquitting the accused of the offense charged becomes final under any of the
following conditions among others:42 after the lapse of the period for perfecting an
appeal; when the accused waives the right to appeal; upon the grant of a
withdrawal ofan appeal; when the sentence has already been partially or totally
satisfied or served; or when the accused applies for probation. When the decision
attains finality, the judgment or final order is entered in the book of entries of
judgments.43 If the case was previously appealed to the CA, a certified true copy of
the judgment or final order must be attached to the original record, which shall
then be remanded to the clerk of the court from which the appeal was taken. 44 The
court of origin then reacquires jurisdiction over the case for appropriate action. It
is during this time that the court of origin may settle the matter of the execution of
penalty or the suspension of the execution thereof,45 including the convicts
applications for probation.46
A perusal of the case records reveals that the CA had not yet relinquished its
jurisdiction over the case when Caloocan City RTC Branch 130 took cognizance of
the Applications for Probation of Tecson et al. It shows that the accused filed their
respective applications47 while a motion for reconsideration was still pending
before the CA48and the records were still with that court.49 The CA settled the
motion only upon issuing the Resolution dated 30 August 2002 denying it, or
about seven months after Tecson et al. had filed their applications with the trial
court.50In September 2002, or almost a month before the promulgation of the RTC
Order dated 11 October 2002 granting the probation applications,51 the OSG had
filed Manifestations of Intent to File Petition for Certiorari with the CA 52 and this
Court.53 Ultimately, the OSG assailed the CA judgments by filing before this Court a
Petition for Certiorari on 25 November 2002.54 We noted the petition and then
required respondents to file a comment thereon.55 After their submission of further
pleadings and motions, we eventually required all parties to file their consolidated
memoranda.56 The records of the case remained with the CA until they were
elevated to this Court in 2008.57

For the foregoing reasons, we find that RTC Branch 130 had no jurisdiction to act
on the probation applications of Tecson et al. It had neither the power nor the
authority to suspend their sentence, place them on probation, order their final
discharge, and eventually declare the case against them terminated. This glaring
jurisdictional faux pasis a clear evidence of either gross ignorance of the law oran
underhanded one-upmanship on the part of RTC Branch 130 or Tecson et al., or
both to which this Court cannot give a judicial imprimatur.
In any event, Tecson et al. were ineligible to seek probation at the time they applied
for it. Probation58 is a special privilege granted by the state to penitent qualified
offenders who immediately admit their liability and thus renounce their right to
appeal. In view of their acceptance of their fate and willingness to be reformed, the
state affords them a chance to avoid the stigma of an incarceration recordby
making them undergo rehabilitation outside of prison. Some of the major purposes
of the law are to help offenders to eventually develop themselves into law-abiding
and self respecting individuals, as well as to assist them in their reintegration with
the community.
It must be reiterated that probation is not a right enjoyed by the accused. Rather, it
is an act of grace orclemency conferred by the state. In Francisco v. Court of
Appeals,59 this Court explained thus:
It is a special prerogative granted by law to a person or group of persons not
enjoyed by others or by all. Accordingly, the grant of probation rests solely upon
the discretion of the court which is to be exercised primarily for the benefit of
organized society, and only incidentally for the benefit of the accused. The
Probation Law should not therefore be permitted to divest the state or its
government of any of the latters prerogatives, rights or remedies, unless the
intention of the legislature to this end is clearly expressed, and no person should
benefit from the terms of the law who is not clearly within them. (Emphases
supplied)
The OSG questions the validity of the grant of the probation applications of Tecson
et al.60 It points out that when they appealed to the CA their homicide conviction by
the RTC, they thereby made themselves ineligible to seek probation pursuant to
Section 4 of Presidential Decree No. 968 (the Probation Law).
We refer again to the full text ofSection 4 of the Probation Law as follows:
SEC. 4. Grant of Probation. Subject to the provisions of this Decree, the trial
court may, after it shall have convicted and sentenced a defendant, and upon

application by said defendant within the period for perfecting an appeal, suspend
the execution of the sentence and place the defendant on probation for such period
and upon such terms and conditions as it may deem best; Provided, That no
application for probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction.

months, and 1 day of reclusion temporal as maximum. Accordingly, even if the CA

later downgraded their conviction to slight physical injuries and sentenced them to
20 days of arresto menor, which made the sentence fall within probationable limits
for the first time, the RTC should have nonetheless found them ineligible for
probation at the time.

Probation may be granted whether the sentence imposes a term of imprisonment

or a fine only. An application for probation shall be filed with the trial court. The
filing of the application shall be deemed a waiver of the right to appeal.

The actions of the trial court must thus be adjudged as an arbitrary and despotic
use of authority, so gross that it divested the court of its very power to dispense
justice. As a consequence, the RTC Orders granting the Applications for Probation
of Tecson et al. and thereafter discharging them from their criminal liability must
be deemed to have been issued with grave abuse of discretion amounting to lack or
excess of jurisdiction.

