Professional Documents
Culture Documents
DECISION On October 15, 2008, Tullett, through one of its directors, Gordon
Buchan, filed a Complaint-Affidavit[12] with the City Prosecution Office
LEONARDO-DE CASTRO, J.:
of Makati City against the officers/employees of the Tradition Group for
In these consolidated Petitions for Review under Rule 45 of the Rules of violation of the Corporation Code. Impleaded as respondents in the
Court, petitioners James A. Ient (Ient) and Maharlika C. Schulze Complaint-Affidavit were petitioners Ient and Schulze, Jaime Villalon
(Schulze) assail the Court of Appeals Decision[1] dated August 12, 2009 (Villalon), who was formerly President and Managing Director of Tullett,
in CA-G.R. SP No. 109094, which affirmed the Resolutions dated April Mercedes Chuidian (Chuidian), who was formerly a member of Tullett's
23, 2009[2] and May 15, 2009[3] of the Secretary of Justice in I.S. No. Board of Directors, and other John and Jane Does. Villalon and Chuidian
08-J-8651. The Secretary of Justice, through the Resolutions dated April were charged with using their former positions in Tullett to sabotage said
23, 2009 and May 15, 2009, essentially ruled that there was probable company by orchestrating the mass resignation of its entire brokering
cause to hold petitioners, in conspiracy with certain former directors and staff in order for them to join Tradition Philippines. With respect to
officers of respondent Tullet Prebon (Philippines), Inc. (Tullett), Villalon, Tullett claimed that the former held several meetings between
criminally liable for violation of Sections 31 and 34 in relation to Section August 22 to 25, 2008 with members of Tullett's Spot Desk and
144 of the Corporation Code. brokering staff in order to convince them to leave the company. Villalon
likewise supposedly intentionally failed to renew the contracts of some
From an assiduous review of the records, we find that the relevant of the brokers. On August 25, 2008, a meeting was also allegedly held
factual and procedural antecedents for these petitions can be in Howzat Bar in Makati City where petitioners and a lawyer of Tradition
summarized as follows: Philippines were present. At said meeting, the brokers of complainant
Tullett were purportedly induced, en masse, to sign employment
Petitioner Ient is a British national and the Chief Financial Officer of contracts with Tradition Philippines and were allegedly instructed by
Tradition Asia Pacific Pte. Ltd. (Tradition Asia) in Tradition Philippines' lawyer as to how they should file their resignation
Singapore.[4] Petitioner Schulze is a Filipino/German who does letters.
Application Support for Tradition Financial Services Ltd. in London
(Tradition London).[5] Tradition Asia and Tradition London are Complainant also claimed that Villalon asked the brokers present at the
subsidiaries of Compagnie Financiere Tradition and are part of the meeting to call up Tullett's clients to inform them that they had already
"Tradition Group." The Tradition Group is allegedly the third largest resigned from the company and were moving to Tradition Philippines.
group of Inter-dealer Brokers (IDB) in the world while the corporate On August 26, 2008, Villalon allegedly informed Mr. Barry Dennahy,
organization, of which respondent Tullett is a part, is supposedly the Chief Operating Officer of Tullett Prebon in the Asia-Pacific, through
second largest. In other words, the Tradition Group and Tullett are electronic mail that all of Tullett's brokers had resigned. Subsequently,
competitors in the inter-dealer broking business. IDBs purportedly on September 1, 2008, in another meeting with Ient and Tradition
"utilize the secondary fixed income and foreign exchange markets to Philippines' counsel, indemnity contracts in favor of the resigning
execute their banks and their bank customers' orders, trade for a profit employees were purportedly distributed by Tradition Philippines.
and manage their exposure to risk, including credit, interest rate and According to Tullett, respondents Villalon and Chuidian (who were still
exchange rate risks." In the Philippines, the clientele for IDBs is mainly its directors or officers at the times material to the Complaint-Affidavit)
comprised of banks and financial institutions.[6] violated Sections 31 and 34 of the Corporation Code which made them
criminally liable under Section 144. As for petitioners Ient and Schulze,
Tullett was the first to establish a business presence in the Philippines Tullett asserted that they conspired with Villalon and Chuidian in the
and had been engaged in the inter-dealer broking business or voice latter's acts of disloyalty against the company.[13]
brokerage here since 1995.[7] Meanwhile, on the part of the Tradition
Group, the needs of its Philippine clients were previously being serviced Villalon and Chuidian filed their respective Counter-Affivadits.[14]
by Tradition Asia in Singapore. The other IDBs in the Philippines are
Amstel and Icap.[8] Villalon alleged that frustration with management changes in Tullett
Prebon motivated his personal decision to move from Tullett and accept nomenclature of penalties of the Revised Penal Code, the provisions of
the invitation of a Leonard Harvey (also formerly an executive of Tullett) the latter cannot be made to apply suppletorily to the former as provided
to enlist with the Tradition Group. As a courtesy to the brokers and staff, for in the first sentence of Article 10 of the Revised Penal
he informed them of his move contemporaneously with the tender of his Code."[19] Thus, she concluded that a charge of conspiracy which has
resignation letter and claimed that his meetings with the brokers was not for its basis Article 8 of the Revised Penal Code cannot be made
done in bad faith as it was but natural, in light of their long working applicable to the provisions of the Corporation Code.
relationship, that he share with them his plans. The affidavit of Engelbert
Wee should allegedly be viewed with great caution since Wee was one Schulze also claimed that the resignations of Tullett's employees were
of those who accepted employment with Tradition Philippines but done out of their own free will without force, intimidation or pressure on
changed his mind and was subsequently appointed Managing Director her and Ient's part and were well within said employees' right to "free
(Villalon's former position) as a prize for his return. Villalon further choice of employment."[20]
argued that his resignation from Tullett was done in the exercise of his
fundamental rights to the pursuit of life and the exercise of his For his part, petitioner Ient alleged in his Counter-Affidavit that the
profession; he can freely choose to avail of a better life by seeking charges against him were merely filed to harass Tradition Philippines
greener pastures; and his actions did not fall under any of the prohibited and prevent it from penetrating the Philippine market. He further
acts under Sections 31 and 34 of the Corporation Code. It is likewise his asserted that due to the highly specialized nature of the industry, there
contention that Section 144 of the Corporation Code applies only to has always been a regular flow of brokers between the major players.
violations of the Corporation Code which do not provide for a penalty He claimed that Tradition came to the Philippines in good faith and with
while Sections 31 and 34 already provide for the applicable penalties for a sincere desire to foster healthy competition with the other brokers. He
violations of said provisions - damages, accounting and restitution. averred that he never forced anyone to join Tradition Philippines and the
Citing the Department of Justice (DOJ) Resolution dated July 30, 2008 Tullett employees' signing on with Tradition Philippines was their
in UCPB v. Antiporda, Villalon claimed that the DOJ had previously voluntary act since they were discontented with the working environment
proclaimed that Section 31 is not a penal provision of law but only the in Tullett. Adopting a similar line of reasoning as Schulze, Ient believed
basis of a cause of action for civil liability. Thus, he concluded that there that the Revised Penal Code could not be made suppletorily applicable
was no probable cause that he violated the Corporation Code nor was to the Corporation Code so as to charge him as a conspirator. According
the charge of conspiracy properly substantiated.[15] to Ient, he merely acted within his rights when he offered job
opportunities to any interested person as it was within the employees'
Chuidian claimed that she left Tullett simply to seek greener pastures. rights to change their employment, especially since Article 23 of the
She also insisted the complaint did not allege any act on her part that is Universal Declaration of Human Rights (of which the Philippines is a
illegal or shows her participation in any conspiracy. She merely signatory) provides that "everyone has the right to work, to free choice
exercised her right to exercise her chosen profession and pursue a of employment, to just and favorable conditions of work and to protection
better life. Like Villalon, she stressed that her resignation from Tullett against unemployment."[21] He also denounced the ComplaintAffidavit
and subsequent transfer to Tradition Philippines did not fall under any of and the affidavits of Tullett employees attached thereto as self-serving
the prohibited acts under Sections 31 and 34. Section 144 of the or as an exaggeration/twisting of the true events.[22]
Corporation Code purportedly only applies to provisions of said Code
that do not provide for any penalty while Sections 31 and 34 already In a Consolidated Reply-Affidavit[23] notarized on January 22, 2009,
provide for the penalties for their violation - damages, accounting and Tullett argued that Villalon, Chuidian, Schulze, and Ient have mostly
restitution. In her view, that Section 34 provided for the ratification of the admitted the acts attributed to them in the Complaint-Affidavit and only
acts of the erring corporate director, trustee or office evinced legislative attempted to characterize said acts as "normal," "innocent" or
intent to exclude violation of Section 34 from criminal prosecution. She "customary." It was allegedly evident from the Counter-Affidavits that the
argued that Section 144 as a penal provision should be strictly construed resignation of Tullett's employees was an orchestrated plan and not
against the State and liberally in favor of the accused and Tullett has simply motivated by their seeking "greener pastures." Purported
failed to substantiate its charge of bad faith on her part.[16] employee movements in the industry between the major companies are
irrevelant since such movements are subject to contractual obligations.
In her Counter-Affidavit,[17] petitioner Schulze denied the charges Tullett likewise denied that its working environment was stringent and
leveled against her. She pointed out that the Corporation Code is not a "weird." Even assuming that Villalon and Chuidian were dissatisfied with
"special law" within the contemplation of Article 10[18] of the Revised their employment in Tullett, this would supposedly not justify nor exempt
Penal Code on the supplementary application of the Revised Penal them from violating their duties as Tullett's officers/directors. There was
Code to special laws since said provision purportedly applies only to purportedly no violation of their constitutional rights to liberty or to
"special penal laws." She further argued that "[s]ince the Corporation exercise their profession as such rights are not unbridled and subject to
Code does not expressly provide that the provisions of the Revised the laws of the State. In the case of Villalon and Chuidian, they had to
Penal Code shall be made to apply suppletorily, nor does it adopt the comply with their duties found in Sections 31 and 34 of the Corporation
Code. Tullett asserts that Section 144 applies to the case at bar since
the DOJ Resolution in UCPB is not binding as it applies only to the x x x x
parties therein and it likewise involved facts different from the present
case. Relying on Home Insurance Company v. Eastern Shipping The issue that respondent Villalon informed the brokers of his plan to
Lines,[24] Tullett argued that Section 144 applies to all other violations resign from [Tullett] and to subsequently transfer to Tradition is not in
of the Corporation Code without exception. Article 8 of the Revised dispute. However, we are unable to agree that the brokers were induced
Penal Code on conspiracy was allegedly applicable to the Corporation or coerced into resigning from [Tullett] and transferring to Tradition
Code as a special law with a penal provision.[25] themselves. x x x As the record shows, Mr. Englebert Wee and the six
(6) members of the broking staff who stand as [Tullett]'s witnesses, also
In a Supplemental Complaint-Affidavit[26] likewise notarized on January initially resigned from [Tullett] and transferred to Tradition but backed
22, 2009, Tullett included Leonard James Harvey (Harvey) in the case out from their contract of employment with Tradition and opted to remain
and alleged that it learned of Harvey's complicity through the Counter with [Tullett].
Affidavit of Villalon. Tullett claimed that Harvey, who was Chairman of
its Board of Directors at the time material to the Complaint, also Even assuming ex gratia argumenti that the brokers were induced by
conspired to instigate the resignations of its employees and was an the respondents or anyone of them to leave their employment with
indispensable part of the sabotage committed against it. [Tullett], such inducement may only give rise to civil liability for damages
against the respondents but no criminal liability would attach on them. x
In his Rejoiner-Affidavit,[27] Ient vehemently denied that there was a x x.
pre-arranged plan to sabotage Tullett. According to Ient, Gordon Buchan
of Tullett thought too highly of his employer to believe that the Tradition On the alleged inducements of clients of [Tullett] to transfer to Tradition,
Group's purpose in setting up Tradition Philippines was specifically to there is no showing that clients of [Tullett] actually transferred to
sabotage Tullett. He stressed that Tradition Philippines was set up for Tradition. Also, the allegation that respondents orchestrated the mass
legitimate business purposes and Tullett employees who signed with resignation of employees of [Tullett] to destroy or shut down its business
Tradition did so out of their own free will and without any force, and to eliminate it from the market in order that Tradition could take its
intimidation, pressure or inducement on his and Schulze's part. All he place is baseless and speculative. Significantly, it is noted that despite
allegedly did was confirm the rumors that the Tradition Group was the resignations of respondents Villalon and Chuidian and the majority
planning to set up a Philippine office. Echoing the arguments of Villalon of the broking staff and their subsequent transfer to Tradition, the
and Chuidian, Ient claimed that (a) there could be no violation of business of [Tullet] was not destroyed or shut down. [Tullett] was neither
Sections 31 and 34 of the Corporation as these sections refer to eliminated from the market nor its place in the market taken by Tradition.
corporate acts or corporate opportunity; (b) Section 144 of the same x x x
Code cannot be applied to Sections 31 and 34 which already contains
the penalties or remedies for their violation; and (c) conspiracy under the In the same vein, the "corporate opportunity doctrine" enunciated under
Revised Penal Code cannot be applied to the Sections 31 and 34 of the Section 34 does not apply herein and cannot be rightfully raised against
Corporation Code. respondents Villalon and Chuidian. Under Section 34, a director of a
corporation is prohibited from competing with the business in which his
In a Resolution[28] dated February 17, 2009, State Prosecutor corporation is engaged in as otherwise he would be guilty of disloyalty
Cresencio F. Delos Trinos, Jr. (Prosecutor Delos Trinos), Acting City where profits that he may realize will have to go to the corporate funds
Prosecutor of Makati City, dismissed the criminal complaints. He except if the disloyal act is ratified. Suffice it to say that their cited acts
reasoned that: did not involve any competition with the business of [Tullett].[29]
In a Decision dated August 12, 2009, the Court of Appeals affirmed the
Further, respondents Villalon and Chuidian acquired personal and
Secretary of Justice's Resolutions dated April 23, 2009 and May 15,
pecuniary interest in conflict with their duties as directors of complainant.
2009, after holding that: abuse of discretion was committed by the respondent Secretary in
reversing the city prosecutor's dismissal of the criminal complaint and
ordering the filing of the corresponding information against the accused,
Respondent Secretary correctly stressed that Sections 31 and 34 must
including herein petitioners.
be read in the light of the nature of the position of a director and officer
of the corporation as highly imbued with trust and confidence.
As to petitioners' contention that conspiracy had not been established
Petitioners' rigid interpretation of clear-cut instances of liability serves
by the evidence, suffice it to state that such stance is belied by their own
only to undermine the values of loyalty, honesty and fairness in
admission of the very acts complained of in the Complaint-Affidavit, the
managing the affairs of the corporation, which the law vested on their
defense put up by them consists merely in their common argument that
position. Besides, this Court can hardly deduce abuse of discretion on
no crime was committed because private respondent's brokers had the
the part of respondent Secretary in considering a conflict of interest
right to resign and transfer employment if they so decide.
scenario from petitioners' act of advancing the interest of an emerging
competitor in the field rather than fiercely protecting the business of their
It bears to reiterate that probable cause is such set of facts and
own company. As aptly pointed out by the private respondent, the issue
circumstances which would lead a reasonably discreet and prudent man
is not the right of the employee brokers to seek greener pastures or
to believe that the offense charged in the Information or any offense
better employment opportunities but the breach of fiduciary duty owed
included therein has been committed by the person sought to be
by its directors and officers.
arrested. In determining probable cause, the average man weighs the
facts and circumstances without resorting to the calibrations of the rules
In the commentary on the subject of duties of directors and controlling
of evidence of which he has no technical knowledge. He relies on
stockholders under the Corporation Code, Campos explained:
common sense. Thus, a finding of probable cause does not require an
inquiry into whether there is sufficient evidence to procure a conviction.
"Fiduciary Duties; Conflict of Interest It is enough that it is believed that the act or omission complained of
constitutes the offense charged. Precisely, there is a trial for the
"A director, holding as he does a position of trust, is a fiduciary of the reception of evidence of the prosecution in support of the charge.
corporation. As such, in case of conflict of his interest with those of the
corporation, he cannot sacrifice the latter without incurring liability for his Finally, the Court finds no merit in the argument of petitioners that Sec.
disloyal act. The fiduciary duty has many ramifications, and the possible 144 is not applicable since Sec. 31 already provides for liability for
conflict-of-interest situations are almost limitless, each possibility posing damages against the guilty director or corporate officer.
different problems. There will be cases where a breach of trust is clear.
Thus, where a director converts for his own use funds or property
"SEC. 144. Violations of the Code. - Violations of any of the provisions
belonging to the corporation, or accepts material benefits for exercising
of this Code or its amendments not otherwise specifically penalized
his powers in favor of someone seeking to do business with the
therein shall be punished by a fine of not less than one thousand
corporation, no court will allow him to keep the profit he derives from his
(P1,000.00) pesos but not more than ten thousand (P10,000.00) pesos
wrongdoing. In many other cases, however, the line of demarcation
or by imprisonment for not less than thirty (30) days but not more than
between the fiduciary relationship and a director's personal right is not
five (5) years, or both, in the discretion of the court. If the violation is
easy to define. The Code has attempted at least to lay down general
committed by a corporation, the same may, after notice and hearing, be
rules of conduct and although these serve as guidelines for directors to
dissolved in appropriate proceedings before the Securities and
follow, the determination as to whether in a given case the duty of loyalty
Exchange Commission; Provided, That such dissolution shall not
has been violated has ultimately to be decided by the court on the case's
preclude the institution of appropriate action against the director, trustee
own merits." x x x.
or officer of the corporation responsible for the said violation; Provided,
Prescinding from the above, We agree with the Secretary of Justice that further, That nothing in this section shall be construed to repeal the other
the acts complained of in this case establish a prima facie case for causes for dissolution of a corporation provided in this Code." x x x.