An order granting or denying probation shall not be appealable. (Emphases

supplied)
Indeed, one of the legal prerequisites of probation is that the offender must not
have appealed the conviction.61 In the 2003 case Lagrosa v. Court of Appeals,62 this
Court was faced with the issue of whether a convict may still apply for probation
even after the trial court has imposed a non probationable verdict, provided that
the CA later on lowers the original penalty to a sentence within the probationable
limit. In that case, the trial court sentenced the accused to a maximum term of
eight years of prisin mayor, which was beyond the coverage of the Probation Law.
They only became eligible for probation after the CA reduced the maximum term of
the penalty imposed to 1 year, 8 months and 21 days of prisin correccional.
In deciding the case, this Court invoked the reasoning in Francisco and ruled that
the accused was ineligiblefor probation, since they had filed an appeal with the CA.
In Francisco, we emphasized that Section 4 of the Probation Law offers no
ambiguity and does not provide for any distinction, qualification, or exception.
What is clearis that all offenders who previously appealed their cases, regardless of
their reason for appealing, are disqualified by the law from seeking probation.
Accordingly, this Court enunciated in Lagrosathat the accused are disallowed from
availing themselves of the benefits of probation if they obtain a genuine
opportunity to apply for probation only on appeal as a result of the downgrading of
their sentence from non-probationable to probationable.
While Lagrosa was promulgated three months after Caloocan City RTC Branch 130
issued its various Orders discharging Tecson et al. from probation, the ruling in
Lagrosa, however, was a mere reiteration of the reasoning of this Court since the
1989 case Llamado v. Court of Appeals63 and Francisco. The Applications for
Probation of Tecson et al., therefore, should not have been granted by RTC Branch
130, as they had appealed their conviction to the CA. We recall that respondents
were originally found guilty of homicide and sentenced to suffer 14 years, 8

Whether for lack of jurisdiction orfor grave abuse of discretion, amounting to lack
or excess of jurisdiction, we declare all orders, resolutions, and judgments of
Caloocan City RTC Branch 130 in relation to the probation applications of Tecson
et al. null and void for having been issued without jurisdiction. We find our
pronouncement in Galman v. Sandiganbayan64 applicable, viz:
A void judgment is, in legal effect, no judgment at all. By it no rights are divested.
Through it, no rights can be attained. Being worthless, all proceedings founded
upon it are equally worthless. It neither binds nor bars anyone. All acts performed
under it and all claims flowing out of it are void. (Emphasis supplied)
The ultimate discharge of Tecson et
al. from probation did not totally
extinguish their criminal liability.
Accused Bantug asserts65 that, in any event, their criminal liability has already been
extinguished as a result of their discharge from probation and the eventual
termination of the criminal case against them by Caloocan City RTC Branch 130.
To support his argument, he cites the following provision of the Revised Penal
Code:
ARTICLE 89. How Criminal Liability is Totally Extinguished. Criminal liability
is totally extinguished:
1. By the death of the convict, as to the personal penalties; and as to
pecuniary penalties, liability therefor is extinguished only when the death
of the offender occurs before final judgment.

2. By service of the sentence.

3. By amnesty, which completely extinguishes the penalty and all its
effects.
4. By absolute pardon.
5. By prescription of the crime.
6. By prescription of the penalty.
7. By the marriage of the offended woman, as provided in article 344 of
this Code. (Emphasis supplied)
As previously discussed, a void judgment cannot be the source of legal rights;
legally speaking, it is as if no judgment had been rendered at all. Considering our
annulment of the Orders of Caloocan City RTC Branch 130 in relation to the
probation proceedings, respondents cannot claim benefits that technically do not
exist.
In any event, Tecson et al.cannot invoke Article89 of the Revised Penal Code, as we
find it inapplicable to this case. One of the hallmarks of the Probation Law is
precisely to "suspend the execution of the sentence,"66 and not to replace the
original sentence with another, as we pointed out in our discussion in Baclayon v.
Mutia:67
An order placing defendant on "probation" is not a "sentence" but is rather in effect
a suspension of the imposition of sentence. It is not a final judgment but is rather
an "interlocutory judgment"in the nature of a conditional order placing the
convicted defendant under the supervision of the court for his reformation, to be
followed by a final judgment of discharge, if the conditions of the probation are
complied with, or by a final judgment of sentence if the conditions are violated.
(Emphases supplied)
Correspondingly, the criminal liability of Tecson et al.remains.
In light of our recent Decision in
Colinares v. People, Tecson et al.
may now reapply for probation.
Very recently, in Colinares v. People, we revisited our ruling in Franciscoand
modified our pronouncements insofar as the eligibility for probation of those who
68

appeal their conviction is concerned. Through a majority vote of 9-6, the Court En
Bancin effect abandoned Lagrosaand settled the following once and for all: 69
Secondly, it is true that under the probation law the accused who appeals "from the
judgment of conviction" is disqualified from availing himself of the benefits of
probation. But, as it happens, two judgments of conviction have been meted out to
Arnel: one, a conviction for frustrated homicide by the regional trial court,now set
aside; and, two, a conviction for attempted homicide by the Supreme Court.
If the Court chooses to go by the dissenting opinions hard position, it will apply
the probation law on Arnel based on the trial courts annulled judgment against
him. He will not be entitled to probation because of the severe penalty that such
judgment imposed on him. More, the Supreme Courts judgment of conviction for
a lesser offense and a lighter penalty will also have to bend over to the trial courts
judgment even if this has been found in error. And, worse, Arnel will now also be
made to pay for the trial courts erroneous judgment with the forfeiture of his right
to apply for probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw(the
horse errs, the carabao gets the whip). Where is justice there?
The dissenting opinion also expresses apprehension that allowing Arnel to apply
for probation would dilute the ruling of this Court in Francisco v. Court of
Appealsthat the probation law requires that an accused must not have appealed his
conviction before he can avail himself of probation. But there is a huge difference
between Franciscoand this case.
xxxx
Here, however, Arnel did not appeal from a judgment that would have allowed him
to apply for probation. He did not have a choice between appeal and probation.
Hewas not in a position to say, "By taking this appeal, I choose not to apply for
probation." The stiff penalty that the trial court imposed on him denied him that
choice. Thus, a ruling that would allow Arnel to now seek probation under this
Courts greatly diminished penalty will not dilute the sound ruling in Francisco. It
remains that those who will appeal from judgments of conviction, when they have
the option to try for probation, forfeit their right to apply for that privilege.
xxxx
In a real sense, the Courts finding that Arnel was guilty, not of frustrated
homicide, but only of attempted homicide, is an original conviction that for the
first time imposes on him a probationable penalty. Had the RTC done him right

from the start, it would have found him guilty of the correct offense and imposed
on him the right penalty of two years and four months maximum. This would have
afforded Arnel the right to apply for probation.
The Probation Law never intended to deny an accused his right to probation
through no fault of his. The underlying philosophy of probation is one of liberality
towards the accused. Such philosophy is not served by a harsh and stringent
interpretation of the statutory provisions. As Justice Vicente V. Mendoza said in
his dissent in Francisco, the Probation Law must not be regarded as a mere
privilege to be given to the accused only where it clearly appears he comes within
its letter; to do so would be to disregard the teaching in many cases that the
Probation Law should be applied in favor of the accused not because it is a criminal
law but to achieve its beneficent purpose.
xxxx
At any rate, what is clear is that, had the RTC done what was right and imposed on
Arnel the correct penalty of two years and four months maximum, he would
havehad the right to apply for probation. No one could say with certainty that he
would have availed himself of the right had the RTC doneright by him. The idea
may not even have crossed his mind precisely since the penalty he got was not
probationable.
The question in this case is ultimately one of fairness.1wphi1 Is it fair to deny
Arnel the right to apply for probation when the new penalty that the Court imposes
on him is, unlike the one erroneously imposed by the trial court, subject to
probation? (Emphases supplied)
In our Decision, we set aside the RTC and the CA judgments and found Tecson et
al.ultimately liable for the crime of reckless imprudence resulting in homicide.
Pursuant to Article 365 of the Revised Penal Code, the offense is punishable by
arresto mayor in its maximum period (from 4 months and 1 day to 6 months) to
prisin correccional in its medium period (from 2 years, 4 months, and 1 day to 4
years and 2 months). Considering that the new ruling in Colinares is more
favorable to Tecson et al., we rule that they are now eligible to apply for probation.
Since Fidelito Dizon (Dizon) was convicted of the same crime, we hereby clarify
that Dizon is also eligible for probation.
While we cannot recognize the validityof the Orders of RTC Branch 130, which
granted the Applications for Probation, we cannot disregard the fact that Tecson et
al. have fulfilled the terms and conditions of their previous probation program and

have eventually been discharged therefrom. Thus, should they reapply for
probation, the trial court may, at its discretion, consider their antecedent probation
service in resolving whether to place them under probation at this time and in
determining the terms, conditions, and period thereof.
Final clarificatory matters
We now take this opportunity to correct an unintentional typographical error in
the minimum term of the penalty imposed on the accused Dizon and Tecson et al.
While this issue was not raised by any of the parties before us, this Court deems it
proper to discuss the matter ex proprio motuin the interest of justice. In the first
paragraph of the dispositive portion of our Decision dated 1 February 2012, the
fourth sentence reads as follows:
They are hereby sentenced to suffer anindeterminate prison term of four (4)
months and one (1) day of arresto mayor, as minimum, to four (4) years and two
(2) months of prisin correccional, as maximum.
As we had intended to impose on the accused the maximum term of the "penalty
next lower" than that prescribed by the Revised Penal Code for the offense of
reckless imprudence resulting in homicide, in accordance with the Indeterminate
Sentence Law (ISL),70 the phrase "and one (1) day," which had been inadvertently
added, must be removed. Consequently, in the first paragraph of the dispositive
portion, the fourth sentence should now read as follows:
They are hereby sentenced to suffer anindeterminate prison term of four (4)
months of arresto mayor, as minimum, to four (4) years and two (2) months of
prisin correccional, as maximum. In this instance, we further find it important to
clarify the accessory penalties inherent to the principal penalty imposed on Dizon
and Tecson et al.
By operation of Articles 40 to 45 and 73 of the Revised Penal Code, a
corresponding accessory penalty automatically attaches every time a court lays
down a principal penalty outlined in Articles 25 and 27 thereof.71The applicable
accessory penalty is determined by using as reference the principal penaltyimposed
by the court before the prison sentence is computed in accordance with the
ISL.72 This determination is made in spite of the two classes ofpenalties mentioned
in an indeterminate sentence. It must be emphasized that the provisions on the
inclusion of accessory penalties specifically allude to the actual
"penalty"73 imposed, not to the "prison sentence"74 set by a court. We believe that
the ISL did not intend to have the effect of imposing on the convict two distinct