We find it apropos to quote Sections 45 and 46 of Republic Act No. 8189 j) Violation of any of the provisions of this Act.
here:
SECTION 46. Penalties. - Any person found guilty of any Election
offense under this A.ct shall be punished with imprisonment of not less
SECTION 45. Election Offense. - The following shall be considered
than one (1) year but nor more than six (6) years and shall not be subject
election offenses under this Act:
to probation. In addition, the guilty party shall be sentenced to suffer
disqualification to hold public office and deprivation of the right of
a) to deliver, hand over, entrust or give, directly or indirectly, his voter's
suffrage. If he is a foreigner, he shall be deported after the prison term
identification card to another in consideration of money or other benefit
has been served. Any political party found guilty shall be sentenced to
or promise; or take or accept such voter's identification card, directly or
pay a fine of not less than One hundred thousand pesos (P100,000) but
indirectly, by giving or causing the giving of money or other benefit or
not more than Five hundred thousand pesos (P500,000).
making or causing the making of a promise therefor;
The crux of the Court's ruling in Romualdez is that, from the wording of
b) to fail, without cause, to post or give any of the notices or to make any Section 450), there is a clear legislative intent to treat as an election
of the reports required under this Act; offense any violation of the provisions of Republic Act No. 8189. For this
reason, we do not doubt that Section 46 contemplates the term "penalty"
c) to issue or cause the issuance of a voter's identification number to primarily in the criminal law or punitive concept of the term.
cancel or cause the cancellation thereof in violation of the provisions of
this Act; or to refuse the issuance of registered voters their voter's There is no provision in the Corporation Code using similarly emphatic
identification card; language that evinces a categorical legislative intent to treat as a
criminal offense each and every violation of that law. Consequently,
d) to accept an appointment, to assume office and to actually serve as there is no compelling reason for the Court to construe Section 144 as
a member of the Election Registration Board although ineligible thereto; similarly employing the term "penalized" or "penalty" solely in terms of
to appoint such ineligible person knowing him to be ineligible; criminal liability.
e) to interfere with, impede, abscond for purposes of gain or to prevent In People v. Temporada,[56] we held that in interpreting penal laws,
the installation or use of computers and devices and the processing, "words are given their ordinary meaning and that any reasonable doubt
storage, generation and transmission of registration data or information; about the meaning is decided in favor of anyone subjected to a criminal
statute." Black's Law Dictionary recognizes the numerous conceptions
f) to gain, cause access to, use, alter, destroy, or disclose any computer of the term penalty and discusses in part that it is "[a]n elastic term with
data, program, system software, network, or any computer related many different shades of meaning; it involves idea of
devices, facilities, hardware or equipment, whether classified or punishment, corporeal or pecuniary, or civil or criminal, although its
declassified; meaning is generally confined to pecuniary
punishment."[57]Persuasively, in Smith v. Doe,[58] the U.S. Supreme
Court, interpreting a statutory provision that covers both punitive and writing and file the same with the corporate secretary, shall be solidarily
non-punitive provisions, held that: liable with the stockholder concerned to the corporation and its creditors
for the difference between the fair value received at the time of issuance
of the stock and the par or issued value of the same.
The location and labels of a statutory provision do not by themselves
transform a civil remedy into a criminal one. In 89 Firearms, the Court
SECTION 66. Interest on unpaid subscriptions. - Subscribers for stock
held a forfeiture provision to be a civil sanction even though the
shall pay to the corporation interest on all unpaid subscriptions from the
authorizing statute was in the criminal code. The Court rejected the
date of subscription, if so required by, and at the rate of interest fixed in,
argument that the placement demonstrated Congress' "intention to
the by-laws. If no rate of interest is fixed in the bylaws, such rate shall
create an additional criminal sanction," observing that "both criminal and
be deemed to be the legal rate.
civil sanctions may be labeled 'penalties.'" (Emphasis supplied.)
Giving a broad and flexible interpretation to the term "penalized" in SECTION 67. Payment of balance of subscription. - Subject to the
Section 144 only has utility if there are provisions in the Corporation provisions of the contract of subscription, the board of directors of any
Code that specify consequences other than "penal" or "criminal" for stock corporation may at any time declare due and payable to the
violation of, or non-compliance with, the tenets of the Code. Petitioners corporation unpaid subscriptions to the capital stock and may collect the
point to the civil liability prescribed in Sections 31 and 34. Aside from same or such percentage of said unpaid subscriptions, in either case
Sections 31 and 34, we consider these provisions of interest: with interest accrued, if any, as it may deem necessary.
Section 22 imposes the penalty of involuntary dissolution for non-use of MR. LEGASPI. x x x.
corporate charter. The rest of the above-quoted provisions, like Sections
31 and 34, provide for civil or pecuniary liabilities for the acts covered In Section 31 page 22, it seems that the proviso is to make the directors
therein but what is significant is the fact that, of all these provisions that or the trustees who willfully and knowingly vote for or assent to patently
provide for consequences other than penal, only Section 74 expressly unlawful act or guilty of gross negligence or bad faith in directing the
states that a violation thereof is likewise considered an offense under affairs of the corporation would be solidarity liable with the
Section 144. If respondent and the Court of Appeals are correct, that officers concerned.
Section 144 automatically imposes penal sanctions on violations of
provisions for which no criminal penalty was imposed, then such Now, would this, Your Honor, not discourage the serving of competent
language in Section 74 defining a violation thereof as an offense would people as members of the Board of Directors, considering that they
have been superfluous. There would be no need for legislators to clarify might feel that in the event things would do badly against the
that, aside from civil liability, violators of Section 74 are exposed to corporation, they might be held liable personally for acts which should
criminal liability as well. We agree with petitioners that the lack of specific be attributed only to the corporation?
language imposing criminal liability in Sections 31 and 34 shows
legislative intent to limit the consequences of their violation to the civil MR. MENDOZA. Your Honor will note that the directors or trustees who
are held liable must be proven to have acted willfully and knowingly, or On Section 34
if not willfully and knowingly, it must be proven that they acted with gross
negligence or bad faith. It must also be demonstrated that the acts done
(Period of Sponsorship, November 5, 1979 Session)
were patently unlawful. So, the requirement for liability is somewhat
serious to the point of, in my opinion, being extreme. It will be noted that
MR. NUEZ. x x x
this provision does not merely require assenting to patently unlawful
acts. It does not merely require being negligent. The provision requires
May I go now to page 24, Section 34.
that they assent to patently unlawful acts willfully and with knowledge of
the illegality of the act.
"Disloyalty of a Director - Where a director by virtue of his office acquires
for himself a business opportunity which should belong to the
Now, it might be true, as Your Honor suggested, that some persons will
corporation thereby obtaining profits to the prejudice of the corporation,
be discouraged or disinclined to agree to serve the Board of Directors
he must account to the latter for all such profits, unless his act has been
because of this liability. But at the same time this provision - Section 31
ratified by a vote of the stockholders owning or representing at least two
- is really no more than a consequence of the requirement that the
thirds (2/3) of the outstanding capital stock. This provision shall be
position of membership in the Board of Directors is a position of high
applicable notwithstanding the fact that the director risked his own funds
responsibility and great trust. Unless a provision such as this is included,
in the venture."
then that requirement of responsibility and trust will not be as meaningful
as it should be. For after all, directors may take the attitude that unless
My question, Your Honor, is: is this not the so-called corporate
they themselves commit the act, they would not be liable. But the
opportunity doctrine found in the American jurisprudence?
responsibility of a director is not merely to act properly. The responsibility
of a director is to assure that the Board of Directors, which means his
MR. MENDOZA. Yes, Mr. Speaker, as I stated many of the changes that
colleagues acting together, docs not act in a manner that is unlawful or
have been incorporated in the Code were drawn from jurisprudence on
to the prejudice of the corporation because of personal or pecuniary
the matter, but even jurisprudence on several matters or several issues
interest of the directors.[60] (Emphases supplied.)
relating to the Corporation Code are sometimes ambiguous, sometimes
controversial. In order, therefore, to clarify those issues, what was done
(Period of Amendments, March 11, 1980 Session)
was to spell out in statutory language the rule that should be applied on
those matters and one of such examples is Section 34.
MR. MILLORA. On line 16, Section 31, referring to the phrase "patently
unlawful acts." Before I introduce my proposed amendment to delete the
MR. NUEZ. Does not His Honor believe that to codify this particular
word "patently'' is there a reason for placing this adjective before the
document into law may lead to absurdity or confusion as the cited
word "unlawful", Your Honor?
doctrine is subject to many qualifications depending on the peculiar
nature of the case?
MR. ABELLO. Probably the one who prepared this original draft of
Cabinet Bill No. 3 wanted to make sure that a director or trustee is not
Let us suppose that there is a business opportunity that the corporation
[made] liable for an act that is not clearly unlawful, so he used a better
did not take advantage of or was not interested in. Would you hold the
word than "clearly," he used the word "patently."
director responsible for acquiring the interest despite the fact that the
corporation did not take advantage of or was not interested in that
MR. MILLORA. So, in that case, Your Honor, a director may not be liable
particular business venture? Does not His Honor believe that this should
for certain unlawful acts. Is that right, Your Honor?
be subject to qualifications and should be dealt with on a case-to-case
basis depending on the circumstances of the case?
MR. ABELLO. Yes, if it is not patently unlawful. Precisely, the use of the
word "patently" is also to give some kind of protection to the directors or
MR. MENDOZA. If a director is prudent or wise enough, then he can
trustees. Because if you will hold the directors or trustees responsible
protect himself in such contingency. If he is aware of a business
for everything, then no one will serve as director or trustee of any
opportunity, he can make it known to the corporation, propose it to the
corporation. But, he is made liable so long as he willfully and knowingly
corporation, and allow the corporation to reject it, after which he,
votes for or assent to patently unlawful acts of the corporation. So it is
certainly, may avail of it without risk of the consequences provided for in
also to protect the director [or] trustees from liability for acts that was not
Section 34.
patently unlawful.
MR. NUEZ. I see. So that the position of Your Honor is that the matter
MR. MILLORA. With that explanation, Your Honor, I will not proceed with
should be communicated to the corporation, the matter of the director
my proposed amendment.[61]
acquiring the business opportunity should be communicated to the
corporation and that if it is not communicated to the corporation, the that may arise out of this particular provision. My question is: how can
director will be responsible. Is that the position of His Honor? we remedy the situation? Is there a necessity, Your Honor, of a formal
notice to the corporation that it should be placed in the agenda, in a
MR. MENDOZA. In my opinion it must not only be made known to the meeting or a special or regular meeting of the corporation that such a
corporation; the corporation must be formally advised and if he really business venture exists, that the corporation should take advantage of
would like to be assured that he is protected against the consequences this business venture before a director can be held not responsible for
provided for in Section 34, he should take such steps whereby the acquiring this business venture?
opportunity is clearly presented to the corporation and the corporation
has the opportunity to decide on whether to avail of it or not and then let MR. MENDOZA. Well, I believe, as I have stated, Mr. Speaker, that is
the corporation reject it, after which then he may avail of it. Under such what a prudent director should do. If he does not wish to be in any way
circumstances I do not believe he would expose himself to the handicapped in availing of business opportunities, he should, to the
consequences provided for under Section 34. same degree, be circumspect in accepting directorships in corporations.
If he wants to be completely free to avail of any opportunity which may
Precisely, the reason we have laid down this ruling in statutory language come his way, he should not accept the position of director in any
is that for as long as the rule is not clarified there will be ambiguity in the corporation which he may anticipate may be dealing in a business in
matter. And directors of corporations who may acquire knowledge of connection with which he may acquire a certain interest.
such opportunities would always be risking consequences not knowing
how the courts will later on decide such issues. But now with the The purpose of all these provisions is to assure that directors or
statutory rule, any director who comes to know of an opportunity that corporations constantly - not only constantly remember but actually are
may be available to the corporation would be aware of the imposed with certain positive obligations that at least would assure that
consequences in case he avails of that opportunity without giving the they will discharge their responsibilities with utmost fidelity.[62]
corporation the privilege of deciding beforehand on whether to take
advantage of it or not. (December 5, 1979 Session)
MR. NUEZ. Let us take the case of a corporation where, from all MR. CAMARA. Thank you, Your Honor. May we go to page 24, lines 1
indications, the corporation was aware of this business opportunity and to 20, Section 34 - Disloyalty of a director.
despite this fact, Your Honor, and the failure of the director to
communicate the venture to the corporation, the director entered into the Your Honor, it is provided that a director, who by virtue of his office
business venture. Is the director liable, Your Honor, despite the fact that acquires for himself a business opportunity which should belong to the
the corporation has knowledge, Your Honor, from all indications, from corporation thereby obtaining profits to the prejudice of such
all facts, from all circumstances of the case, the corporation is aware? corporation, must account to the corporation for all such profits unless
his act has been ratified by a vote of the stockholders owning or
MR. MENDOZA. First of all, to say that a corporation has knowledge is representing at least two-thirds (2/3) of the outstanding capital stock.
itself a point that can be subject of an argument. When does a
corporation have knowledge - when its president comes to know of the However, Your Honor, the right to ratification would serve to defeat the
fact, when its general manager knows of the fact, when one or two of intention of this pro-vision. This is possible if the director or officer is the
the directors know of that fact, when a majority of the directors come to controlling stockholder.
know of that fact? So that in itself is a matter of great ambiguity, when
one says it has knowledge. It is, therefore, suggested, Your Honor, that the twenty per cent (20%)
stockholding limit be applied here in which case, over twenty per cent
That is why when I said that a prudent director, who would assure that limit, said director or officer is disallowed to participate in the ratification.
he does not become liable under Section 34, should not only be sure And this is precisely the point I was driving at in the previous section,
that the corporation has official knowledge, that is, the Board of Your Honor.
Directors, but must take steps, positive steps, which will demonstrate
that the matter or opportunity was brought before the corporation for its MR. ABELLO. Your Honor, I see the point that Your Honor has raised
decision whether to avail of it or not, and the corporation rejected it. and that wi11 be considered by the committee at an appropriate time.
So, under those circumstances narrated by Your Honor, it is my view MR. CAMARA. Thank you, Your Honor.
that the director will be liable, unless his acts are ratified later by the vote
of stockholders holding at least 2/3 of the outstanding capital stock. Further, under the same provision, it is not clear as to what "account to
the corporation" means or what it includes. Is the offender liable for the
MR. NUEZ. Your Honor has already raised the possible complications profits in favor of the corporation?
legislators intended both civil and penal liabilities to attach to corporate
MR. ABELLO. Yes, that is what it means. officers who violate the same, as was repeatedly stressed in the
excerpts from the legislative record quoted below:
MR. CAMARA. Or he be merely made to accow1t?
On Section 74:
MR. ABELLO. Well, Your Honor, when the law says "He must account
to the latter for all such profits," that means that he is liable to the
(Period of Sponsorship, December 10, 1979 Session)
corporation for such profits.
of his labor" he may best develop his capabilities and will produce and business without first securing a license [under Section 133] is now
supply the economic needs of the nation. given penal sanction which is also applicable to other violations of the
Corporation Code under the general provisions of Section 144 of the
At about 3:00 in the afternoon of May 27, 1986, the defendant came
"The testimony of the plaintiff disclosed that he is an Iranian national. He
back again to plaintiff's house and directly proceeded to the latter's
came to the Philippines to study in the University of the Philippines in
bedroom, where the latter and his countryman, Abbas Torabian, were
1974. In 1976, under the regime of the Shah of Iran, he was appointed
playing chess. Plaintiff opened his safe in the bedroom and obtained
Labor Attach for the Iranian Embassies in Tokyo, Japan and Manila,
$2,000.00 from it, gave it to the defendant for the latter's fee in obtaining
Philippines. When the Shah of Iran was deposed by Ayatollah Khomeini,
a visa for plaintiff's wife. The defendant told him that he would be leaving
plaintiff became a refugee of the United Nations and continued to stay
the Philippines very soon and requested him to come out of the house
in the Philippines. He headed the Iranian National Resistance
for a while so that he can introduce him to his cousin waiting in a
Movement in the Philippines.
cab. Without much ado, and without putting on his shirt as he was only
He came to know the defendant on May 13, 1986, when the latter was in his pajama pants, he followed the defendant where he saw a parked
brought to his house and introduced to him by a certain Jose Iigo, an cab opposite the street. To his complete surprise, an American jumped
informer of the Intelligence Unit of the military. Jose Iigo, on the other out of the cab with a drawn high-powered gun. He was in the company
hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer of about 30 to 40 Filipino soldiers with 6 Americans, all armed.He was
for several Iranians whom plaintiff assisted as head of the anti-Khomeini handcuffed and after about 20 minutes in the street, he was brought
movement in the Philippines. inside the house by the defendant. He was made to sit down while in
handcuffs while the defendant was inside his bedroom. The defendant
During his first meeting with the defendant on May 13, 1986, upon the
came out of the bedroom and out from defendant's attach case, he took
introduction of Jose Iigo, the defendant expressed his interest in buying
something and placed it on the table in front of the plaintiff. They also
caviar. As a matter of fact, he bought two kilos of caviar from plaintiff and
took plaintiff's wife who was at that time at the boutique near his house
paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets,
and likewise arrested Torabian, who was playing chess with him in the
pistachio nuts and other Iranian products was his business after the
bedroom and both were handcuffed together. Plaintiff was not told why
Khomeini government cut his pension of over $3,000.00 per
he was being handcuffed and why the privacy of his house, especially
month. During their introduction in that meeting, the defendant gave the
his bedroom was invaded by defendant. He was not allowed to use the
plaintiff his calling card, which showed that he is working at the US
telephone. In fact, his telephone was unplugged. He asked for any
Embassy in the Philippines, as a special agent of the Drug Enforcement
warrant, but the defendant told him to `shut up. He was nevertheless
Administration, Department of Justice, of the United States, and gave
told that he would be able to call for his lawyer who can defend him.
The plaintiff took note of the fact that when the defendant invited him to No. 1-88; in any event, the Court added, Scalzo had failed to show that
come out to meet his cousin, his safe was opened where he kept the appellate court was in error in its questioned judgment.
the $24,000.00 the defendant paid for the carpets and another
Meanwhile, at the court a quo, an order, dated 09 February 1990, was
$8,000.00 which he also placed in the safe together with a bracelet worth
issued (a) declaring Scalzo in default for his failure to file a responsive
$15,000.00 and a pair of earrings worth $10,000.00. He also discovered
pleading (answer) and (b) setting the case for the reception of
missing upon his release his 8 pieces hand-made Persian carpets,
evidence. On 12 March 1990, Scalzo filed a motion to set aside the order
valued at $65,000.00, a painting he bought for P30,000.00 together with
of default and to admit his answer to the complaint. Granting the motion,
his TV and betamax sets. He claimed that when he was handcuffed, the
the trial court set the case for pre-trial. In his answer, Scalzo denied the
defendant took his keys from his wallet. There was, therefore, nothing
material allegations of the complaint and raised the affirmative defenses
left in his house.
(a) of Minuchers failure to state a cause of action in his complaint and
That his arrest as a heroin trafficker x x x had been well publicized (b) that Scalzo had acted in the discharge of his official duties as being
throughout the world, in various newspapers, particularly in Australia, merely an agent of the Drug Enforcement Administration of the United
America, Central Asia and in the Philippines. He was identified in the States Department of Justice. Scalzo interposed a counterclaim of
papers as an international drug trafficker. x x x P100,000.00 to answer for attorneys' fees and expenses of litigation.