sets of accessory penalties for the same offense.75 The two penalties are only
relevant insofar as setting the minimum imprisonment period is concerned, after
which the convict may apply for parole and eventually seek the shortening of the
prison term.76
Under Article 365 of the Revised Penal Code, the prescribed penalty for the crime
of reckless imprudence resulting in homicide is arresto mayor in its maximum
period to prisin correccionalin its medium period. As this provision grants courts
the discretion tolay down a penalty without regard to the presence of mitigating
and aggravating circumstances, the imposable penaltymust also be within the
aforementioned range.77 Hence, before applying the ISL, we ultimately imposed on
Dizon and Tecson et al. the actual (straight) penalty78 of four years and two months
of prisin correccional.79 Pursuant to Article 43 of the Revised Penal Code, the
penalty of prisin correccional automatically carries with it80 the following
accessory penalties: ARTICLE 43. Prisin Correccional Its accessory penalties.
The penalty of prisin correccional shall carry with it that of suspension from
public office, from the right tofollow a profession or calling, and that of perpetual
special disqualification from the right of suffrage, if the duration of said
imprisonment shall exceed eighteen months. The offender shall suffer the
disqualification provided in this article although pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon.
The duration of their suspension shall be the same as that of their principal penalty
sans the ISL; that is, for four years and two months81 or until they have served their
sentence in accordance with law. Their suspension takes effect immediately, once
the judgment of conviction becomes final.82
We further point out that if the length of their imprisonment exceeds 18 months,
they shall furthermore suffer a perpetual special disqualification from the right of
suffrage. Under Article 32 of the RevisedPenal Code, if this accessory penalty
attaches, it shall forever deprive them of the exercise of their right (a) to vote in any
popular election for any public office; (b) to be elected to that office; and (c) to hold
any public office.83 Any public office that they may be holding becomes vacant
upon finality of the judgment.84 The aforementioned accessory penalties can only
be wiped out if expressly remitted in a pardon.85
Of course, the aforementioned accessory penalties are without prejudice to a grant
of probation, shouldthe trial court find them eligible therefor. As we explained in
Baclayon,86 the grant of probation suspends the execution of the principal penalty
of imprisonment, as well as that of the accessory penalties. We have reiterated this
point in Moreno v. Commission on Elections:87

In Baclayon v. Mutia, the Court declared that an order placing defendant on

probation is not a sentence but is rather, in effect, a suspension of the imposition of
sentence. We held that the grant of probation to petitioner suspended the
imposition of the principal penalty of imprisonment, as well as the accessory
penalties of suspension from public office and from the right to follow a profession
or calling, and that of perpetual special disqualification from the right of suffrage.
We thus deleted from the order granting probation the paragraph which required
that petitioner refrain from continuing with her teaching profession.
Applying this doctrine to the instant case, the accessory penalties of suspension
from public office, from the right to follow a profession or calling, and that of
perpetual special disqualification from the right of suffrage, attendant to the
penalty of arresto mayor in its maximum period to prision correccional in its
minimum period imposed upon Moreno were similarly suspended upon the grant
of probation.
It appears then that during the period of probation, the probationer is not even
disqualified from running for a public office because the accessory penalty of
suspension from public office is put on hold for the duration of the probation. x x x
x. During the period of probation, the probationer does not serve the penalty
imposed upon him by the court but is merely required to comply with all the
conditions prescribed in the probation order.
WHEREFORE, premises considered, the Motion for Partial Reconsideration of
petitioner Gerarda H. Villa in connection with G.R. Nos. 178057 & 178080 is
hereby DENIED. The Motion for Reconsideration filed by the Office of the Solicitor
General concerning G.R. Nos. 155101 and 154954 is also DENIED.
The respective Motions for Clarification or Reconsideration of Antonio Mariano
Almeda, Junel Anthony D. Arna, Renato Bantug, Jr., and Vincent Tecson are
likewise DENIED. In light of the finding that Caloocan City Regional Trial Court
Branch 130 acted without or in excess of its jurisdiction in taking cognizance of the
aforementioned Applications for Probation, we hereby ANNUL the entire
probation proceedings and SET ASIDE all orders, resolutions, or judgments issued
in connection thereto. We, however, CLARIFY that Antonio Mariano Almeda,
Junel Anthony D. Arna, Renato Bantug, Jr., Vincent Tecson, and Fidelito Dizon are
eligible to apply or reapply for probation in view of our recent ruling in Colinares v.
People of the Philippines,88 without prejudice to their remaining civil liability, if
any.

Furthermore, we issue a CORRECTION of the dispositive portion of our Decision

dated 1 February 2012 and hereby delete the phrase "and one (1) day" located in
the fourth sentence of the first paragraph thereof. The sentence shall now read as
follows: "They are hereby sentenced to suffer an indeterminate prison term of four
(4) months of arresto mayor, as minimum, to four (4) years and two (2) months of
prisi6n correccional, as maximum."
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-47448 May 17, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. EMETERIO C. OCAYA, as District Judge, 15th Judicial District,
Branch VI, Province of Bukidnon, and ESTERLINA MARAPAO,
LETICIA MARAPAO and DIOSDADO MARAPAO, respondents.

Arcadio D. Fabria and Camilo E. Tamin, Office of the Provincial Fiscal of

Malaybalay, Bukidnon for petitioner.
Eusebio P. Aquino for private respondents.

which injury considerably deforms her face, and further causing upon said Mrs.
LOLITA ARES to suffer a relapse (nabughat in the local dialect) arising from her
weak constitution due to her recent child delivery, which relapse incapacitated her
from performing her customary labor for a period of more than thirty days.
Contrary to and in violation of Article 263, paragraph 3 of the
Revised Penal Code.

TEEHANKEE, J.:
The Court declares the questioned orders of respondent judge dismissing the
information for supposed lack of jurisdiction as null and void. Respondent judge
wrongfully dismissed the case before him in disregard to the elemental rule that
jurisdiction is determined by the allegations of the information and that the offense
of serious physical injuries charged in the information had duly vested his court
with jurisdiction. The Court orders the transfer of the case below to another branch
of the Bukidnon court of-first instance, since it is doubtful that the State and
offended party may expect a fair and impartial hearing and determination of the
case from respondent judge who with his erroneous pre-conceptions and
predilections has adversely prejudged their case for serious physical injuries as one
merely of slight or less serious physical injuries.
The office of the provincial fiscal of Bukidnon, after preliminary investigation filed
an information dated October 13, 1977 in the court of respondent judge, charging
the three private respondents- accused (Esterlina Marapao, Leticia Marapao and
Diosdado Marapao) for serious physical injuries committed as follows:
That on or about the 23rd day of July, 1977, in Don Carlos,
Bukidnon, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring,
confederating and mutually helping each other, did then and there
willfully unlawfully and feloneously attack, assault and use
personal violence upon one Mrs. LOLITA ARES, a mother who
was then still on the twelfth (12th) day from her child delivery, by
then and there wrestling her to the ground and thereafter throwing
and hitting her with a fist-size stone at the face thereby inflicting
upon said Mrs. LOLITA ARES:lacerated wound, transverse right at about 2.5 cm. x 0.5 cm. in
width at the level of the m arch of the face, with contusion and
swelling all around the inflicted area

The records do not show that arraignment or trial on the merits has been held,
much less that warrants for the arrest of the accused had been issued. Instead,
after "scanning the records of (the) case" and noting that the thereto attached
medical certificate stated that the injuries suffered by the victim Lolita Ares would
require medical attention from 7 to 10 days and, therefore, 4 "may either be slight
or less serious physical injuries only" contrary to victim's affidavit that she was
incapacitated from her customary labor for more than 30 days and the fiscal's
findings as to the prominent sear left on the victim's face as a result "which
considerably deforms her face" (as duly alleged in the information), respondent
judge motu proprio ordered the dismissal of the case "as the crime of slight or less
physical injury is not within the jurisdiction of the court" as per his Order of
October 27, 1977, stating as his reason that
The Court is of the opinion that what governs in the filing of a
physical injury case is the certificate issued by the physician
regarding the duration of treatment, and not what the victim
declares because the same is self-serving.
The fiscal's motion for reconsideration proved futile with respondent judge in his
Order of November 16, 1977 denying the same, evaluating the case without having
heard the parties or their witnesses (particularly the physician who issued the
medical certificate) nor having received their evidence and ruling against the
deformity alleged in the information on the basis of his perception from a reading
of the medical certificate and the fiscal's written resolution finding proper basis for
the filing of the information, that
Now, does the finding of the fiscal to the effect that he observed a
big scar at the left cheek bone of Mrs. Lolita Ares justify the filing
of the charge of serious physical injuries, under Article 263 of the
Revised Penal Code, when the attending physician certified that
what he found was a lacerated wound on the right side of the face?
Clearly, the scar found by the investigating fiscal could not be the
result of the acts imputed to the accused but for some other cause,

for how could the scar be found on the left side when the injury
inflicted was on the right side? (Emphasis supplied)
Hence, the petition at bar as filed by the provincial fiscal for nullification of
respondent judge's orders.
The Solicitor General in his comment has noted that there is ample legal and
factual basis for the information charging serious physical injuries, stating that
"(T)hat the allegations in the Information that a fist-size stone hit the face of Lolita
Ares causing lacerated wound on the maxillary arch of the face which considerably
deformed her face (are) not only supported by the medical certificate, but also by
the admission of accused Diosdado Marapao during the pre investigation that he
threw a fist-size stone which hit the face of Lolita Ares and the personal finding of
Fiscal Tamin during the preliminary in. investigation that there is a prominent scar
on her face," and that the offense as charged falls under Article 263, paragraph 3 of
the Revised Penal Code which imposes thereon a penalty of prision correccional in
its minimum and medium periods and is therefore properly cognizable by
respondent judge's court.
The Court finds that respondent judge committed a grave abuse of discretion in
precipitately dismissing the case for alleged lack of jurisdiction on the mere basis
of his totally wrong notion that what governs in the filing of a physical injury case
is the medical certificate regarding the duration of treatment and "not what the
victim declares because the same is self-serving."
It is elemental that the jurisdiction of a court in criminal cases is determined by the
allegations of the information or criminal complaint and not by the result of the
evidence presented at the trial,' much less by the trial judge's personal appraisal of
the affidavits and exhibits attached by the fiscal to the record of the case without
hearing the parties and their witnesses nor receiving their evidence at a proper
trial.
It is equally elementary that the mere fact that evidence presented at the trial
would indicate that a lesser offense outside the trial, 1 court's jurisdiction was
committed does not deprive the trial court of its jurisdiction which had vested in it
under the allegations of the information as filed since "(once) the jurisdiction
attaches to the person and subject matter of the litigation, the subsequent
happening of events, although they are of such a character as would have
prevented jurisdiction from attaching in the first instance, will not operate to oust
jurisdiction already attached. 2