In fact, the arrest of defendant and Torabian was likewise on television, Then, on 14 June 1990, after almost two years since the institution of
not only in the Philippines, but also in America and in Germany. His the civil case, Scalzo filed a motion to dismiss the complaint on the
friends in said places informed him that they saw him on TV with said ground that, being a special agent of the United States Drug
news. Enforcement Administration, he was entitled to diplomatic immunity. He
attached to his motion Diplomatic Note No. 414 of the United States
After the arrest made on plaintiff and Torabian, they were brought to
Embassy, dated 29 May 1990, addressed to the Department of Foreign
Camp Crame handcuffed together, where they were detained for three
Affairs of the Philippines and a Certification, dated 11 June 1990, of Vice
days without food and water."[1]
Consul Donna Woodward, certifying that the note is a true and faithful
During the trial, the law firm of Luna, Sison and Manas, filed a special copy of its original. In an order of 25 June 1990, the trial court denied
appearance for Scalzo and moved for extension of time to file an answer the motion to dismiss.
pending a supposed advice from the United States Department of State
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with
and Department of Justice on the defenses to be raised.The trial court
this Court, docketed G.R. No. 94257 and entitled "Arthur W. Scalzo, Jr.,
granted the motion. On 27 October 1988, Scalzo filed another special
vs. Hon. Wenceslao Polo, et al.," asking that the complaint in Civil Case
appearance to quash the summons on the ground that he, not being a
No. 88-45691 be ordered dismissed. The case was referred to the Court
resident of the Philippines and the action being one in personam, was
of Appeals, there docketed CA-G.R. SP No. 22505, per this Courts
beyond the processes of the court. The motion was denied by the court,
resolution of 07 August 1990. On 31 October 1990, the Court of Appeals
in its order of 13 December 1988, holding that the filing by Scalzo of a
promulgated its decision sustaining the diplomatic immunity of Scalzo
motion for extension of time to file an answer to the complaint was a
and ordering the dismissal of the complaint against him. Minucher filed
voluntary appearance equivalent to service of summons which could
a petition for review with this Court, docketed G.R. No. 97765 and
likewise be construed a waiver of the requirement of formal
entitled "Khosrow Minucher vs. the Honorable Court of Appeals, et. al.
notice. Scalzo filed a motion for reconsideration of the court order,
(cited in 214 SCRA 242), appealing the judgment of the Court of
contending that a motion for an extension of time to file an answer was
Appeals. In a decision, dated 24 September 1992, penned by Justice
not a voluntary appearance equivalent to service of summons since it
(now Chief Justice) Hilario Davide, Jr., this Court reversed the decision
did not seek an affirmative relief. Scalzo argued that in cases involving
of the appellate court and remanded the case to the lower court for
the United States government, as well as its agencies and officials, a
trial. The remand was ordered on the theses (a) that the Court of
motion for extension was peculiarly unavoidable due to the need (1) for
Appeals erred in granting the motion to dismiss of Scalzo for lack of
both the Department of State and the Department of Justice to agree on
jurisdiction over his person without even considering the issue of the
the defenses to be raised and (2) to refer the case to a Philippine lawyer
authenticity of Diplomatic Note No. 414 and (b) that the complaint
who would be expected to first review the case. The court a quo denied
contained sufficient allegations to the effect that Scalzo committed the
the motion for reconsideration in its order of 15 October 1989.
imputed acts in his personal capacity and outside the scope of his official
Scalzo filed a petition for review with the Court of Appeals, there duties and, absent any evidence to the contrary, the issue on Scalzos
docketed CA-G.R. No. 17023, assailing the denial. In a decision, dated diplomatic immunity could not be taken up.
06 October 1989, the appellate court denied the petition and affirmed
The Manila RTC thus continued with its hearings on the case. On 17
the ruling of the trial court. Scalzo then elevated the incident in a petition
November 1995, the trial court reached a decision; it adjudged:
for review on certiorari, docketed G.R. No. 91173, to this Court. The
petition, however, was denied for its failure to comply with SC Circular
WHEREFORE, and in view of all the foregoing considerations, judgment Scalzo contends that the Vienna Convention on Diplomatic Relations, to
is hereby rendered for the plaintiff, who successfully established his which the Philippines is a signatory, grants him absolute immunity from
claim by sufficient evidence, against the defendant in the manner suit, describing his functions as an agent of the United States Drugs
following: Enforcement Agency as conducting surveillance operations on
suspected drug dealers in the Philippines believed to be the source of
"`Adjudging defendant liable to plaintiff in actual and compensatory
prohibited drugs being shipped to the U.S., (and) having ascertained the
damages of P520,000.00; moral damages in the sum of P10 million;
target, (he then) would inform the Philippine narcotic agents (to) make
exemplary damages in the sum of P100,000.00; attorney's fees in the
the actual arrest." Scalzo has submitted to the trial court a number of
sum of P200,000.00 plus costs.
documents -
`The Clerk of the Regional Trial Court, Manila, is ordered to take note of
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;
the lien of the Court on this judgment to answer for the unpaid docket
fees considering that the plaintiff in this case instituted this action as a 2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11
pauper litigant."[2] June 1990;
While the trial court gave credence to the claim of Scalzo and the 3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;
evidence presented by him that he was a diplomatic agent entitled to
4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and
immunity as such, it ruled that he, nevertheless, should be held
accountable for the acts complained of committed outside his official 5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.
duties.On appeal, the Court of Appeals reversed the decision of the trial
court and sustained the defense of Scalzo that he was sufficiently 6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser,
clothed with diplomatic immunity during his term of duty and thereby Department of Foreign Affairs, dated 27 June 1990 forwarding Embassy
immune from the criminal and civil jurisdiction of the Receiving State Note No. 414 to the Clerk of Court of RTC Manila, Branch 19 (the trial
Hence, this recourse by Minucher. The instant petition for review raises 7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement
a two-fold issue: (1) whether or not the doctrine of conclusiveness of (Exh. '3'); and
"It may be mentioned in this regard that private respondent himself, in status of Scalzo, formally advised the Judicial Department of his
his Pre-trial Brief filed on 13 June 1990, unequivocally states that he diplomatic status and his entitlement to all diplomatic privileges and
would present documentary evidence consisting of DEA records on his immunities under the Vienna Convention; and (2) the Department of
investigation and surveillance of plaintiff and on his position and duties Foreign Affairs itself authenticated Diplomatic Note No. 414. Scalzo
as DEA special agent in Manila. Having thus reserved his right to additionally presented Exhibits "9" to "13" consisting of his reports of
present evidence in support of his position, which is the basis for the investigation on the surveillance and subsequent arrest of Minucher, the
alleged diplomatic immunity, the barren self-serving claim in the belated certification of the Drug Enforcement Administration of the United States
motion to dismiss cannot be relied upon for a reasonable, intelligent and Department of Justice that Scalzo was a special agent assigned to the
fair resolution of the issue of diplomatic immunity."[4] Philippines at all times relevant to the complaint, and the special power
of attorney executed by him in favor of his previous counsel[6] to show
(a) that the United States Embassy, affirmed by its Vice Consul, applied. Only "diplomatic agents," under the terms of the Convention,
acknowledged Scalzo to be a member of the diplomatic staff of the are vested with blanket diplomatic immunity from civil and criminal
United States diplomatic mission from his arrival in the Philippines on 14 suits. The Convention defines "diplomatic agents" as the heads of
October 1985 until his departure on 10 August 1988, (b) that, on May missions or members of the diplomatic staff, thus impliedly withholding
1986, with the cooperation of the Philippine law enforcement officials the same privileges from all others. It might bear stressing that even
and in the exercise of his functions as member of the mission, he consuls, who represent their respective states in concerns of commerce
investigated Minucher for alleged trafficking in a prohibited drug, and (c) and navigation and perform certain administrative and notarial duties,
that the Philippine Department of Foreign Affairs itself recognized that such as the issuance of passports and visas, authentication of
Scalzo during his tour of duty in the Philippines (14 October 1985 up to documents, and administration of oaths, do not ordinarily enjoy the
10 August 1988) was listed as being an Assistant Attach of the United traditional diplomatic immunities and privileges accorded diplomats,
States diplomatic mission and accredited with diplomatic status by the mainly for the reason that they are not charged with the duty of
Government of the Philippines. In his Exhibit 12, Scalzo described the representing their states in political matters. Indeed, the main yardstick
functions of the overseas office of the United States Drugs Enforcement in ascertaining whether a person is a diplomat entitled to immunity is the
Agency, i.e., (1) to provide criminal investigative expertise and determination of whether or not he performs duties of diplomatic nature.
assistance to foreign law enforcement agencies on narcotic and drug
Scalzo asserted, particularly in his Exhibits 9 to 13, that he was an
control programs upon the request of the host country, 2) to establish
Assistant Attach of the United States diplomatic mission and was
and maintain liaison with the host country and counterpart foreign law
accredited as such by the Philippine Government. An attach belongs to
enforcement officials, and 3) to conduct complex criminal investigations
a category of officers in the diplomatic establishment who may be in
involving international criminal conspiracies which affect the interests of
charge of its cultural, press, administrative or financial affairs. There
the United States.
could also be a class of attaches belonging to certain ministries or
The Vienna Convention on Diplomatic Relations was a codification of departments of the government, other than the foreign ministry or
centuries-old customary law and, by the time of its ratification on 18 April department, who are detailed by their respective ministries or
1961, its rules of law had long become stable. Among the city states of departments with the embassies such as the military, naval, air,
ancient Greece, among the peoples of the Mediterranean before the commercial, agricultural, labor, science, and customs attaches, or the
establishment of the Roman Empire, and among the states of India, the like.Attaches assist a chief of mission in his duties and are
person of the herald in time of war and the person of the diplomatic administratively under him, but their main function is to observe, analyze
envoy in time of peace were universally held sacrosanct.[7] By the end and interpret trends and developments in their respective fields in the
of the 16th century, when the earliest treatises on diplomatic law were host country and submit reports to their own ministries or departments
published, the inviolability of ambassadors was firmly established as a in the home government.[14] These officials are not generally regarded
rule of customary international law.[8]Traditionally, the exercise of as members of the diplomatic mission, nor are they normally designated
diplomatic intercourse among states was undertaken by the head of as having diplomatic rank.
state himself, as being the preeminent embodiment of the state he
In an attempt to prove his diplomatic status, Scalzo presented
represented, and the foreign secretary, the official usually entrusted with
Diplomatic Notes Nos. 414, 757 and 791, all issued post litem
the external affairs of the state. Where a state would wish to have a more
motam, respectively, on 29 May 1990, 25 October 1991 and 17
prominent diplomatic presence in the receiving state, it would then send
November 1992. The presentation did nothing much to alleviate the
to the latter a diplomatic mission.Conformably with the Vienna
Court's initial reservations in G.R. No. 97765, viz:
Convention, the functions of the diplomatic mission involve, by and
large, the representation of the interests of the sending state and "While the trial court denied the motion to dismiss, the public respondent
promoting friendly relations with the receiving state.[9] gravely abused its discretion in dismissing Civil Case No. 88-45691 on
the basis of an erroneous assumption that simply because of the
The Convention lists the classes of heads of diplomatic missions to
diplomatic note, the private respondent is clothed with diplomatic
include (a) ambassadors or nuncios accredited to the heads of
immunity, thereby divesting the trial court of jurisdiction over his person.
state,[10] (b) envoys,[11] ministers or internuncios accredited to the
heads of states; and (c) charges d' affairs[12] accredited to the ministers xxxxxxxxx
of foreign affairs.[13] Comprising the "staff of the (diplomatic) mission"
are the diplomatic staff, the administrative staff and the technical and And now, to the core issue - the alleged diplomatic immunity of the
service staff. Only the heads of missions, as well as members of the private respondent. Setting aside for the moment the issue of
diplomatic staff, excluding the members of the administrative, technical authenticity raised by the petitioner and the doubts that surround such
and service staff of the mission, are accorded diplomatic rank. Even claim, in view of the fact that it took private respondent one (1) year,
while the Vienna Convention on Diplomatic Relations provides for eight (8) months and seventeen (17) days from the time his counsel filed
immunity to the members of diplomatic missions, it does so, on 12 September 1988 a Special Appearance and Motion asking for a
nevertheless, with an understanding that the same be restrictively first extension of time to file the Answer because the Departments of
State and Justice of the United States of America were studying the case would then assign each individual to the appropriate functional
for the purpose of determining his defenses, before he could secure the category.[19]
Diplomatic Note from the US Embassy in Manila, and even granting for
But while the diplomatic immunity of Scalzo might thus remain
the sake of argument that such note is authentic, the complaint for
contentious, it was sufficiently established that, indeed, he worked for
damages filed by petitioner cannot be peremptorily dismissed.
the United States Drug Enforcement Agency and was tasked to conduct
xxxxxxxxx surveillance of suspected drug activities within the country on the dates
pertinent to this case. If it should be ascertained that Arthur Scalzo was
"There is of course the claim of private respondent that the acts imputed
acting well within his assigned functions when he committed the acts
to him were done in his official capacity. Nothing supports this self-
alleged in the complaint, the present controversy could then be resolved
serving claim other than the so-called Diplomatic Note. x x x. The public
under the related doctrine of State Immunity from Suit.
respondent then should have sustained the trial court's denial of the
motion to dismiss. Verily, it should have been the most proper and The precept that a State cannot be sued in the courts of a foreign state is
appropriate recourse. It should not have been overwhelmed by the self- a long-standing rule of customary international law then closely
serving Diplomatic Note whose belated issuance is even suspect and identified with the personal immunity of a foreign sovereign from
whose authenticity has not yet been proved. The undue haste with which suit[20] and, with the emergence of democratic states, made to attach
respondent Court yielded to the private respondent's claim is arbitrary." not just to the person of the head of state, or his representative, but also
distinctly to the state itself in its sovereign capacity.[21] If the acts giving
A significant document would appear to be Exhibit No. 08, dated 08
rise to a suit are those of a foreign government done by its foreign agent,
November 1992, issued by the Office of Protocol of the Department of
although not necessarily a diplomatic personage, but acting in his official
Foreign Affairs and signed by Emmanuel C. Fernandez, Assistant
capacity, the complaint could be barred by the immunity of the foreign
Secretary, certifying that "the records of the Department (would) show
sovereign from suit without its consent. Suing a representative of a state
that Mr. Arthur W. Scalzo, Jr., during his term of office in the Philippines
is believed to be, in effect, suing the state itself. The proscription is not
(from 14 October 1985 up to 10 August 1988) was listed as an Assistant
accorded for the benefit of an individual but for the State, in whose
Attach of the United States diplomatic mission and was, therefore,
service he is, under the maxim - par in parem, non habet imperium
accredited diplomatic status by the Government of the Philippines." No
- that all states are sovereign equals and cannot assert jurisdiction over
certified true copy of such "records," the supposed bases for the belated
one another.[22] The implication, in broad terms, is that if the judgment
issuance, was presented in evidence.
against an official would require the state itself to perform an affirmative
Concededly, vesting a person with diplomatic immunity is a prerogative act to satisfy the award, such as the appropriation of the amount needed
of the executive branch of the government. In World Health to pay the damages decreed against him, the suit must be regarded as
Organization vs. Aquino,[15] the Court has recognized that, in such being against the state itself, although it has not been formally
matters, the hands of the courts are virtually tied. Amidst apprehensions impleaded.[23]
of indiscriminate and incautious grant of immunity, designed to gain
In United States of America vs. Guinto,[24] involving officers of the
exemption from the jurisdiction of courts, it should behoove the
United States Air Force and special officers of the Air Force Office of
Philippine government, specifically its Department of Foreign Affairs, to
Special Investigators charged with the duty of preventing the
be most circumspect, that should particularly be no less than compelling,
distribution, possession and use of prohibited drugs, this Court has ruled
in its post litem motam issuances. It might be recalled that the privilege
-
is not an immunity from the observance of the law of the territorial
sovereign or from ensuing legal liability; it is, rather, an immunity from "While the doctrine (of state immunity) appears to prohibit only suits
the exercise of territorial jurisdiction.[16] The government of the United against the state without its consent, it is also applicable to complaints
States itself, which Scalzo claims to be acting for, has formulated its filed against officials of the state for acts allegedly performed by them in
standards for recognition of a diplomatic agent. The State Department the discharge of their duties. x x x. It cannot for a moment be imagined
policy is to only concede diplomatic status to a person who possesses that they were acting in their private or unofficial capacity when they
an acknowledged diplomatic title and performs duties of diplomatic apprehended and later testified against the complainant. It follows that
nature.[17] Supplementary criteria for accreditation are the possession for discharging their duties as agents of the United States, they cannot
of a valid diplomatic passport or, from States which do not issue such be directly impleaded for acts imputable to their principal, which has not
passports, a diplomatic note formally representing the intention to assign given its consent to be sued. x x x As they have acted on behalf of the
the person to diplomatic duties, the holding of a non-immigrant visa, government, and within the scope of their authority, it is that government,
being over twenty-one years of age, and performing diplomatic functions and not the petitioners personally, [who were] responsible for their
on an essentially full-time basis.[18]Diplomatic missions are requested acts."[25]
to provide the most accurate and descriptive job title to that which
This immunity principle, however, has its limitations. Thus, Shauf vs.
currently applies to the duties performed. The Office of the Protocol
Court of Appeals[26] elaborates:
It is a different matter where the public official is made to account in his consent, to the activities within Philippine territory of agent Scalzo of the
capacity as such for acts contrary to law and injurious to the rights of the United States Drug Enforcement Agency. The job description of Scalzo
plaintiff. As was clearly set forth by Justice Zaldivar in Director of the has tasked him to conduct surveillance on suspected drug suppliers and,
Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA after having ascertained the target, to inform local law enforcers who
368): `Inasmuch as the State authorizes only legal acts by its officers, would then be expected to make the arrest. In conducting surveillance
unauthorized acts of government officials or officers are not acts of the activities on Minucher, later acting as the poseur-buyer during the buy-
State, and an action against the officials or officers by one whose rights bust operation, and then becoming a principal witness in the criminal
have been invaded or violated by such acts, for the protection of his case against Minucher, Scalzo hardly can be said to have acted beyond
rights, is not a suit against the State within the rule of immunity of the the scope of his official function or duties.
State from suit. In the same tenor, it has been said that an action at law
All told, this Court is constrained to rule that respondent Arthur Scalzo,
or suit in equity against a State officer or the director of a State
an agent of the United States Drug Enforcement Agency allowed by the
department on the ground that, while claiming to act for the State, he
Philippine government to conduct activities in the country to help contain
violates or invades the personal and property rights of the plaintiff, under
the problem on the drug traffic, is entitled to the defense of state
an unconstitutional act or under an assumption of authority which he
immunity from suit.
does not have, is not a suit against the State within the constitutional
provision that the State may not be sued without its consent. The WHEREFORE, on the foregoing premises, the petition is DENIED. No
rationale for this ruling is that the doctrine of state immunity cannot be costs.
used as an instrument for perpetrating an injustice.