Indeed, the Solicitor General has aptly commented that "the dismissal of the case
had only resulted in duplication of work and wasted time in the remand of records
when respondent trial judge dismissed the instant case for want of jurisdiction,
when it could have immediately proceeded to arraign the accused and try him. "
Once more the Court is constrained to admonish the trial courts to proceed with
proper study and circumspection before summarily dismissing cases duly filed
within their court's cognizance and needlessly burdening the appellate courts with
cases such as that at bar which should not have reached us at all in the first
instance. Respondent judge's disregard of the established rule that the information
for serious physical injuries properly vested his court with jurisdiction to try and
hear the case, and that if from the evidence submitted a lesser offense was
established, that he equally had jurisdiction to impose the sentence for such lesser
offense, is difficult of comprehension. Besides, the doctor who issued the medical
certificate had yet to be presented at the trial and conceivably could corroborate
the victim's testimony that her injuries had taken longer to heal than had at first
been estimated by him as well as clearify the location of he victim's facial scar.
Respondent judge's actions and premature and baseless declaration that the
victim's declaration as to the period of her incapacity is "self-serving" raise serious
doubts as to whether the State and the offended party may expect a fair and
impartial hearing and determination of the case from him, since seemingly with his
erroneous pre-conceptions and predilections, he has adversely prejudged their case
as one merely of slight or less serious physical injuries. The case below should
therefore be transferred to another court presided by another judge.
ACCORDINGLY, the questioned orders of respondent judge are declared null and
void. The case below for serious physical injuries is remanded and ordered
transferred to Branch V of the court of first instance below, and the judge presiding
the same is ordered to issue the corresponding warrants of arrest and to proceed
with dispatch with the arraignment of the respondents-accused and the trial and
determination of the case on the merits. Let copy of this decision be attached to the
personal record of respondent judge. No pronouncement as to costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 169533

March 20, 2013

GEORGE BONGALON, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:

Grade VI pupil of MABA Institute, Legazpi City, acts of physical abuse and/or
maltreatment by striking said JAYSON DELA CRUZ with his palm hitting the
latter at his back and by slapping said minor hitting his left cheek and uttering
derogatory remarks to the latters family to wit: "Mga hayop kamo, para dayo kamo
digdi, Iharap mo dito ama mo" (You all animals, you are all strangers here. Bring
your father here), which acts of the accused are prejudicial to the childs
development and which demean the intrinsic worth and dignity of the said child as
a human being.
CONTRARY TO LAW.3

Not every instance of the laying of hands on a child constitutes the crime of child
abuse under Section 10 (a) of Republic Act No. 7610.1 Only when the laying of
hands is shown beyond reasonable doubt to be intended by the accused to debase,
degrade or demean the intrinsic worth and dignity of the child as a human being
should it be punished as child abuse. Otherwise, it is punished under the Revised
Penal Code.
The Case
On June 22, 2005,2 the Court of Appeals (CA) affirmed the conviction of the
petitioner for the crime of child abuse under Section 10 (a) of Republic Act No.
7610.
Antecedents
On June 26, 2000, the Prosecutors Office of Legazpi City charged the petitioner in
the Regional Trial Court (RTC) in Legazpi City with child abuse, an act in violation
of Section 10(a) of Republic Act No. 7610, alleging as follows:
That on or about the 11th day of May 2000, in the City of Legazpi Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, did then
and there wilfully, unlawfully and feloniously commit on the person of JAYSON
DELA CRUZ, a twelve year-old,

The Prosecution showed that on May 11, 2002, Jayson Dela Cruz (Jayson) and
Roldan, his older brother, both minors, joined the evening procession for the Santo
Nio at Oro Site in Legazpi City; that when the procession passed in front of the
petitioners house, the latters daughter Mary Ann Rose, also a minor, threw stones
at Jayson and called him "sissy"; that the petitioner confronted Jayson and Roldan
and called them names like "strangers" and "animals"; that the petitioner struck
Jayson at the back with his hand, and slapped Jayson on the face;4 that the
petitioner then went to the brothers house and challenged Rolando dela Cruz,
their father, to a fight, but Rolando did not come out of the house to take on the
petitioner; that Rolando later brought Jayson to the Legazpi City Police Station and
reported the incident; that Jayson also underwent medical treatment at the Bicol
Regional Training and Teaching Hospital;5 that the doctors who examined Jayson
issued two medical certificates attesting that Jayson suffered the following
contusions, to wit: (1) contusion .5 x 2.5 scapular area, left; and (2) +1x1 cm.
contusion left zygomatic area and contusion .5 x 2.33 cm. scapular area, left. 6
On his part, the petitioner denied having physically abused or maltreated Jayson.
He explained that he only talked with Jayson and Roldan after Mary Ann Rose and
Cherrylyn, his minor daughters, had told him about Jayson and Roldans throwing
stones at them and about Jaysons burning Cherrylyns hair. He denied shouting
invectives at and challenging Rolando to a fight, insisting that he only told Rolando
to restrain his sons from harming his daughters.7
To corroborate the petitioners testimony, Mary Ann Rose testified that her father
did not hit or slap but only confronted Jayson, asking why Jayson had called her
daughters "Kimi" and why he had burned Cherrlyns hair. Mary Ann Rose denied
throwing stones at Jayson and calling him a "sissy." She insisted that it was instead
Jayson who had pelted her with stones during the procession. She described the
petitioner as a loving and protective father.8