SO ORDERED.
xxxxxxxxx
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ.,
(T)he doctrine of immunity from suit will not apply and may not be concur
invoked where the public official is being sued in his private and personal
capacity as an ordinary citizen. The cloak of protection afforded the
officers and agents of the government is removed the moment they are
sued in their individual capacity. This situation usually arises where the
public official acts without authority or in excess of the powers vested in
him. It is a well-settled principle of law that a public official may be liable
in his personal private capacity for whatever damage he may have
caused by his act done with malice and in bad faith or beyond the scope
of his authority and jurisdiction.[27]
[G.R. No. 125865. January 28, 2000] them in their official capacity except when the Bank waives the
immunity."
JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
the immunity mentioned therein is not absolute, but subject to the
DECISION exception that the act was done in "official capacity." It is therefore
YNARES-SANTIAGO, J.: necessary to determine if petitioners case falls within the ambit of
Section 45(a). Thus, the prosecution should have been given the chance
Petitioner is an economist working with the Asian Development Bank
to rebut the DFA protocol and it must be accorded the opportunity to
(ADB). Sometime in 1994, for allegedly uttering defamatory words
present its controverting evidence, should it so desire.
against fellow ADB worker Joyce Cabal, he was charged before the
Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of Third, slandering a person could not possibly be covered by the
grave oral defamation docketed as Criminal Cases Nos. 53170 and immunity agreement because our laws do not allow the commission of
53171. Petitioner was arrested by virtue of a warrant issued by the a crime, such as defamation, in the name of official duty.[3] The
MeTC. After fixing petitioners bail at P2,400.00 per criminal charge, the imputation of theft is ultra vires and cannot be part of official functions. It
MeTC released him to the custody of the Security Officer of ADB. The is well-settled principle of law that a public official may be liable in his
next day, the MeTC judge received an "office of protocol" from the personal private capacity for whatever damage he may have caused by
Department of Foreign Affairs (DFA) stating that petitioner is covered by his act done with malice or in bad faith or beyond the scope of his
immunity from legal process under Section 45 of the Agreement authority or jurisdiction.[4] It appears that even the governments chief
between the ADB and the Philippine Government regarding the legal counsel, the Solicitor General, does not support the stand taken by
Headquarters of the ADB (hereinafter Agreement) in the country. Based petitioner and that of the DFA.
on the said protocol communication that petitioner is immune from suit,
Fourth, under the Vienna Convention on Diplomatic Relations, a
the MeTC judge without notice to the prosecution dismissed the two
diplomatic agent, assuming petitioner is such, enjoys immunity from
criminal cases. The latter filed a motion for reconsideration which was
criminal jurisdiction of the receiving state except in the case of an action
opposed by the DFA. When its motion was denied, the prosecution filed
relating to any professional or commercial activity exercised by the
a petition for certiorariand mandamus with the Regional Trial Court
diplomatic agent in the receiving state outside his official functions.[5] As
(RTC) of Pasig City which set aside the MeTC rulings and ordered the
already mentioned above, the commission of a crime is not part of official
latter court to enforce the warrant of arrest it earlier issued. After the
duty.
motion for reconsideration was denied, petitioner elevated the case to
this Court via a petition for review arguing that he is covered by immunity Finally, on the contention that there was no preliminary investigation
under the Agreement and that no preliminary investigation was held conducted, suffice it to say that preliminary investigation is not a matter
before the criminal cases were filed in court. of right in cases cognizable by the MeTC such as the one at
bar.[6] Being purely a statutory right, preliminary investigation may be
The petition is not impressed with merit.
invoked only when specifically granted by law.[7] The rule on criminal
First, courts cannot blindly adhere and take on its face the procedure is clear that no preliminary investigation is required in cases
communication from the DFA that petitioner is covered by any immunity. falling within the jurisdiction of the MeTC.[8] Besides, the absence of
The DFAs determination that a certain person is covered by immunity is preliminary investigation does not affect the courts jurisdiction nor does
only preliminary which has no binding effect in courts. In receiving ex- it impair the validity of the information or otherwise render it defective.[9]
parte the DFAs advice and in motu proprio dismissing the two criminal
WHEREFORE, the petition is DENIED.
cases without notice to the prosecution, the latters right to due process
was violated. It should be noted that due process is a right of the SO ORDERED.
accused as much as it is of the prosecution. The needed inquiry in what
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ.,
capacity petitioner was acting at the time of the alleged utterances
concur.2/22/00 9:47 AM
requires for its resolution evidentiary basis that has yet to be presented
at the proper time.[1] At any rate, it has been ruled that the mere
invocation of the immunity clause does not ipso facto result in the
dropping of the charges.[2]
"Officers and staff of the Bank including for the purpose of this Article
experts and consultants performing missions for the Bank shall enjoy
the following privileges and immunities:
THIRD DIVISION On March 30, 1991, "M/T Tabangao" returned to the same area and
completed the transfer of cargo to "Navi Pride."
[G.R. No. 111709. August 30, 2001]
On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas, but
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER P.
the vessel remained at sea. On April 10, 1991, the members of the crew
TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, ANDRES C.
were released in three batches with the stern warning not to report the
INFANTE, CHEONG SAN HIONG, and JOHN DOES, accused-
incident to government authorities for a period of two days or until April
appellants.
12, 1991, otherwise they would be killed. The first batch was fetched
DECISION from the shoreline by a newly painted passenger jeep driven by
accused-appellant Cecilio Changco, brother of Emilio Changco, who
MELO, J.: brought them to Imus, Cavite and gave P20,000.00 to Captain Libo-on
for fare of the crew in proceeding to their respective homes. The second
This is one of the older cases which unfortunately has remained in
batch was fetched by accused-appellant Changco at midnight of April
docket of the Court for sometime. It was reassigned, together with other
10, 1991 and were brought to different places in Metro Manila.
similar cases, to undersigned ponente in pursuance of A.M. No. 00-9-
03-SC dated February 27, 2001. On April 12, 1991, the Chief Engineer, accompanied by the members of
the crew, called the PNOC Shipping and Transport Corporation office to
In the evening of March 2, 1991, M/T Tabangao, a cargo vessel owned
report the incident. The crew members were brought to the Coast Guard
by the PNOC Shipping and Transport Corporation, loaded with 2,000
Office for investigation. The incident was also reported to the National
barrels of kerosene, 2,600 barrels of regular gasoline, and 40,000
Bureau of Investigation where the officers and members of the crew
barrels of diesel oil, with a total value of P40,426,793,87. was sailing off
executed sworn statements regarding the incident.
the coast of Mindoro near Silonay Island.
vessel. He was employed at Navi Marine Services, Pte., Ltd. as Port told that that there were food and drinks, including beer, purchased by
Captain. The company was engaged in the business of trading the company for the crew of "M/T Galilee. The transfer took ten hours
petroleum, including shipoil, bunker lube oil, and petroleum to domestic and was completed on March 30, 1991. Paul Gan was paid in full for the
and international markets. It owned four vessels, one of which was "Navi transfer.
Pride."
On April 29 or 30, 1991, Emilio Changco intimated to Hiong that he had
On March 2, 1991, the day before "M/T Tabangao" was seized by Emilio four vessels and wanted to offer its cargo to cargo operators. Hiong was
Changco and his cohorts, Hiong's name was listed in the company's asked to act as a broker or ship agent for the sale of the cargo in
letter to the Mercantile Section of the Maritime Department of the Singapore. Hiong went to the Philippines to discuss the matter with
Singapore government as the radio telephone operator on board the Emilio Changco, who laid out the details of the new transfer, this time
vessel "Ching Ma." with "M/T Polaris" as contact vessel. Hiong was told that the vessel was
scheduled to arrive at the port of Batangas that weekend. After being
The company was then dealing for the first time with Paul Gan, a billeted at Alpha Hotel in Batangas City, where Hiong checked in under
Singaporean broker, who offered to sell to the former bunker oil for the the name "SONNY CSH." A person by the name of "KEVIN OCAMPO,"
amount of 300,000.00 Singapore dollars. After the company paid over who later turned out to be Emilio Changco himself, also checked in at
Alpha Hotel. From accused-appellant Cecilio Changco, Hiong found out Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco
that the vessel was not arriving. Hiong was thereafter arrested by NBI assert that the trial court erred in allowing them to adopt the proceedings
agents. taken during the time they were being represented by Mr. Tomas
Posadas, a non-lawyer, thereby depriving them of their constitutional
After trial, a 95-page decision was rendered convicting accused-
right to procedural due process.
appellants of the crime charged. The dispositive portion of said decision
reads: In this regard, said accused-appellants narrate that Mr. Posadas entered
his appearance as counsel for all of them. However, in the course of the
WHEREFORE, in the light of the foregoing considerations, judgment is
proceedings, or on February 11, 1992, the trial court discovered that Mr.
hereby rendered by this Court finding the accused Roger Tulin, Virgilio
Posadas was not a member of the Philippine Bar. This was after Mr.
Loyola, Andres Infante, Jr. and Cecilio Changco guilty beyond
Posadas had presented and examined seven witnesses for the
reasonable doubt, as principals, of the crime of piracy in Philippine
accused.
Waters defined in Section 2(d) of Presidential Decree No. 532 and the
accused Cheong San Hiong, as accomplice, to said crime. Under Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco
Section 3(a) of the said law, the penalty for the principals of said crime uniformly contend that during the custodial investigation, they were
is mandatory death. However, considering that, under the 1987 subjected to physical violence; were forced to sign statements without
Constitution, the Court cannot impose the death penalty, the accused being given the opportunity to read the contents of the same; were
Roger Tulin, Virgilio Loyola, Andres Infante, ]r., and Cecilio Changco are denied assistance of counsel, and were not informed of their rights, in
hereby each meted the penalty of RECLUSION PERPETUA, with all the violation of their constitutional rights,
accessory penalties of the law. The accused Cheong San Hiong is
Said accused-appellants also argue that the trial court erred in finding
hereby meted the penalty of RECLUSION PERPETUA, pursuant to
that the prosecution proved beyond reasonable doubt that they
Article 52 of the Revised Penal Code in relation to Section 5 of PD 532.
committed the crime of qualified piracy. They allege that the pirates were
The accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio
outnumbered by the crew who totaled 22 and who were not guarded at
Changco are hereby ordered to return to the PNOC Shipping and
all times. The crew, so these accused-appellants conclude, could have
Transport Corporation the "M/T Tabangao" or if the accused can no
overpowered the alleged pirates.
longer return the same, the said accused are hereby ordered to remit,
jointly and severally, to said corporation the value thereof in the amount Cheong San Hiong
of P11,240,000.00 Philippine Currency, with interests thereon, at the
rate of 6% per annum from March 2, 1991 until the said amount is paid In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect
in full. All the accused including Cheong San Hiong are hereby ordered obliterated the crime committed by him; (2) the trial court erred in
to return to the Caltex Philippines, Inc. the cargo of the "M/T Tabangao", declaring that the burden is lodged on him to prove by clear and
or if the accused can no longer return the said cargo to said corporation, convincing evidence that he had no knowledge that Emilio Changco and
all the accused are hereby condemned to pay, jointly and severally, to his cohorts attacked and seized the "M/T Tabangao" and/or that the
the Caltex Refinery, Inc., the value of said cargo in the amount of cargo of the vessel was stolen or the subject of theft or robbery or piracy;
P40,426,793.87, Philippine Currency plus interests until said amount is (3) the trial court erred in finding him guilty as an accomplice to the crime
paid in full. After the accused Cheong San Hiong has served his of qualified piracy under Section 4 of Presidential Decree No. 532 (Anti-
sentence, he shall be deported to Singapore. Piracy and Anti-Robbery Law of 1974); (4) the trial court erred in
convicting and punishing him as an accomplice when the acts allegedly
All the accused shall be credited for the full period of their detention at committed by him were done or executed outside of Philippine waters
the National Bureau of Investigation and the City Jail of Manila during and territory, stripping the Philippine courts of jurisdiction to hold him for
the pendency of this case provided that they agreed in writing to abide trial, to convict, and sentence; (5) the trial court erred in making factual
by and comply strictly with the rules and regulations of the City Jail of conclusions without evidence on record to prove the same and which in
Manila and the National Bureau of Investigation. With costs against all fact are contrary to the evidence adduced during trial; (6) the trial court
the accused. erred in convicting him as an accomplice under Section 4 of Presidential
Decree No. 532 when he was charged as a principal by direct
SO ORDERED.
participation under said decree, thus violating his constitutional right to
(pp. 149-150, Rollo.) be informed of the nature and cause of the accusation against him.
The matter was then elevated to this Court. The arguments of accused- Cheong also posits that the evidence against the other accused-
appellants may be summarized as follows: appellants do not prove any participation on his part in the commission
of the crime of qualified piracy. He further argues that he had not in any
Roger P. Tulin Virgilio Loyola Andres C. Infante Jr., and Cecilio O.
way participated in the seajacking of "M/T Tabangao" and in committing
Changco
the crime of qualified piracy, and that he was not aware that the vessel
and its cargo were pirated.
As legal basis for his appeal, he explains that he was charged under the Accordingly, denial of due process cannot be successfully invoked
information with qualified piracy as principal under Section 2 of where a valid waiver of rights has been made (People vs. Serzo, 274
Presidential Decree No. 532 which refers to Philippine waters. In the SCRA 553 [1997]; Sayson vs. People, 166 SCRA 680 [1988]).
case at bar, he argues that he was convicted for acts done outside
However, we must quickly add that the right to counsel during custodial
Philippine waters or territory. For the State to have criminal jurisdiction,
investigation may not be waived except in writing and in the presence of
the act must have been committed within its territory.
counsel.
We affirm the conviction of all the accused-appellants.
Section 12, Article III of the Constitution reads:
The issues of the instant case may be summarized as follows: (1) what
SEC. 12. (1) Any person under investigation for the commission of an
are the legal effects and implications of the fact that a non-lawyer
offense shall have the right to be informed of his right to remain silent
represented accused-appellants during the trial?; (2) what are the legal
and to have competent and independent counsel preferably of his own
effects and implications of the absence of counsel during the custodial
choice. If the person cannot afford the services of counsel, he must be
investigation?; (3) did the trial court err in finding that the prosecution
provided with one. These rights cannot be waived except in writing and
was able to prove beyond reasonable doubt that accused-appellants
in the presence of counsel.
committed the crime of qualified piracy?; (4) did Republic Act No. 7659
obliterate the crime committed by accused-appellant Cheong?; and (5) (2) No torture, force, violence, threat, intimidation, or any other means
can accused-appellant Cheong be convicted as accomplice when he which vitiate the free will shall be used against him. Secret detention
was not charged as such and when the acts allegedly committed by him places, solitary, incommunicado, or other similar forms of detention are
were done or executed outside Philippine waters and territory? prohibited.
On the first issue, the record reveals that a manifestation (Exhibit "20", (3) Any confession or admission obtained in violation of this or Section
Record) was executed by accused-appellants Tulin, Loyola, Changco, 17 hereof shall be inadmissible in evidence against him.
and Infante, Jr. on February 11, 1991, stating that they were adopting
the evidence adduced when they were represented by a non-lawyer. (4) The law shall provide for penal and civil sanctions for violations of
Such waiver of the right to sufficient representation during the trial as this section as well as compensation to and rehabilitation of victims of
covered by the due process clause shall only be valid if made with the torture or similar practices, and their families.
(pp. 106-112, Rollo.) We affirm the trial court's finding that Emilio Changco, accused-
appellants Tulin, Loyola, and Infante, Jr. and others, were the ones
We also agree with the trial court's finding that accused-appellants'
assigned to attack and seize the "M/T Tabangao" off Lubang, Mindoro,
defense of denial is not supported by any hard evidence but their bare
while accused-appellant Cecilio Changco was to fetch the master and
testimony.Greater weight is given to the categorical identification of the
the members of the crew from the shoreline of Calatagan, Batangas
after the transfer, and bring them to Imus, Cavite, and to provide the person who, on the high seas, or in Philippine waters, shall attack or
crew and the officers of the vessel with money for their fare and food seize a vessel or, being a member of its complement nor a
provisions on their way home. These acts had to be well-coordinated. passenger, shall seize the whole or part of the cargo of said vessel, its
Accused-appellant Cecilio Changco need not be present at the time of equipment, or personal belongings of its complement or passengers.
the attack and seizure of "M/T Tabangao" since he performed his task
(Underscoring ours)
in view of an objective common to all other accused- appellants.
On the other hand, Section 2 of Presidential Decree No. 532 provides:
Of notable importance is the connection of accused-appellants to one
another. Accused-appellant Cecilio Changco is the younger brother of SEC. 2. Definition of Terms. - The following shall mean and be
Emilio Changco (aka Captain Bobby/Captain Roberto Castillo/Kevin understood, as follows:
Ocampo), owner of Phil-Asia Shipping Lines. Cecilio worked for his
brother in said corporation. Their residences are approximately six or d. Piracy. -Any attack upon or seizure of any vessel, or the taking away
seven kilometers away from each other. Their families are close. of the whole or part thereof or its cargo, equipment, or the personal
Accused-appellant Tulin, on the other hand, has known Cecilio since belongings of its complement or passengers, irrespective of the value
their parents were neighbors in Aplaya, Balibago, Calatagan, thereof, by means of violence against or intimidation of persons or force
Batangas. Accused-appellant Loyola's wife is a relative of the Changco upon things, committed by any person. including a passenger or
brothers by affinity .Besides, Loyola and Emilio Changco had both been member of the complement of said vessel in Philippine waters, shall be
accused in a seajacking case regarding "M/T Isla Luzon" and its cargo considered as piracy. The offenders shall be considered as pirates and
of steel coils and plates off Cebu and Bohol in 1989. Emilio Changco punished as hereinafter provided (underscoring supplied).
(aka Kevin Ocampo) was convicted of the crime while Loyola at that time
To summarize, Article 122 of the Revised Penal Code, before its
remained at large.
amendment, provided that piracy must be committed on the high seas
As for accused-appellant Hiong, he ratiocinates that he can no longer by any person not a member of its complement nor a passenger
be convicted of piracy in Philippine waters as defined and penalized in thereof. Upon its amendment by Republic Act No. 7659, the coverage
Sections 2[d] and 3[a], respectively of Presidential Decree No. 532 of the pertinent provision was widened to include offenses committed "in
because Republic Act No. 7659 (effective January 1, 1994) which Philippine waters." On the other hand, under Presidential Decree No.
amended Article 122 of the Revised Penal Code, has impliedly 532 (issued in 1974), the coverage of the law on piracy embraces any
superseded Presidential Decree No. 532. He reasons out that person including "a passenger or member of the complement of said
Presidential Decree No. 532 has been rendered "superfluous or vessel in Philippine waters." Hence, passenger or not, a member of the
duplicitous" because both Article 122 of the Revised Penal Code, as complement or not, any person is covered by the law.