Ruling of the RTC

After trial, the RTC found and declared the petitioner guilty of child abuse as
charged, to wit:9

The petitioner asserts that he was not guilty of the crime charged; and that even
assuming that he was guilty, his liability should be mitigated because he had
merely acted to protect her two minor daughters.
Ruling of the Court

WHEREFORE, in view of the foregoing considerations, judgment is hereby

rendered finding the accused GEORGE BONGALON @ "GI" GUILTY beyond
reasonable doubt of Violation of Republic Act No. 7610, and is hereby ordered to
undergo imprisonment of six (6) years and one (1) day to eight (8) years of prision
mayor in its minimum period.

At the outset, we should observe that the petitioner has adopted the wrong remedy
in assailing the CAs affirmance of his conviction. His proper recourse from the
affirmance of his conviction was an appeal taken in due course. Hence, he should
have filed a petition for review on certiorari. Instead, he wrongly brought a petition
for certiorari. We explained why in People v. Court of Appeals: 12

SO ORDERED.
Ruling of the CA
On appeal, the petitioner assailed the credibility of the Prosecution witnesses by
citing their inconsistencies. He contended that the RTC overlooked or disregarded
material facts and circumstances in the records that would have led to a favorable
judgment for him. He attacked the lack of credibility of the witnesses presented
against him, citing the failure of the complaining brothers to react to the incident,
which was unnatural and contrary to human experience.
The CA affirmed the conviction, but modified the penalty,10 viz:
WHEREFORE, premises considered, the decision dated October 20, 2003 of the
Regional Trial Court, Branch 9 of Legazpi City is hereby AFFIRMED with
MODIFICATION in that accused-appellant George Bongalon is sentenced to suffer
the indeterminate penalty of (4) years, two (2) months and one (1) day of prision
correccional, as minimum term, to six (6) years, eight (8) months and 1 day of
prision mayor as the maximum term.
Further, accused-appellant is ordered to pay the victim, Jayson de la Cruz the
additional amount of P5,000 as moral damages.
SO ORDERED.
Issues
The petitioner has come to the Court via a petition for certiorari under Rule 65 of
the Rules of Court.11

The special civil action for certiorari is intended for the correction of errors of
jurisdiction only or grave abuse of discretion amounting to lack or excess of
jurisdiction. Its principal office is only 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. As observed in Land Bank
of the Philippines v. Court of Appeals, et al. "the special civil action for certiorari is
a remedy designed for the correction of errors of jurisdiction and not errors of
judgment. The raison detre for the rule is when a court exercises its jurisdiction,
an error committed while so engaged does not deprived it of the jurisdiction being
exercised when the error is committed. If it did, every error committed by a court
would deprive it of its jurisdiction and every erroneous judgment would be a void
judgment. In such a scenario, the administration of justice would not survive.
Hence, where the issue or question involved affects the wisdom or legal soundness
of the decisionnot the jurisdiction of the court to render said decisionthe same is
beyond the province of a special civil action for certiorari. The proper recourse of
the aggrieved party from a decision of the Court of Appeals is a petition for review
on certiorari under Rule 45 of the Revised Rules of Court.
It is of no consequence that the petitioner alleges grave abuse of discretion on the
part of the CA in his petition. The allegation of grave abuse of discretion no more
warrants the granting of due course to the petition as one for certiorari if appeal
was available as a proper and adequate remedy. At any rate, a reading of his
presentation of the issues in his petition indicates that he thereby imputes to the
CA errors of judgment, not errors of jurisdiction. He mentions instances attendant
during the commission of the crime that he claims were really constitutive of
justifying and mitigating circumstances; and specifies reasons why he believes
Republic Act No. 7610 favors his innocence rather than his guilt for the crime
charged.13 The errors he thereby underscores in the petition concerned only the
CAs appreciation and assessment of the evidence on record, which really are
errors of judgment, not of jurisdiction.

Even if we were to treat the petition as one brought under Rule 45 of the Rules of
Court, it would still be defective due to its being filed beyond the period provided
by law. Section 2 of Rule 45 requires the filing of the petition within 15 days from
the notice of judgment to be appealed. However, the petitioner received a copy of
the CAs decision on July 15, 2005,14 but filed the petition only on September 12,
2005,15 or well beyond the period prescribed by the Rules of Court.