Article 122 of the Revised Penal Code, used to provide: lawlessness condemned by the penal statutes of all countries." For this
reason, piracy under the Article 122, as amended, and piracy under
Article 122. Piracy in general and mutiny on the high seas. -The penalty Presidential Decree No. 532 exist harmoniously as separate laws.
of reclusion temporal shall be inflicted upon any person who, on the high
seas, shall attack or seize a vessel or, not being a member of its As regards the contention that the trial court did not acquire jurisdiction
complement nor a passenger, shall seize the whole or part of the cargo over the person of accused-appellant Hiong since the crime was
of said vessel, its equipment, or personal belongings of its complement committed outside Philippine waters, suffice it to state that
Moreover, piracy falls under Title One of Book Two of the Revised Penal Emphasis must also be placed on the last paragraph of Section 4 of
Code. As such, it is an exception to the rule on territoriality in criminal Presidential Decree No 532 which presumes that any person who does
law. The same principle applies even if Hiong, in the instant case, were any of the acts provided in said section has performed them knowingly,
charged, not with a violation of qualified piracy under the penal code but unless the contrary is proven. In the case at bar, accused-appellant
under a special law, Presidential Decree No. 532 which penalizes piracy Hiong had failed to overcome the legal presumption that he knowingly
in Philippine waters. Verily, Presidential Decree No. 532 should be abetted or aided in the commission of piracy, received property taken by
applied with more force here since its purpose is precisely to discourage such pirates and derived benefit therefrom.
and prevent piracy in Philippine waters (People v. Catantan, 278 SCRA
The record discloses that accused-appellant Hiong aided the pirates in
761 [1997]). It is likewise, well-settled that regardless of the law
disposing of the stolen cargo by personally directing its transfer from
penalizing the same, piracy is a reprehensible crime against the whole
"M/T Galilee" to "M/T Navi Pride". He profited therefrom by buying the
world (People v. Lol-lo, 43 Phil. 19 [1922]).
hijacked cargo for Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992,
However, does this constitute a violation of accused-appellant's pp. 15-23). He even tested the quality and verified the quantity of the
constitutional right to be informed of the nature and cause of the petroleum products, connived with Navi Marine Services personnel in
accusation against him on the ground that he was convicted as an falsifying the General Declarations and Crew List to ensure that the
accomplice under Section 4 of Presidential Decree No. 532 even though illegal transfer went through, undetected by Singapore Port Authorities,
he was charged as a principal by direct participation under Section 2 of and supplied the pirates with food, beer, and other provisions for their
said law? maintenance while in port (tsn, June 3, 1992, pp. 133-134).
The trial court found that there was insufficiency of evidence showing: We believe that the falsification of the General Declaration (Arrival and
Departure) and Crew List was accomplished and utilized by accused-
(a) that accused-appellant Hiong directly participated in the attack and
appellant Hiong and Navi Marine Services personnel in the execution of
seizure of "M/T Tabangao" and its cargo; (b) that he induced Emilio
their scheme to avert detection by Singapore Port Authorities. Hence,
Changco and his group in the attack and seizure of "M/T Tabangao" and
had accused-appellant Hiong not falsified said entries, the Singapore
its cargo; ( c) and that his act was indispensable in the attack on and
Port Authorities could have easily discovered the illegal activities that
seizure of "M/T Tabangao" and its cargo. Nevertheless, the trial court
took place and this would have resulted in his arrest and prosecution in
found that accused-appellant Hiong's participation was indisputably one
Singapore. Moreover, the transfer of the stolen cargo from "M/T Galilee"
which aided or abetted Emilio Changco and his band of pirates in the
to "Navi Pride" could not have been effected.
disposition of the stolen cargo under Section 4 of Presidential Decree
No. 532 which provides: We completely uphold the factual findings of the trial court showing in
detail accused-appellant Hiong's role in the disposition of the pirated
SEC. 4. Aiding pirates or highway robbers/brigands or abetting piracy or
goods summarized as follows: that on March 27, 1991, Hiong with
highway robbery brigandage. -Any person who knowingly and in any
Captain Biddy Santos boarded the "Navi Pride," one of the vessels of
manner aids or protects pirates or highway robbers/brigands, such as
the Navi Marine, to rendezvous with the "M/T Galilee"; that the firm
giving them information about the movement of police or other peace
submitted the crew list of the vessel (Exhibit "8-CSH", Record) to the
officers of the government, or acquires or receives property taken by
port authorities, excluding the name of Hiong; that the "General
such pirates or brigands or in any manner derives any benefit therefrom;
Declaration" (for departure) of the "Navi Pride" for its voyage off port of
or any person who directly or indirectly abets the commission of piracy
Singapore (Exhibits "HH" and "8-A CSH", Record) falsely stated that the
or highway robbery or brigandage, shall be considered as an accomplice
vessel was scheduled to depart at 2200 (10 o'clock in the evening), that
of the principal officers and be punished in accordance with Rules
there were no passengers on board, and the purpose of the voyage was
prescribed by the Revised Penal Code.
for "cargo operation" and that the vessel was to unload and transfer
It shall be presumed that any person who does any of the acts provided 1,900 tons of cargo; that after the transfer of the fuel from "M/T Galilee"
in this Section has performed them knowingly, unless the contrary is with' Emilio Changco a. k. a. Captain Bobby a. k. a. Roberto Castillo at
proven. the helm, the surveyor prepared the "Quantity Certificate" (Exhibit "11-
C CSH, Record) stating that the cargo transferred to the "Navi Pride"
The ruling of the trial court is Within well-settle jurisprudence that if there was 2,406 gross cubic meters; that although Hiong was not the Master
is lack of complete evidence of conspiracy, the liability is that of an of the vessel, he affixed his signature on the "Certificate" above the word
accomplice and not as principal (People v. Tolentino, 40 SCRA 514 "Master" (Exhibit "11-C-2 CSH", Record); that he then paid $150,000.00
[1971]). Any doubt as to the participation of an individual in the but did not require any receipt for the amount; that Emilio Changco also
commission of the crime is always resolved in favor of lesser did not issue one; and that in the requisite "General Declaration" upon
responsibility (People v. Corbes, 270 SCRA 465 [1997]; People vs. its arrival at Singapore on March 29, 1991, at 7 o'clock in the evening,
(Exhibits "JJ" and "13-A CSH", Record), it was made to falsely appear Timothy. Thereafter, he could have refused to follow orders to conclude
that the "Navi Pride" unloaded 1,700 tons of cargo on the high seas the deal and to effect the transfer of the cargo to the Navi Pride. He did
during said voyage when in fact it acquired from the "M/T Galilee" 2,000 not do so, for which reason, he must now suffer the consequences of
metric tons of diesel oil. The second transfer transpired with the same his actions.
irregularities as discussed above. It was likewise supervised by
WHEREFORE, finding the conviction of accused-appellants justified by
accused- appellant Cheong from his end while Emilio Changco
the evidence on record, the Court hereby AFFIRMS the judgment of the
supervised the transfer from his end.
trial court in toto.
Accused-appellant Hiong maintains that he was merely following the
SO ORDERED.
orders of his superiors and that he has no knowledge of the illegality of
the source of the cargo. Vitug, Panganiban, Gonzaga-Reyes, and Sandoval-Gutierrez,
JJ., concur.
First and foremost, accused-appellant Hiong cannot deny knowledge of
the source and nature of the cargo since he himself received the same
from "M/T Tabangao". Second, considering that he is a highly educated
mariner, he should have avoided any participation in the cargo transfer
given the very suspicious circumstances under which it was
acquired. He failed to show a single piece of deed or bill of sale or even
a purchase order or any contract of sale for the purchase by the firm; he
never bothered to ask for and scrutinize the papers and documentation
relative to the "M/T Galilee"; he did not even verify the identity of Captain
Robert Castillo whom he met for the first time nor did he check the
source of the cargo; he knew that the transfer took place 66 nautical
miles off Singapore in the dead of the night which a marine vessel of his
firm did not ordinarily do; it was also the first time Navi Marine transacted
with Paul Gan involving a large sum of money without any receipt issued
therefor; he was not even aware if Paul Gan was a Singaporean national
and thus safe to deal with. It should also be noted that the value of the
cargo was P40,426,793.87 or roughly more than US$l,000,000.00
(computed at P30.00 to $1, the exchange rate at that time). Manifestly,
the cargo was sold for less than one-half of its value. Accused-appellant
Hiong should have been aware of this irregularity. Nobody in his right
mind would go to far away Singapore, spend much time and money for
transportation -only to sell at the aforestated price if it were legitimate
sale involved. This, in addition to the act of falsifying records, clearly
shows that accused-appellant Hiong was well aware that the cargo that
his firm was acquiring was purloined.
LIM, Respondent. provision of this ordinance shall upon conviction thereof be punished by
a fine of Five Thousand (P5,000.00) Pesos or imprisonment for a period
DECISION of not exceeding one (1) year or both such fine and imprisonment at the
discretion of the court; Provided, That in case of [a] juridical person, the
Tinga, J.:
president, the manager, or the persons in charge of the operation thereof
With another city ordinance of Manila also principally involving the tourist shall be liable: Provided, further, That in case of subsequent conviction
district as subject, the Court is confronted anew with the incessant clash for the same offense, the business license of the guilty party shall
between government power and individual liberty in tandem with the automatically be cancelled.
archetypal tension between law and morality.
SEC. 6. Repealing Clause. Any or all provisions of City ordinances not
In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a consistent with or contrary to this measure or any portion hereof are
city ordinance barring the operation of motels and inns, among other hereby deemed repealed.
establishments, within the Ermita-Malate area. The petition at bar
SEC. 7. Effectivity. This ordinance shall take effect immediately upon
assails a similarly-motivated city ordinance that prohibits those same
approval.
establishments from offering short-time admission, as well as pro-rated
or "wash up" rates for such abbreviated stays. Our earlier decision Enacted by the city Council of Manila at its regular session today,
tested the city ordinance against our sacred constitutional rights to November 10, 1992.
liberty, due process and equal protection of law. The same parameters
apply to the present petition. Approved by His Honor, the Mayor on December 3, 1992.
This Petition2 under Rule 45 of the Revised Rules on Civil Procedure, On December 15, 1992, the Malate Tourist and Development
which seeks the reversal of the Decision3 in C.A.-G.R. S.P. No. 33316 Corporation (MTDC) filed a complaint for declaratory relief with prayer
of the Court of Appeals, challenges the validity of Manila City Ordinance for a writ of preliminary injunction and/or temporary restraining order (
No. 7774 entitled, "An Ordinance Prohibiting Short-Time Admission, TRO)5 with the Regional Trial Court (RTC) of Manila, Branch 9
Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels, impleading as defendant, herein respondent City of Manila (the City)
Motels, Inns, Lodging Houses, Pension Houses, and Similar represented by Mayor Lim.6 MTDC prayed that the Ordinance, insofar
Establishments in the City of Manila" (the Ordinance). as it includes motels and inns as among its prohibited establishments,
be declared invalid and unconstitutional. MTDC claimed that as owner
I. and operator of the Victoria Court in Malate, Manila it was authorized by
Presidential Decree (P.D.) No. 259 to admit customers on a short time
The facts are as follows:
basis as well as to charge customers wash up rates for stays of only
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed three hours.
into law the Ordinance.4 The Ordinance is reproduced in full, hereunder:
On December 21, 1992, petitioners White Light Corporation (WLC),
SECTION 1. Declaration of Policy. It is hereby the declared policy of the Titanium Corporation (TC) and Sta. Mesa Tourist and Development
City Government to protect the best interest, health and welfare, and the Corporation (STDC) filed a motion to intervene and to admit attached
morality of its constituents in general and the youth in particular. complaint-in-intervention7 on the ground that the Ordinance directly
affects their business interests as operators of drive-in-hotels and
SEC. 2. Title. This ordinance shall be known as "An Ordinance"
motels in Manila.8 The three companies are components of the Anito
prohibiting short time admission in hotels, motels, lodging houses,
Group of Companies which owns and operates several hotels and
pension houses and similar establishments in the City of Manila.
motels in Metro Manila.9
On December 23, 1992, the RTC granted the motion to intervene.10 The houses and other similar establishments, including tourist guides and
RTC also notified the Solicitor General of the proceedings pursuant to transports.22
then Rule 64, Section 4 of the Rules of Court. On the same date, MTDC
The Ordinance, it is argued, is also a valid exercise of the power of the
moved to withdraw as plaintiff.11
City under Article III, Section 18(kk) of the Revised Manila Charter, thus:
On December 28, 1992, the RTC granted MTDC's motion to
"to enact all ordinances it may deem necessary and proper for the
withdraw.12 The RTC issued a TRO on January 14, 1993, directing the
sanitation and safety, the furtherance of the prosperity and the
City to cease and desist from enforcing the Ordinance.13 The City filed
promotion of the morality, peace, good order, comfort, convenience and
an Answer dated January 22, 1993 alleging that the Ordinance is a
general welfare of the city and its inhabitants, and such others as be
legitimate exercise of police power.14
necessary to carry into effect and discharge the powers and duties
On February 8, 1993, the RTC issued a writ of preliminary injunction conferred by this Chapter; and to fix penalties for the violation of
ordering the city to desist from the enforcement of the Ordinance.15 A ordinances which shall not exceed two hundred pesos fine or six months
month later, on March 8, 1993, the Solicitor General filed his Comment imprisonment, or both such fine and imprisonment for a single
arguing that the Ordinance is constitutional. offense.23
During the pre-trial conference, the WLC, TC and STDC agreed to Petitioners argued that the Ordinance is unconstitutional and void since
submit the case for decision without trial as the case involved a purely it violates the right to privacy and the freedom of movement; it is an
legal question.16 On October 20, 1993, the RTC rendered a decision invalid exercise of police power; and it is an unreasonable and
declaring the Ordinance null and void. The dispositive portion of the oppressive interference in their business.
decision reads:
The Court of Appeals reversed the decision of the RTC and affirmed the
WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the constitutionality of the Ordinance.24 First, it held that the Ordinance did
City of Manila is hereby declared null and void. not violate the right to privacy or the freedom of movement, as it only
penalizes the owners or operators of establishments that admit
Accordingly, the preliminary injunction heretofor issued is hereby made
individuals for short time stays. Second, the virtually limitless reach of
permanent.
police power is only constrained by having a lawful object obtained
Before the Court of Appeals, the City asserted that the Ordinance is a also being interfered with. Thus, the crux of the matter is whether or not
valid exercise of police power pursuant to Section 458 (4)(iv) of the Local these establishments have the requisite standing to plead for protection
Government Code which confers on cities, among other local of their patrons' equal protection rights.
government units, the power:
Standing or locus standi is the ability of a party to demonstrate to the
[To] regulate the establishment, operation and maintenance of cafes, court sufficient connection to and harm from the law or action challenged
restaurants, beerhouses, hotels, motels, inns, pension houses, lodging to support that party's participation in the case. More importantly, the
doctrine of standing is built on the principle of separation of
powers,26 sparing as it does unnecessary interference or invalidation "by acting as advocates of the rights of third parties who seek access to
by the judicial branch of the actions rendered by its co-equal branches their market or function."38
of government.
Assuming arguendo that petitioners do not have a relationship with their
The requirement of standing is a core component of the judicial system patrons for the former to assert the rights of the latter, the overbreadth
derived directly from the Constitution.27 The constitutional component doctrine comes into play. In overbreadth analysis, challengers to
of standing doctrine incorporates concepts which concededly are not government action are in effect permitted to raise the rights of third
susceptible of precise definition.28 In this jurisdiction, the extancy of "a parties. Generally applied to statutes infringing on the freedom of
direct and personal interest" presents the most obvious cause, as well speech, the overbreadth doctrine applies when a statute needlessly
as the standard test for a petitioner's standing.29 In a similar vein, the restrains even constitutionally guaranteed rights.39 In this case, the
United States Supreme Court reviewed and elaborated on the meaning petitioners claim that the Ordinance makes a sweeping intrusion into the
of the three constitutional standing requirements of injury, causation, right to liberty of their clients. We can see that based on the allegations
and redressability in Allen v. Wright.30 in the petition, the Ordinance suffers from overbreadth.
Nonetheless, the general rules on standing admit of several exceptions We thus recognize that the petitioners have a right to assert the
such as the overbreadth doctrine, taxpayer suits, third party standing constitutional rights of their clients to patronize their establishments for
and, especially in the Philippines, the doctrine of transcendental a "wash-rate" time frame.
importance.31
III.