(a) Any person who shall commit any other acts of child abuse, cruelty or
exploitation or be responsible for other conditions prejudicial to the childs
development including those covered by Article 59 of Presidential Decree No. 603,
as amended, but not covered by the Revised Penal Code, as amended, shall suffer
the penalty of prision mayor in its minimum period.
xxxx

The procedural transgressions of the petitioner notwithstanding, we opt to forego

quickly dismissing the petition, and instead set ourselves upon the task of resolving
the issues posed by the petition on their merits. We cannot fairly and justly ignore
his plea about the sentence imposed on him not being commensurate to the wrong
he committed. His plea is worthy of another long and hard look. If, on the other
hand, we were to outrightly dismiss his plea because of the procedural lapses he
has committed, the Court may be seen as an unfeeling tribunal of last resort willing
to sacrifice justice in order to give premium to the rigidity of its rules of procedure.
But the Rules of Court has not been intended to be rigidly enforced at all times.
Rather, it has been instituted first and foremost to ensure justice to every litigant.
Indeed, its announced objective has been to secure a "just, speedy and inexpensive
disposition of every action and proceeding."16 This objective will be beyond
realization here unless the Rules of Court be given liberal construction and
application as the noble ends of justice demand. Thereby, we give primacy to
substance over form, which, to a temple of justice and equity like the Court, now
becomes the ideal ingredient in the dispensation of justice in the case now awaiting
our consideration.
The petitioners right to liberty is in jeopardy. He may be entirely deprived of such
birthright without due process of law unless we shunt aside the rigidity of the rules
of procedure and review his case. Hence, we treat this recourse as an appeal timely
brought to the Court. Consonant with the basic rule in criminal procedure that an
appeal opens the whole case for review, we should deem it our duty to correct
errors in the appealed judgment, whether assigned or not.17
The law under which the petitioner was charged, tried and found guilty of violating
is Section 10 (a), Article VI of Republic Act No. 7610, which relevantly states:
Section 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and other
Conditions Prejudicial to the Childs Development.

Child abuse, the crime charged, is defined by Section 3 (b) of Republic Act No.
7610, as follows:
Section 3. Definition of terms.
xxxx
(b) "Child Abuse" refers to the maltreatment, whether habitual or not, of the child
which includes any of the following:
(1) Psychological and physical abuse, neglect, cruelty, sexual abuse and
emotional maltreatment;
(2) Any act by deeds or words which debases, degrades or demeans the
intrinsic worth and dignity of a child as a human being;
(3) Unreasonable deprivation of his basic needs for survival, such as food
and shelter; or
(4) Failure to immediately give medical treatment to an injured child
resulting in serious impairment of his growth and development or in his
permanent incapacity or death.
xxxx
Although we affirm the factual findings of fact by the RTC and the CA to the effect
that the petitioner struck Jayson at the back with his hand and slapped Jayson on
the face, we disagree with their holding that his acts constituted child abuse within
the purview of the above-quoted provisions. The records did not establish beyond
reasonable doubt that his laying of hands on Jayson had been intended to debase
the "intrinsic worth and dignity" of Jayson as a human being, or that he had
thereby intended to humiliate or embarrass Jayson. The records showed the laying
of hands on Jayson to have been done at the spur of the moment and in anger,

indicative of his being then overwhelmed by his fatherly concern for the personal
safety of his own minor daughters who had just suffered harm at the hands of
Jayson and Roldan. With the loss of his self-control, he lacked that specific intent
to debase, degrade or demean the intrinsic worth and dignity of a child as a human
being that was so essential in the crime of child abuse.
It is not trite to remind that under the well-recognized doctrine of pro reo every
doubt is resolved in favor of the petitioner as the accused. Thus, the Court should
consider all possible circumstances in his favor.18
What crime, then, did the petitioner commit?
Considering that Jaysons physical injury required five to seven days of medical
attention,19 the petitioner was liable for slight physical injuries under Article 266
(1) of the Revised Penal Code, to wit:
Article 266. Slight physical injuries and maltreatment. The crime of slight
physical injuries shall be punished:
1. By arresto menor when the offender has inflicted physical injuries which shall
incapacitate the offended party for labor from one to nine days, or shall require
medical attendance during the same period.
xxxx
The penalty for slight physical injuries is arresto menor, which ranges from one
day to 30 days of imprisonment.20In imposing the correct penalty, however, we
have to consider the mitigating circumstance of passion or obfuscation under

Article 13 (6) of the Revised Penal Code,21 because the petitioner lost his reason
and self-control, thereby diminishing the exercise of his will power.22 Passion or
obfuscation may lawfully arise from causes existing only in the honest belief of the
accused.23 It is relevant to mention, too, that in passion or obfuscation, the offender
suffers a diminution of intelligence and intent. With his having acted under the
belief that Jayson and Roldan had thrown stones at his two minor daughters, and
that Jayson had burned Cherrlyns hair, the petitioner was entitled to the
mitigating circumstance of passion. Arresto menor is prescribed in its minimum
period (i.e., one day to 10 days) in the absence of any aggravating circumstance
that offset the mitigating circumstance of passion. Accordingly, with the
Indeterminate Sentence Law being inapplicable due to the penalty imposed not
exceeding one year,24 the petitioner shall suffer a straight penalty of 10 days of
arresto menor.
The award of moral damages to Jayson is appropriate. Such damages are granted
in criminal cases resulting in physical injuries.25 The amount of P5,000.00 fixed by
the lower courts as moral damages is consistent with the current jurisprudence. 26
WHEREFORE, we SET ASIDE the decision of the Court of Appeals; and ENTER a
new judgment: (a) finding petitioner George Bongalon GUlLTY beyond reasonable
doubt of the crime of SLIGHT PHYSICAL INJURIES under paragraph 1, Article
266, of the Revised Penal Code; (b) sentencing him to suffer the penalty of 10 days
of arresto menor; and (c) ordering him to pay Jayson Dela Cruz the amount
of P5,000.00 as moral damages, plus the costs of suit.
SO ORDERED.