For this particular set of facts, the concept of third party standing as an
To students of jurisprudence, the facts of this case will recall to mind not
exception and the overbreadth doctrine are appropriate. In Powers v.
only the recent City of Manila ruling, but our 1967 decision in Ermita-
Ohio,32 the United States Supreme Court wrote that: "We have
Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor
recognized the right of litigants to bring actions on behalf of third parties,
of Manila.40Ermita-Malate concerned the City ordinance requiring
provided three important criteria are satisfied: the litigant must have
patrons to fill up a prescribed form stating personal information such as
suffered an injury-in-fact, thus giving him or her a "sufficiently concrete
name, gender, nationality, age, address and occupation before they
interest" in the outcome of the issue in dispute; the litigant must have a
could be admitted to a motel, hotel or lodging house. This earlier
close relation to the third party; and there must exist some hindrance to
ordinance was precisely enacted to minimize certain practices deemed
the third party's ability to protect his or her own interests."33 Herein, it is
harmful to public morals. A purpose similar to the annulled ordinance
clear that the business interests of the petitioners are likewise injured by
in City of Manila which sought a blanket ban on motels, inns and similar
the Ordinance. They rely on the patronage of their customers for their
establishments in the Ermita-Malate area. However, the constitutionality
continued viability which appears to be threatened by the enforcement
of the ordinance in Ermita-Malate was sustained by the Court.
of the Ordinance. The relative silence in constitutional litigation of such
special interest groups in our nation such as the American Civil Liberties The common thread that runs through those decisions and the case at
Union in the United States may also be construed as a hindrance for bar goes beyond the singularity of the localities covered under the
customers to bring suit.34 respective ordinances. All three ordinances were enacted with a view of
regulating public morals including particular illicit activity in transient
American jurisprudence is replete with examples where parties-in-
lodging establishments. This could be described as the middle case,
interest were allowed standing to advocate or invoke the fundamental
wherein there is no wholesale ban on motels and hotels but the services
due process or equal protection claims of other persons or classes of
offered by these establishments have been severely restricted. At its
persons injured by state action. In Griswold v. Connecticut,35 the United
core, this is another case about the extent to which the State can intrude
States Supreme Court held that physicians had standing to challenge a
into and regulate the lives of its citizens.
reproductive health statute that would penalize them as accessories as
well as to plead the constitutional protections available to their patients. The test of a valid ordinance is well established. A long line of decisions
The Court held that: including City of Manila has held that for an ordinance to be valid, it must
not only be within the corporate powers of the local government unit to
"The rights of husband and wife, pressed here, are likely to be diluted or
enact and pass according to the procedure prescribed by law, it must
adversely affected unless those rights are considered in a suit involving
also conform to the following substantive requirements: (1) must not
those who have this kind of confidential relation to them."36
contravene the Constitution or any statute; (2) must not be unfair or
An even more analogous example may be found in Craig v. oppressive; (3) must not be partial or discriminatory; (4) must not prohibit
Boren,37 wherein the United States Supreme Court held that a licensed but may regulate trade; (5) must be general and consistent with public
beverage vendor has standing to raise the equal protection claim of a policy; and (6) must not be unreasonable.41
male customer challenging a statutory scheme prohibiting the sale of
The Ordinance prohibits two specific and distinct business practices,
beer to males under the age of 21 and to females under the age of 18.
namely wash rate admissions and renting out a room more than twice a
The United States High Court explained that the vendors had standing
day. The ban is evidently sought to be rooted in the police power as The due process guaranty has traditionally been interpreted as imposing
conferred on local government units by the Local Government Code two related but distinct restrictions on government, "procedural due
through such implements as the general welfare clause. process" and "substantive due process." Procedural due process refers
to the procedures that the government must follow before it deprives a
A.
person of life, liberty, or property.49 Procedural due process concerns
Police power, while incapable of an exact definition, has been purposely itself with government action adhering to the established process when
veiled in general terms to underscore its comprehensiveness to meet all it makes an intrusion into the private sphere. Examples range from the
exigencies and provide enough room for an efficient and flexible form of notice given to the level of formality of a hearing.
response as the conditions warrant.42 Police power is based upon the
If due process were confined solely to its procedural aspects, there
concept of necessity of the State and its corresponding right to protect
would arise absurd situation of arbitrary government action, provided the
itself and its people.43 Police power has been used as justification for
proper formalities are followed. Substantive due process completes the
numerous and varied actions by the State. These range from the
protection envisioned by the due process clause. It inquires whether the
regulation of dance halls,44 movie theaters,45 gas stations46 and
government has sufficient justification for depriving a person of life,
cockpits.47 The awesome scope of police power is best demonstrated
liberty, or property.50
by the fact that in its hundred or so years of presence in our nations
legal system, its use has rarely been denied. The question of substantive due process, moreso than most other fields
of law, has reflected dynamism in progressive legal thought tied with the
The apparent goal of the Ordinance is to minimize if not eliminate the
expanded acceptance of fundamental freedoms. Police power,
use of the covered establishments for illicit sex, prostitution, drug use
traditionally awesome as it may be, is now confronted with a more
and alike. These goals, by themselves, are unimpeachable and certainly
rigorous level of analysis before it can be upheld. The vitality though of
fall within the ambit of the police power of the State. Yet the desirability
constitutional due process has not been predicated on the frequency
of these ends do not sanctify any and all means for their achievement.
with which it has been utilized to achieve a liberal result for, after all, the
Those means must align with the Constitution, and our emerging
libertarian ends should sometimes yield to the prerogatives of the State.
sophisticated analysis of its guarantees to the people. The Bill of Rights
Instead, the due process clause has acquired potency because of the
stands as a rebuke to the seductive theory of Macchiavelli, and,
sophisticated methodology that has emerged to determine the proper
sometimes even, the political majorities animated by his cynicism.
metes and bounds for its application.
Even as we design the precedents that establish the framework for
C.
analysis of due process or equal protection questions, the courts are
naturally inhibited by a due deference to the co-equal branches of The general test of the validity of an ordinance on substantive due
government as they exercise their political functions. But when we are process grounds is best tested when assessed with the evolved footnote
compelled to nullify executive or legislative actions, yet another form of 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene
caution emerges. If the Court were animated by the same passing Products.51 Footnote 4 of the Carolene Products case acknowledged
fancies or turbulent emotions that motivate many political decisions, that the judiciary would defer to the legislature unless there is a
judicial integrity is compromised by any perception that the judiciary is discrimination against a "discrete and insular" minority or infringement
merely the third political branch of government. We derive our respect of a "fundamental right."52 Consequently, two standards of judicial
and good standing in the annals of history by acting as judicious and review were established: strict scrutiny for laws dealing with freedom of
neutral arbiters of the rule of law, and there is no surer way to that end the mind or restricting the political process, and the rational basis
than through the development of rigorous and sophisticated legal standard of review for economic legislation.
standards through which the courts analyze the most fundamental and
A third standard, denominated as heightened or immediate scrutiny, was
far-reaching constitutional questions of the day.
later adopted by the U.S. Supreme Court for evaluating classifications
B. based on gender53 and legitimacy.54 Immediate scrutiny was adopted
by the U.S. Supreme Court in Craig,55 after the Court declined to do so
The primary constitutional question that confronts us is one of due
in Reed v. Reed.56 While the test may have first been articulated in
process, as guaranteed under Section 1, Article III of the Constitution.
equal protection analysis, it has in the United States since been applied
Due process evades a precise definition.48 The purpose of the guaranty
in all substantive due process cases as well.
is to prevent arbitrary governmental encroachment against the life,
liberty and property of individuals. The due process guaranty serves as We ourselves have often applied the rational basis test mainly in
a protection against arbitrary regulation or seizure. Even corporations analysis of equal protection challenges.57 Using the rational basis
and partnerships are protected by the guaranty insofar as their property examination, laws or ordinances are upheld if they rationally further a
is concerned. legitimate governmental interest.58 Under intermediate review,
governmental interest is extensively examined and the availability of
less restrictive measures is considered.59 Applying strict scrutiny, the
focus is on the presence of compelling, rather than substantial, and to pursue any avocation are all deemed embraced in the concept of
governmental interest and on the absence of less restrictive means for liberty.[66]
achieving that interest.
The U.S. Supreme Court in the case of Roth v. Board of Regents, sought
In terms of judicial review of statutes or ordinances, strict scrutiny refers to clarify the meaning of "liberty." It said:
to the standard for determining the quality and the amount of
While the Court has not attempted to define with exactness the liberty .
governmental interest brought to justify the regulation of fundamental
. . guaranteed [by the Fifth and Fourteenth Amendments], the term
freedoms.60 Strict scrutiny is used today to test the validity of laws
denotes not merely freedom from bodily restraint but also the right of the
dealing with the regulation of speech, gender, or race as well as other
individual to contract, to engage in any of the common occupations of
fundamental rights as expansion from its earlier applications to equal
life, to acquire useful knowledge, to marry, establish a home and bring
protection.61 The United States Supreme Court has expanded the
up children, to worship God according to the dictates of his own
scope of strict scrutiny to protect fundamental rights such as
conscience, and generally to enjoy those privileges long recognized . . .
suffrage,62 judicial access63and interstate travel.64
as essential to the orderly pursuit of happiness by free men. In a
If we were to take the myopic view that an Ordinance should be analyzed Constitution for a free people, there can be no doubt that the meaning
strictly as to its effect only on the petitioners at bar, then it would seem of "liberty" must be broad indeed.67 [Citations omitted]
that the only restraint imposed by the law which we are capacitated to
It cannot be denied that the primary animus behind the ordinance is the
act upon is the injury to property sustained by the petitioners, an injury
curtailment of sexual behavior. The City asserts before this Court that
that would warrant the application of the most deferential standard the
the subject establishments "have gained notoriety as venue of
rational basis test. Yet as earlier stated, we recognize the capacity of the
prostitution, adultery and fornications in Manila since they provide the
petitioners to invoke as well the constitutional rights of their patrons
necessary atmosphere for clandestine entry, presence and exit and thus
those persons who would be deprived of availing short time access or
became the ideal haven for prostitutes and thrill-seekers."68 Whether
wash-up rates to the lodging establishments in question.
or not this depiction of a mise-en-scene of vice is accurate, it cannot be
Viewed cynically, one might say that the infringed rights of these denied that legitimate sexual behavior among willing married or
customers were are trivial since they seem shorn of political consenting single adults which is constitutionally protected69 will be
consequence. Concededly, these are not the sort of cherished rights curtailed as well, as it was in the City of Manila case. Our holding therein
that, when proscribed, would impel the people to tear up their cedulas. retains significance for our purposes:
Still, the Bill of Rights does not shelter gravitas alone. Indeed, it is those
The concept of liberty compels respect for the individual whose claim to
"trivial" yet fundamental freedoms which the people reflexively
privacy and interference demands respect. As the case of Morfe v.
exercise any day without the impairing awareness of their constitutional
Mutuc, borrowing the words of Laski, so very aptly stated:
consequence that accurately reflect the degree of liberty enjoyed by
the people. Liberty, as integrally incorporated as a fundamental right in Man is one among many, obstinately refusing reduction to unity. His
the Constitution, is not a Ten Commandments-style enumeration of what separateness, his isolation, are indefeasible; indeed, they are so
may or what may not be done; but rather an atmosphere of freedom fundamental that they are the basis on which his civic obligations are
where the people do not feel labored under a Big Brother presence as built. He cannot abandon the consequences of his isolation, which are,
they interact with each other, their society and nature, in a manner broadly speaking, that his experience is private, and the will built out of
innately understood by them as inherent, without doing harm or injury to that experience personal to himself. If he surrenders his will to others,
others. he surrenders himself. If his will is set by the will of others, he ceases to
be a master of himself. I cannot believe that a man no longer a master
D.
of himself is in any real sense free.
The rights at stake herein fall within the same fundamental rights to
Indeed, the right to privacy as a constitutional right was recognized
liberty which we upheld in City of Manila v. Hon. Laguio, Jr. We
in Morfe, the invasion of which should be justified by a compelling state
expounded on that most primordial of rights, thus:
interest. Morfe accorded recognition to the right to privacy
Liberty as guaranteed by the Constitution was defined by Justice independently of its identification with liberty; in itself it is fully deserving
Malcolm to include "the right to exist and the right to be free from of constitutional protection. Governmental powers should stop short of
arbitrary restraint or servitude. The term cannot be dwarfed into mere certain intrusions into the personal life of the citizen.70
freedom from physical restraint of the person of the citizen, but is
We cannot discount other legitimate activities which the Ordinance
deemed to embrace the right of man to enjoy the facilities with which he
would proscribe or impair. There are very legitimate uses for a wash rate
has been endowed by his Creator, subject only to such restraint as are
or renting the room out for more than twice a day. Entire families are
necessary for the common welfare."[65] In accordance with this case,
known to choose pass the time in a motel or hotel whilst the power is
the rights of the citizen to be free to use his faculties in all lawful ways;
momentarily out in their homes. In transit passengers who wish to wash
to live and work where he will; to earn his livelihood by any lawful calling;
up and rest between trips have a legitimate purpose for abbreviated The behavior which the Ordinance seeks to curtail is in fact already
stays in motels or hotels. Indeed any person or groups of persons in prohibited and could in fact be diminished simply by applying existing
need of comfortable private spaces for a span of a few hours with laws. Less intrusive measures such as curbing the proliferation of
purposes other than having sex or using illegal drugs can legitimately prostitutes and drug dealers through active police work would be more
look to staying in a motel or hotel as a convenient alternative. effective in easing the situation. So would the strict enforcement of
existing laws and regulations penalizing prostitution and drug use.
E.
These measures would have minimal intrusion on the businesses of the
That the Ordinance prevents the lawful uses of a wash rate depriving petitioners and other legitimate merchants. Further, it is apparent that
patrons of a product and the petitioners of lucrative business ties in with the Ordinance can easily be circumvented by merely paying the whole
another constitutional requisite for the legitimacy of the Ordinance as a day rate without any hindrance to those engaged in illicit activities.
police power measure. It must appear that the interests of the public Moreover, drug dealers and prostitutes can in fact collect "wash rates"
generally, as distinguished from those of a particular class, require an from their clientele by charging their customers a portion of the rent for
interference with private rights and the means must be reasonably motel rooms and even apartments.
necessary for the accomplishment of the purpose and not unduly
IV.
oppressive of private rights.71 It must also be evident that no other
alternative for the accomplishment of the purpose less intrusive of We reiterate that individual rights may be adversely affected only to the
private rights can work. More importantly, a reasonable relation must extent that may fairly be required by the legitimate demands of public
exist between the purposes of the measure and the means employed interest or public welfare. The State is a leviathan that must be
for its accomplishment, for even under the guise of protecting the public restrained from needlessly intruding into the lives of its citizens. However
interest, personal rights and those pertaining to private property will not well-intentioned the Ordinance may be, it is in effect an arbitrary and
be permitted to be arbitrarily invaded.72 whimsical intrusion into the rights of the establishments as well as their
patrons. The Ordinance needlessly restrains the operation of the
Lacking a concurrence of these requisites, the police measure shall be
businesses of the petitioners as well as restricting the rights of their
struck down as an arbitrary intrusion into private rights. As held in Morfe
patrons without sufficient justification. The Ordinance rashly equates
v. Mutuc, the exercise of police power is subject to judicial review when
wash rates and renting out a room more than twice a day with immorality
life, liberty or property is affected.73 However, this is not in any way
without accommodating innocuous intentions.
meant to take it away from the vastness of State police power whose
exercise enjoys the presumption of validity.74 The promotion of public welfare and a sense of morality among citizens
deserves the full endorsement of the judiciary provided that such
Similar to the Comelec resolution requiring newspapers to donate
measures do not trample rights this Court is sworn to protect.77 The
advertising space to candidates, this Ordinance is a blunt and heavy
notion that the promotion of public morality is a function of the State is
instrument.75 The Ordinance makes no distinction between places
as old as Aristotle.78 The advancement of moral relativism as a school
frequented by patrons engaged in illicit activities and patrons engaged
of philosophy does not de-legitimize the role of morality in law, even if it
in legitimate actions. Thus it prevents legitimate use of places where
may foster wider debate on which particular behavior to penalize. It is
illicit activities are rare or even unheard of. A plain reading of section 3
conceivable that a society with relatively little shared morality among its
of the Ordinance shows it makes no classification of places of lodging,
citizens could be functional so long as the pursuit of sharply variant
thus deems them all susceptible to illicit patronage and subject them
moral perspectives yields an adequate accommodation of different
without exception to the unjustified prohibition.
interests.79
The Court has professed its deep sentiment and tenderness of the
To be candid about it, the oft-quoted American maxim that "you cannot
Ermita-Malate area, its longtime home,76 and it is skeptical of those who
legislate morality" is ultimately illegitimate as a matter of law, since as
wish to depict our capital city the Pearl of the Orient as a modern-
explained by Calabresi, that phrase is more accurately interpreted as
day Sodom or Gomorrah for the Third World set. Those still steeped in
meaning that efforts to legislate morality will fail if they are widely at
Nick Joaquin-dreams of the grandeur of Old Manila will have to accept
variance with public attitudes about right and wrong.80 Our penal laws,
that Manila like all evolving big cities, will have its problems. Urban
for one, are founded on age-old moral traditions, and as long as there
decay is a fact of mega cities such as Manila, and vice is a common
are widely accepted distinctions between right and wrong, they will
problem confronted by the modern metropolis wherever in the world.
remain so oriented.
The solution to such perceived decay is not to prevent legitimate
businesses from offering a legitimate product. Rather, cities revive Yet the continuing progression of the human story has seen not only the
themselves by offering incentives for new businesses to sprout up thus acceptance of the right-wrong distinction, but also the advent of
attracting the dynamism of individuals that would bring a new grandeur fundamental liberties as the key to the enjoyment of life to the fullest.
to Manila. Our democracy is distinguished from non-free societies not with any
more extensive elaboration on our part of what is moral and immoral,
but from our recognition that the individual liberty to make the choices in
our lives is innate, and protected by the State. Independent and fair-
minded judges themselves are under a moral duty to uphold the
Constitution as the embodiment of the rule of law, by reason of their
expression of consent to do so when they take the oath of office, and
because they are entrusted by the people to uphold the law.81
SO ORDERED.
Republic of the Philippines the issuance of a Temporary Protection Order (TPO) against her
SUPREME COURT husband, Jesus C. Garcia (petitioner), pursuant to R.A. 9262. She
Manila claimed to be a victim of physical abuse; emotional, psychological, and
economic violence as a result of marital infidelity on the part of petitioner,
EN BANC
with threats of deprivation of custody of her children and of financial
G.R. No. 179267 June 25, 2013 support.7
DECISION
Private respondent described herself as a dutiful and faithful wife, whose
PERLAS-BERNABE, J.: life revolved around her husband. On the other hand, petitioner, who is
of Filipino-Chinese descent, is dominant, controlling, and demands
Hailed as the bastion of Christianity in Asia, the Philippines boasts of absolute obedience from his wife and children. He forbade private
86.8 million Filipinos- or 93 percent of a total population of 93.3 million respondent to pray, and deliberately isolated her from her friends. When
adhering to the teachings of Jesus Christ.1 Yet, the admonition for she took up law, and even when she was already working part time at a
husbands to love their wives as their own bodies just as Christ loved the law office, petitioner trivialized her ambitions and prevailed upon her to
church and gave himself up for her2 failed to prevent, or even to curb, just stay at home. He was often jealous of the fact that his attractive wife
the pervasiveness of violence against Filipino women. The National still catches the eye of some men, at one point threatening that he would
Commission on the Role of Filipino Women (NCRFW) reported that, for have any man eyeing her killed.9
the years 2000-2003, "female violence comprised more than 90o/o of all
forms of abuse and violence and more than 90% of these reported cases Things turned for the worse when petitioner took up an affair with a bank
were committed by the women's intimate partners such as their manager of Robinson's Bank, Bacolod City, who is the godmother of one
husbands and live-in partners."3 of their sons. Petitioner admitted to the affair when private respondent
confronted him about it in 2004. He even boasted to the household help
Thus, on March 8, 2004, after nine (9) years of spirited advocacy by about his sexual relations with said bank manager. Petitioner told private
women's groups, Congress enacted Republic Act (R.A.) No. 9262, respondent, though, that he was just using the woman because of their
entitled "An Act Defining Violence Against Women and Their Children, accounts with the bank.10
Providing for Protective Measures for Victims, Prescribing Penalties
Therefor, and for Other Purposes." It took effect on March 27, 2004.4 Petitioner's infidelity spawned a series of fights that left private
respondent physically and emotionally wounded. In one of their quarrels,
R.A. 9262 is a landmark legislation that defines and criminalizes acts of petitioner grabbed private respondent on both arms and shook her with
violence against women and their children (VAWC) perpetrated by such force that caused bruises and hematoma. At another time,
women's intimate partners, i.e, husband; former husband; or any person petitioner hit private respondent forcefully on the lips that caused some
who has or had a sexual or dating relationship, or with whom the woman bleeding. Petitioner sometimes turned his ire on their daughter, Jo-Ann,
has a common child.5 The law provides for protection orders from the who had seen the text messages he sent to his paramour and whom he
barangay and the courts to prevent the commission of further acts of blamed for squealing on him. He beat Jo-Ann on the chest and slapped
VAWC; and outlines the duties and responsibilities of barangay officials, her many times. When private respondent decided to leave petitioner,
law enforcers, prosecutors and court personnel, social workers, health Jo-Ann begged her mother to stay for fear that if the latter leaves,
care providers, and other local government officials in responding to petitioner would beat her up. Even the small boys are aware of private
complaints of VAWC or requests for assistance. respondent's sufferings. Their 6-year-old son said that when he grows
up, he would beat up his father because of his cruelty to private
A husband is now before the Court assailing the constitutionality of R.A.
respondent.11
9262 as being violative of the equal protection and due process clauses,
and an undue delegation of judicial power to barangay officials. All the emotional and psychological turmoil drove private respondent to
the brink of despair. On December 17, 2005, while at home, she
The Factual Antecedents
attempted suicide by cutting her wrist. She was found by her son
On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for bleeding on the floor. Petitioner simply fled the house instead of taking
herself and in behalf of her minor children, a verified petition6 (Civil Case her to the hospital. Private respondent was hospitalized for about seven
No. 06-797) before the Regional Trial Court (RTC) of Bacolod City for (7) days in which time petitioner never bothered to visit, nor apologized
or showed pity on her. Since then, private respondent has been Inc. (Republic Act No. 9262 states "regardless of ownership"), this is to
undergoing therapy almost every week and is taking anti-depressant allow the Petitioner (private respondent herein) to enter the conjugal
medications.12 dwelling without any danger from the Respondent.
When private respondent informed the management of Robinson's Bank After the Respondent leaves or is removed from the conjugal dwelling,
that she intends to file charges against the bank manager, petitioner got or anytime the Petitioner decides to return to the conjugal dwelling to
angry with her for jeopardizing the manager's job. He then packed his remove things, the Petitioner shall be assisted by police officers when
things and told private respondent that he was leaving her for good. He re-entering the family home.
even told private respondent's mother, who lives with them in the family
The Chief of Police shall also give the Petitioner police assistance on
home, that private respondent should just accept his extramarital affair
Sunday, 26 March 2006 because of the danger that the Respondent will
since he is not cohabiting with his paramour and has not sired a child
attempt to take her children from her when he arrives from Manila and
with her.13
finds out about this suit.
Private respondent is determined to separate from petitioner but she is
b) To stay away from the petitioner and her children, mother and all her
afraid that he would take her children from her and deprive her of
household help and driver from a distance of 1,000 meters, and shall not
financial support. Petitioner had previously warned her that if she goes
enter the gate of the subdivision where the Petitioner may be temporarily
on a legal battle with him, she would not get a single centavo.14
residing.
Petitioner controls the family businesses involving mostly the
c) Not to harass, annoy, telephone, contact or otherwise communicate
construction of deep wells. He is the President of three corporations
with the Petitioner, directly or indirectly, or through other persons, or
326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros
contact directly or indirectly her children, mother and household help,
Trading Corporation of which he and private respondent are both
nor send gifts, cards, flowers, letters and the like. Visitation rights to the
stockholders. In contrast to the absolute control of petitioner over said
children may be subject of a modified TPO in the future.
corporations, private respondent merely draws a monthly salary
of P20,000.00 from one corporation only, the Negros Rotadrill d) To surrender all his firearms including a .9MM caliber firearm and a
Corporation. Household expenses amounting to not less Walther PPK and ordering the Philippine National Police Firearms and
than P200,000.00 a month are paid for by private respondent through Explosives Unit and the Provincial Director of the PNP to cancel all the
the use of credit cards, which, in turn, are paid by the same corporation Respondent's firearm licenses. He should also be ordered to surrender
together with the bills for utilities.15 any unlicensed firearms in his possession or control.
On the other hand, petitioner receives a monthly salary of P60,000.00 e) To pay full financial support for the Petitioner and the children,
from Negros Rotadrill Corporation, and enjoys unlimited cash advances including rental of a house for them, and educational and medical
and other benefits in hundreds of thousands of pesos from the expenses.
corporations.16 After private respondent confronted him about the affair,
petitioner forbade her to hold office at JBTC Building, Mandalagan, f) Not to dissipate the conjugal business.
Action of the RTC of Bacolod City by the Comptroller, copy furnished to the Petitioner, every 15 days of the
month, under pain of Indirect Contempt of Court.
Finding reasonable ground to believe that an imminent danger of
violence against the private respondent and her children exists or is h) To ensure compliance especially with the order granting support
about to recur, the RTC issued a TPO18 on March 24, 2006 effective for pendente lite, and considering the financial resources of the Respondent
thirty (30) days, which is quoted hereunder: and his threat that if the Petitioner sues she will not get a single centavo,
the Respondent is ordered to put up a BOND TO KEEP THE PEACE in
Respondent (petitioner herein), Jesus Chua Garcia, is hereby: the amount of FIVE MILLION PESOS, in two sufficient sureties.
a) Ordered to remove all his personal belongings from the conjugal On April 24, 2006, upon motion19 of private respondent, the trial court
dwelling or family home within 24 hours from receipt of the Temporary issued an amended TPO,20 effective for thirty (30) days, which included
Restraining Order and if he refuses, ordering that he be removed by the following additional provisions:
police officers from the conjugal dwelling; this order is enforceable
notwithstanding that the house is under the name of 236 Realty Holdings
i) The petitioners (private respondents herein) are given the continued within 24 hours from receipt of the Temporary Protection Order by his
use of the Nissan Patrol and the Starex Van which they are using in counsel, otherwise be declared in indirect contempt of Court;
Negros Occidental.
e) That respondent surrender his two firearms and all unlicensed
j) The petitioners are given the continued use and occupation of the firearms to the Clerk of Court within 24 hours from receipt of the
house in Paraaque, the continued use of the Starex van in Metro Temporary Protection Order by his counsel;
Manila, whenever they go to Manila.
f) That respondent shall pay petitioner educational expenses of the
k) Respondent is ordered to immediately post a bond to keep the peace, children upon presentation of proof of payment of such expenses.23
in two sufficient sureties.
Claiming that petitioner continued to deprive them of financial support;
l) To give monthly support to the petitioner provisionally fixed in the sum failed to faithfully comply with the TPO; and committed new acts of
of One Hundred Fifty Thousand Pesos (Php 150,000.00) per month plus harassment against her and their children, private respondent filed
rental expenses of Fifty Thousand Pesos (Php 50,000.00) per month another application24 for the issuance of a TPO ex parte. She alleged
until the matter of support could be finally resolved. inter
Two days later, or on April 26, 2006, petitioner filed an Opposition to the alia that petitioner contrived a replevin suit against himself by J-Bros
Urgent Ex-Parte Motion for Renewal of the TPO21 seeking the denial of Trading, Inc., of which the latter was purportedly no longer president,
the renewal of the TPO on the grounds that it did not (1) comply with the with the end in view of recovering the Nissan Patrol and Starex Van used
three-day notice rule, and (2) contain a notice of hearing. He further by private respondent and the children. A writ of replevin was served
asked that the TPO be modified by (1) removing one vehicle used by upon private respondent by a group of six or seven policemen with long
private respondent and returning the same to its rightful owner, the J- firearms that scared the two small boys, Jessie Anthone and Joseph
Bros Trading Corporation, and (2) cancelling or reducing the amount of Eduard.25
the bond from P5,000,000.00 to a more manageable level
While Joseph Eduard, then three years old, was driven to school, two
at P100,000.00.
men allegedly attempted to kidnap him, which incident traumatized the
Subsequently, on May 23, 2006, petitioner moved22 for the modification boy resulting in his refusal to go back to school. On another occasion,
of the TPO to allow him visitation rights to his children. petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and
threatened her.26 The incident was reported to the police, and Jo-Ann
On May 24, 2006, the TPO was renewed and extended yet again, but
subsequently filed a criminal complaint against her father for violation of
subject only to the following modifications prayed for by private
R.A. 7610, also known as the "Special Protection of Children Against
respondent:
Child Abuse, Exploitation and Discrimination Act."
a) That respondent (petitioner herein) return the clothes and other
Aside from the replevin suit, petitioner's lawyers initiated the filing by the
personal belongings of Rosalie and her children to Judge Jesus Ramos,
housemaids working at the conjugal home of a complaint for kidnapping
co-counsel for Petitioner, within 24 hours from receipt of the Temporary
and illegal detention against private respondent. This came about after
Protection Order by his counsel, otherwise be declared in Indirect
private respondent, armed with a TPO, went to said home to get her and
Contempt of Court;
her children's belongings. Finding some of her things inside a
b) Respondent shall make an accounting or list of furniture and housemaid's (Sheryl Jamola) bag in the maids' room, private respondent
equipment in the conjugal house in Pitimini St., Capitolville Subdivision, filed a case for qualified theft against Jamola.27
Bacolod City within 24 hours from receipt of the Temporary Protection
On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30)
Order by his counsel;
days, which reads as follows:
c) Ordering the Chief of the Women's Desk of the Bacolod City Police
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
Headquarters to remove Respondent from the conjugal dwelling within
eight (8) hours from receipt of the Temporary Protection Order by his 1) Prohibited from threatening to commit or committing, personally or
counsel, and that he cannot return until 48 hours after the petitioners through another, acts of violence against the offended party;
have left, so that the petitioner Rosalie and her representatives can
2) Prohibited from harassing, annoying, telephoning, contacting or
remove things from the conjugal home and make an inventory of the
otherwise communicating in any form with the offended party, either
household furniture, equipment and other things in the conjugal home,
directly or indirectly;
which shall be submitted to the Court.
3) Required to stay away, personally or through his friends, relatives,
d) Deliver full financial support of Php200,000.00 and Php50,000.00 for
employees or agents, from all the Petitioners Rosalie J. Garcia and her
rental and Php25,000.00 for clothes of the three petitioners (sic) children
children, Rosalie J. Garcia's three brothers, her mother Primitiva Jaype,
cook Novelita Caranzo, driver Romeo Hontiveros, laundrywoman
Mercedita Bornales, security guard Darwin Gayona and the petitioner's had already been issued renewing the TPO dated August 23, 2006. The
other household helpers from a distance of 1,000 meters, and shall not pertinent portion is quoted hereunder:
enter the gate of the subdivision where the Petitioners are temporarily
xxxx
residing, as well as from the schools of the three children; Furthermore,
that respondent shall not contact the schools of the children directly or x x x it appearing further that the hearing could not yet be finally
indirectly in any manner including, ostensibly to pay for their tuition or terminated, the Temporary Protection Order issued on August 23, 2006
other fees directly, otherwise he will have access to the children through is hereby renewed and extended for thirty (30) days and continuously
the schools and the TPO will be rendered nugatory; extended and renewed for thirty (30) days, after each expiration, until
further orders, and subject to such modifications as may be ordered by
4) Directed to surrender all his firearms including .9MM caliber firearm
the court.
and a Walther PPK to the Court;
After having received a copy of the foregoing Order, petitioner no longer
5) Directed to deliver in full financial support of Php200,000.00 a month
submitted the required comment to private respondent's motion for
and Php50,000.00 for rental for the period from August 6 to September
renewal of the TPO arguing that it would only be an "exercise in
6, 2006; and support in arrears from March 2006 to August 2006 the
futility."33
total amount of Php1,312,000.00;
9) Ordered that the Register of Deeds of Bacolod City and E.B. of R.A. 9262 through a petition for prohibition seeking to annul the
Magalona shall be served a copy of this TEMPORARY PROTECTION protection orders issued by the trial court constituted a collateral attack
ORDER and are ordered not to allow the transfer, sale, encumbrance or on said law.
disposition of these above-cited properties to any person, entity or
corporation without the personal presence of petitioner Rosalie J. His motion for reconsideration of the foregoing Decision having been
Garcia, who shall affix her signature in the presence of the Register of denied in the Resolution37 dated August 14, 2007, petitioner is now
Deeds, due to the fear of petitioner Rosalie that her signature will be before us alleging that
In defending his failure to attack the constitutionality of R.A. 9262 before a. All cases in which the constitutionality or validity of any treaty,
the RTC of Bacolod City, petitioner argues that the Family Court has international or executive agreement, law, presidential decree,
limited authority and jurisdiction that is "inadequate to tackle the complex proclamation, order, instruction, ordinance, or regulation is in question.
issue of constitutionality."41
xxxx
We disagree.
Thus, contrary to the posturing of petitioner, the issue of constitutionality
Family Courts have authority and jurisdiction to consider the of R.A. 9262 could have been raised at the earliest opportunity in his
constitutionality of a statute. Opposition to the petition for protection order before the RTC of Bacolod
City, which had jurisdiction to determine the same, subject to the review
At the outset, it must be stressed that Family Courts are special courts,
of this Court.
of the same level as Regional Trial Courts. Under R.A. 8369, otherwise
known as the "Family Courts Act of 1997," family courts have exclusive Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against
original jurisdiction to hear and decide cases of domestic violence Women and Their Children, lays down a new kind of procedure requiring
against women and children.42 In accordance with said law, the the respondent to file an opposition to the petition and not an
Supreme Court designated from among the branches of the Regional answer.49 Thus:
Trial Courts at least one Family Court in each of several key cities
SEC. 20. Opposition to petition. (a) The respondent may file an
identified.43 To achieve harmony with the first mentioned law, Section 7
opposition to the petition which he himself shall verify. It must be
of R.A. 9262 now provides that Regional Trial Courts designated as
accompanied by the affidavits of witnesses and shall show cause why a
Family Courts shall have original and exclusive jurisdiction over cases
temporary or permanent protection order should not be issued.
of VAWC defined under the latter law, viz:
(b) Respondent shall not include in the opposition any counterclaim, To obviate potential dangers that may arise concomitant to the conduct
cross-claim or third-party complaint, but any cause of action which could of a hearing when necessary, Section 26 (b) of A.M. No. 04-10-11-SC
be the subject thereof may be litigated in a separate civil action. provides that if a temporary protection order issued is due to expire, the
(Emphasis supplied) trial court may extend or renew the said order for a period of thirty (30)
days each time until final judgment is rendered. It may likewise modify
We cannot subscribe to the theory espoused by petitioner that, since a
the extended or renewed temporary protection order as may be
counterclaim, cross-claim and third-party complaint are to be excluded
necessary to meet the needs of the parties. With the private respondent
from the opposition, the issue of constitutionality cannot likewise be
given ample protection, petitioner could proceed to litigate the
raised therein. A counterclaim is defined as any claim for money or other
constitutional issues, without necessarily running afoul of the very
relief which a defending party may have against an opposing party.50 A
purpose for the adoption of the rules on summary procedure.
cross-claim, on the other hand, is any claim by one party against a co-
party arising out of the transaction or occurrence that is the subject In view of all the foregoing, the appellate court correctly dismissed the
matter either of the original action or of a counterclaim therein.51Finally, petition for prohibition with prayer for injunction and temporary
a third-party complaint is a claim that a defending party may, with leave restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may have
of court, file against a person not a party to the action for contribution, proceeded upon an honest belief that if he finds succor in a superior
indemnity, subrogation or any other relief, in respect of his opponent's court, he could be granted an injunctive relief. However, Section 22(j) of
claim.52As pointed out by Justice Teresita J. Leonardo-De Castro, the A.M. No. 04-10-11-SC expressly disallows the filing of a petition for
unconstitutionality of a statute is not a cause of action that could be the certiorari, mandamus or prohibition against any interlocutory order
subject of a counterclaim, cross-claim or a third-party complaint. issued by the trial court. Hence, the 60-day TRO issued by the appellate
Therefore, it is not prohibited from being raised in the opposition in view court in this case against the enforcement of the TPO, the amended
of the familiar maxim expressio unius est exclusio alterius. TPOs and other orders pursuant thereto was improper, and it effectively
hindered the case from taking its normal course in an expeditious and
Moreover, it cannot be denied that this issue affects the resolution of the
summary manner.
case a quo because the right of private respondent to a protection order
is founded solely on the very statute the validity of which is being As the rules stand, a review of the case by appeal or certiorari before
attacked53 by petitioner who has sustained, or will sustain, direct injury judgment is prohibited. Moreover, if the appeal of a judgment granting
as a result of its enforcement. The alleged unconstitutionality of R.A. permanent protection shall not stay its enforcement,55 with more reason
9262 is, for all intents and purposes, a valid cause for the non-issuance that a TPO, which is valid only for thirty (30) days at a time,56 should
of a protection order. not be enjoined.
That the proceedings in Civil Case No. 06-797 are summary in nature The mere fact that a statute is alleged to be unconstitutional or invalid,
should not have deterred petitioner from raising the same in his does not of itself entitle a litigant to have the same enjoined.57 In
Opposition. The question relative to the constitutionality of a statute is Younger v. Harris, Jr.,58 the Supreme Court of the United States
one of law which does not need to be supported by evidence.54 Be that declared, thus:
as it may, Section 25 of A.M. No. 04-10-11-SC nonetheless allows the
Federal injunctions against state criminal statutes, either in their entirety
conduct of a hearing to determine legal issues, among others, viz:
or with respect to their separate and distinct prohibitions, are not to be
SEC. 25. Order for further hearing. - In case the court determines the granted as a matter of course, even if such statutes are unconstitutional.
need for further hearing, it may issue an order containing the following: No citizen or member of the community is immune from prosecution, in
good faith, for his alleged criminal acts. The imminence of such a
(a) Facts undisputed and admitted;
prosecution even though alleged to be unauthorized and, hence,
(b) Factual and legal issues to be resolved; unlawful is not alone ground for relief in equity which exerts its
extraordinary powers only to prevent irreparable injury to the plaintiff
(c) Evidence, including objects and documents that have been marked who seeks its aid. (Citations omitted)
and will be presented;
The sole objective of injunctions is to preserve the status quo until the
(d) Names of witnesses who will be ordered to present their direct trial court hears fully the merits of the case. It bears stressing, however,
testimonies in the form of affidavits; and that protection orders are granted ex parte so as to protect women and
their children from acts of violence. To issue an injunction against such
(e) Schedule of the presentation of evidence by both parties which shall
orders will defeat the very purpose of the law against VAWC.
be done in one day, to the extent possible, within the 30-day period of
the effectivity of the temporary protection order issued. (Emphasis Notwithstanding all these procedural flaws, we shall not shirk from our
supplied) obligation to determine novel issues, or issues of first impression, with
far-reaching implications. We have, time and again, discharged our
solemn duty as final arbiter of constitutional issues, and with more
reason now, in view of private respondent's plea in her Comment59 to Senator Estrada. Yes, Mr. President.
the instant Petition that we should put the challenge to the
As a matter of fact, that was brought up by Senator Pangilinan during
constitutionality of R.A. 9262 to rest. And so we shall.
the interpellation period.
Intent of Congress in enacting R.A. 9262.
I think Senator Sotto has something to say to that.
Petitioner claims that since R.A. 9262 is intended to prevent and
Senator Legarda. Mr. President, the reason I am in support of the
criminalize spousal and child abuse, which could very well be committed
measure. Do not get me wrong. However, I believe that there is a need
by either the husband or the wife, gender alone is not enough basis to
to protect women's rights especially in the domestic environment.
deprive the husband/father of the remedies under the law.60
victims really are the wives, the spouses or the female partners in a came up with this bill because the family members have been included
relationship. We would like to place that on record. How does the good in this proposed measure since the other members of the family other
Senator respond to this kind of observation? than women are also possible victims of violence. While women are
most likely the intended victims, one reason incidentally why the
Senator Estrada. Yes, Mr. President, there is this group of women who measure focuses on women, the fact remains that in some relatively few
call themselves "WIIR" Women in Intimate Relationship. They do not cases, men also stand to be victimized and that children are almost
want to include men in this domestic violence. But plenty of men are also always the helpless victims of violence. I am worried that there may not
being abused by women. I am playing safe so I placed here members be enough protection extended to other family members particularly
of the family, prescribing penalties therefor and providing protective children who are excluded. Although Republic Act No. 7610, for
measures for victims. This includes the men, children, live-in, common- instance, more or less, addresses the special needs of abused children.
law wives, and those related with the family.65 The same law is inadequate. Protection orders for one are not available
in said law.
xxx
I am aware that some groups are apprehensive about granting the same
Wednesday, January 14, 2004
protection to men, fearing that they may use this law to justify their
xxxx abusive behavior against women. However, we should also recognize
that there are established procedures and standards in our courts which
The President Pro Tempore. x x x
give credence to evidentiary support and cannot just arbitrarily and
Also, may the Chair remind the group that there was the discussion whimsically entertain baseless complaints.
whether to limit this to women and not to families which was the issue of
Mr. President, this measure is intended to harmonize family relations
the AWIR group. The understanding that I have is that we would be
and to protect the family as the basic social institution. Though I
having a broader scope rather than just women, if I remember correctly,
recognize the unequal power relations between men and women in our
Madam sponsor.
society, I believe we have an obligation to uphold inherent rights and
dignity of both husband and wife and their immediate family members, children being abused by their fathers, even by their mothers. And it
particularly children. breaks my heart to find out about these things.
While I prefer to focus mainly on women, I was compelled to include Because of the inadequate existing law on abuse of children, this
other family members as a critical input arrived at after a series of particular measure will update that. It will enhance and hopefully prevent
consultations/meetings with various NGOs, experts, sports groups and the abuse of children and not only women.
other affected sectors, Mr. President.
SOTTO-LEGARDA AMENDMENTS
Senator Sotto. Mr. President.
Therefore, may I propose an amendment that, yes, we remove the
The President Pro Tempore. Yes, with the permission of the other aspect of the men in the bill but not the children.
senators.
Senator Legarda. I agree, Mr. President, with the Minority Leader.
Senator Sotto. Yes, with the permission of the two ladies on the Floor.
The President Pro Tempore. Effectively then, it will be women AND
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is CHILDREN.
recognized.
Senator Sotto. Yes, Mr. President.
Senator Sotto. I presume that the effect of the proposed amendment of
Senator Estrada. It is accepted, Mr. President.
Senator Legarda would be removing the "men and children" in this
particular bill and focus specifically on women alone. That will be the net The President Pro Tempore. Is there any objection? [Silence] There
effect of that proposed amendment. Hearing the rationale mentioned by being none, the amendment, as amended, is approved.66
the distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not
sure now whether she is inclined to accept the proposed amendment of It is settled that courts are not concerned with the wisdom, justice, policy,
Senator Legarda. or expediency of a statute.67 Hence, we dare not venture into the real
motivations and wisdom of the members of Congress in limiting the
I am willing to wait whether she is accepting this or not because if she is protection against violence and abuse under R.A. 9262 to women and
going to accept this, I will propose an amendment to the amendment children only. No proper challenge on said grounds may be entertained
rather than object to the amendment, Mr. President. in this proceeding. Congress has made its choice and it is not our
prerogative to supplant this judgment. The choice may be perceived as
xxxx
erroneous but even then, the remedy against it is to seek its amendment
Senator Estrada. The amendment is accepted, Mr. President. or repeal by the legislative. By the principle of separation of powers, it is
the legislative that determines the necessity, adequacy, wisdom and
The President Pro Tempore. Is there any objection?
expediency of any law.68 We only step in when there is a violation of
xxxx the Constitution. However, none was sufficiently shown in this case.
Senator Sotto. x x x May I propose an amendment to the amendment. R.A. 9262 does not violate the guaranty of equal protection of the laws.
The President Pro Tempore. Before we act on the amendment? Equal protection simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and
Senator Sotto. Yes, Mr. President. responsibilities imposed. The oft-repeated disquisition in the early case
of Victoriano v. Elizalde Rope Workers' Union69 is instructive:
The President Pro Tempore. Yes, please proceed.
Measured against the foregoing jurisprudential yardstick, we find that The Roman concept of patria potestas allowed the husband to beat, or
R.A. 9262 is based on a valid classification as shall hereinafter be even kill, his wife if she endangered his property right over her. Judaism,
discussed and, as such, did not violate the equal protection clause by Christianity and other religions oriented towards the patriarchal family
favoring women over men as victims of violence and abuse to whom the strengthened the male dominated structure of society.
State extends its protection.
English feudal law reinforced the tradition of male control over women.
I. R.A. 9262 rests on substantial distinctions. Even the eminent Blackstone has been quoted in his commentaries as
saying husband and wife were one and that one was the husband.
The unequal power relationship between women and men; the fact that
However, in the late 1500s and through the entire 1600s, English
women are more likely than men to be victims of violence; and the
common law began to limit the right of husbands to chastise their wives.
widespread gender bias and prejudice against women all make for real
Thus, common law developed the rule of thumb, which allowed
differences justifying the classification under the law. As Justice
husbands to beat their wives with a rod or stick no thicker than their
McIntyre succinctly states, "the accommodation of differences ... is the
thumb.
essence of true equality."70
In the later part of the 19th century, legal recognition of these rights to
A. Unequal power relationship between men and women
chastise wives or inflict corporeal punishment ceased. Even then, the
According to the Philippine Commission on Women (the National preservation of the family was given more importance than preventing
Machinery for Gender Equality and Women's Empowerment), violence violence to women.
against women (VAW) is deemed to be closely linked with the unequal
The metamorphosis of the law on violence in the United States followed
power relationship between women and men otherwise known as
that of the English common law. In 1871, the Supreme Court of Alabama
"gender-based violence". Societal norms and traditions dictate people to
became the first appellate court to strike down the common law right of
think men are the leaders, pursuers, providers, and take on dominant
a husband to beat his wife:
roles in society while women are nurturers, men's companions and
supporters, and take on subordinate roles in society. This perception The privilege, ancient though it may be, to beat one's wife with a stick,
leads to men gaining more power over women. With power comes the to pull her hair, choke her, spit in her face or kick her about the floor, or
need to control to retain that power. And VAW is a form of men's to inflict upon her like indignities, is not now acknowledged by our law...
expression of controlling women to retain power.71 In person, the wife is entitled to the same protection of the law that the
husband can invoke for himself.
The United Nations, which has long recognized VAW as a human rights
issue, passed its Resolution 48/104 on the Declaration on Elimination of As time marched on, the women's advocacy movement became more
Violence Against Women on December 20, 1993 stating that "violence organized. The temperance leagues initiated it. These leagues had a
against women is a manifestation of historically unequal power relations simple focus. They considered the evils of alcoholism as the root cause
between men and women, which have led to domination over and of wife abuse. Hence, they demonstrated and picketed saloons, bars
discrimination against women by men and to the prevention of the full and their husbands' other watering holes. Soon, however, their crusade
advancement of women, and that violence against women is one of the was joined by suffragette movements, expanding the liberation
crucial social mechanisms by which women are forced into subordinate movement's agenda. They fought for women's right to vote, to own
positions, compared with men."72 property, and more. Since then, the feminist movement was on the roll.
The feminist movement exposed the private invisibility of the domestic nation building and to ensure the fundamental equality before the law of
violence to the public gaze. They succeeded in transforming the issue women and men. Our Senate has ratified the CEDAW as well as the
into an important public concern. No less than the United States Convention on the Rights of the Child and its two protocols. To cap it all,
Supreme Court, in 1992 case Planned Parenthood v. Casey, noted: Congress, on March 8, 2004, enacted Rep. Act No. 9262, entitled "An
Act Defining Violence Against Women and Their Children, Providing for
In an average 12-month period in this country, approximately two million
Protective Measures for Victims, Prescribing Penalties therefor and for
women are the victims of severe assaults by their male partners. In a
other Purposes." (Citations omitted)
1985 survey, women reported that nearly one of every eight husbands
had assaulted their wives during the past year. The [American Medical B. Women are the "usual" and "most likely"
Association] views these figures as "marked underestimates," because
victims of violence.
the nature of these incidents discourages women from reporting them,
and because surveys typically exclude the very poor, those who do not At the time of the presentation of Senate Bill No. 2723, official statistics
speak English well, and women who are homeless or in institutions or on violence against women and children show that
hospitals when the survey is conducted. According to the AMA,
"researchers on family violence agree that the true incidence of partner x x x physical injuries had the highest number of cases at 5,058 in 2002
violence is probably double the above estimates; or four million severely representing 55.63% of total cases reported (9,903). And for the first
assaulted women per year." semester of 2003, there were 2,381 reported cases out of 4,354 cases
which represent 54.31%. xxx (T)he total number of women in especially
Studies on prevalence suggest that from one-fifth to one-third of all difficult circumstances served by the Department of Social Welfare and
women will be physically assaulted by a partner or ex-partner during Development (DSWD) for the year 2002, there are 1,417 physically
their lifetime... Thus on an average day in the United States, nearly abused/maltreated cases out of the total of 5,608 cases. xxx (T)here are
11,000 women are severely assaulted by their male partners. Many of 1,091 DSWD cases out of a total number of 3,471 cases for the first
these incidents involve sexual assault... In families where wife beating semester of 2003. Female violence comprised more than 90% of all
takes place, moreover, child abuse is often present as well. forms of abuse and violence and more than 90% of these reported cases
were committed by the women's intimate partners such as their
Other studies fill in the rest of this troubling picture. Physical violence is
husbands and live-in partners.73
only the most visible form of abuse. Psychological abuse, particularly
forced social and economic isolation of women, is also common. Recently, the Philippine Commission on Women presented comparative
statistics on violence against women across an eight-year period from
Many victims of domestic violence remain with their abusers, perhaps
2004 to August of 2011 with violations under R.A. 9262 ranking first
because they perceive no superior alternative...Many abused women
among the different VAW categories since its implementation in
who find temporary refuge in shelters return to their husbands, in large
2004,74 thus:
part because they have no other source of income... Returning to one's
abuser can be dangerous. Recent Federal Bureau of Investigation Table 1. Annual Comparative Statistics on Violence Against Women,
statistics disclose that 8.8 percent of all homicide victims in the United 2004 - 2011*
States are killed by their spouses...Thirty percent of female homicide
victims are killed by their male partners.
Reported
2004 2005 2006 2007 2008 2009 2010
Finally in 1994, the United States Congress enacted Cases
the Violence
Against Women Act.
In the International front, the women's struggle for equality was no less
successful. The United States Charter and the Universal RapeDeclaration of 997 927 659 837 811 770 1,042
Human Rights affirmed the equality of all human beings. In 1979, the
UN General Assembly adopted the landmark Convention on the
Elimination of all Forms of Discrimination Against WomenIncestuous
(CEDAW).Rape
In 38 46 26 22 28 27 19
1993, the UN General Assembly also adopted the Declaration on the
Elimination of Violence Against Women. World conferences on the role
and rights of women have been regularly held in Mexico City,
Attempted Rape 194 148 185 147 204 167 268
Copenhagen, Nairobi and Beijing. The UN itself established a
Commission on the Status of Women.
The Philippines has been in cadence with the half and full steps of
all these women's movements. No less than Section 14, Article II of our
1987 Constitution mandates the State to recognize the role of women in
who had experienced 4 or more incidents of domestic
of violence.75Statistics in Canada show that spousal violence by a woman
580 536 382 358 445 485 745 625
ss against a man is less likely to cause injury than the other way around
(18 percent versus 44 percent). Men, who experience violence from their
spouses are much less likely to live in fear of violence at the hands of
their spouses, and much less likely to experience sexual assault. In fact,
3,553 2,335 1,892 1,505 1,307 1,498 2,018 1,588
many cases of physical violence by a woman against a spouse are in
self-defense or the result of many years of physical or emotional
abuse.76
While there are, indeed, relatively few cases of violence and abuse
53 37 38 46 18 54 83 63
perpetrated against men in the Philippines, the same cannot render R.A.
9262 invalid.
The ordinance was upheld as a valid classification for the reason that,
while there may be non-vehicle-drawing animals that also traverse the
121 102 93 109 109 99 158 city roads,
128 "but their number must be negligible and their appearance
therein merely occasional, compared to the rig-drawing ones, as not to
constitute a menace to the health of the community."77 The mere fact
that the legislative classification may result in actual inequality is not
17 11 16 24 34 152 190 62
violative of the right to equal protection, for every classification of
persons or things for regulation by law produces inequality in some
degree, but the law is not thereby rendered invalid.78
16 34 23 28 18 25 22
9 C. Gender bias and prejudices
From the initial report to the police through prosecution, trial, and
sentencing, crimes against women are often treated differently and less
on 90 50 59 59 83 703 183 155than other crimes. This was argued by then United States
seriously
Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the
Violence Against Women Act (VAWA), in defending the civil rights
Source: Philippine National Police Women and Children Protection to "double victimization" first at the hands of the offender and then of
On the other hand, no reliable estimates may be obtained on domestic Our own Senator Loi Estrada lamented in her Sponsorship Speech for
abuse and violence against men in the Philippines because incidents Senate Bill No. 2723 that "(w)henever violence occurs in the family, the
thereof are relatively low and, perhaps, because many men will not even police treat it as a private matter and advise the parties to settle the
attempt to report the situation. In the United Kingdom, 32% of women conflict themselves. Once the complainant brings the case to the
who had ever experienced domestic violence did so four or five (or more) prosecutor, the latter is hesitant to file the complaint for fear that it might
times, compared with 11% of the smaller number of men who had ever later be withdrawn. This lack of response or reluctance to be involved by
experienced domestic violence; and women constituted 89% of all those the police and prosecution reinforces the escalating, recurring and often
serious nature of domestic violence."80
Sadly, our own courts, as well, have exhibited prejudices and biases women equality with men before the law87 and shall take all appropriate
against our women. measures to eliminate discrimination against women in all matters
relating to marriage and family relations on the basis of equality of men
In a recent case resolved on March 9, 2011, we fined RTC Judge
and women.88 The Philippines likewise ratified the Convention on the
Venancio J. Amila for Conduct Unbecoming of a Judge. He used
Rights of the Child and its two protocols.89 It is, thus, bound by said
derogatory and irreverent language in reference to the complainant in a
Conventions and their respective protocols.
petition for TPO and PPO under R.A. 9262, calling her as "only a live-in
partner" and presenting her as an "opportunist" and a "mistress" in an III. The classification is not limited to existing
"illegitimate relationship." Judge Amila even called her a "prostitute," and
conditions only, and apply equally to all members
accused her of being motivated by "insatiable greed" and of absconding
with the contested property.81 Such remarks betrayed Judge Amila's Moreover, the application of R.A. 9262 is not limited to the existing
prejudices and lack of gender sensitivity. conditions when it was promulgated, but to future conditions as well, for
as long as the safety and security of women and their children are
The enactment of R.A. 9262 aims to address the discrimination brought
threatened by violence and abuse.
about by biases and prejudices against women. As emphasized by the
CEDAW Committee on the Elimination of Discrimination against R.A. 9262 applies equally to all women and children who suffer violence
Women, addressing or correcting discrimination through specific and abuse. Section 3 thereof defines VAWC as:
measures focused on women does not discriminate against
men.82Petitioner's contention,83 therefore, that R.A. 9262 is x x x any act or a series of acts committed by any person against a
discriminatory and that it is an "anti-male," "husband-bashing," and woman who is his wife, former wife, or against a woman with whom the
"hate-men" law deserves scant consideration. As a State Party to the person has or had a sexual or dating relationship, or with whom he has
CEDAW, the Philippines bound itself to take all appropriate measures a common child, or against her child whether legitimate or illegitimate,
"to modify the social and cultural patterns of conduct of men and women, within or without the family abode, which result in or is likely to result in
with a view to achieving the elimination of prejudices and customary and physical, sexual, psychological harm or suffering, or economic abuse
all other practices which are based on the idea of the inferiority or the including threats of such acts, battery, assault, coercion, harassment or
superiority of either of the sexes or on stereotyped roles for men and arbitrary deprivation of liberty. It includes, but is not limited to, the
women."84 Justice Puno correctly pointed out that "(t)he paradigm shift following acts:
SEC. 2. Declaration of Policy. It is hereby declared that the State forcing the woman or her child to do indecent acts and/or make films
values the dignity of women and children and guarantees full respect for thereof, forcing the wife and mistress/lover to live in the conjugal home
human rights. The State also recognizes the need to protect the family or sleep together in the same room with the abuser;
and its members particularly women and children, from violence and
b) acts causing or attempting to cause the victim to engage in any sexual
threats to their personal safety and security.
activity by force, threat of force, physical or other harm or threat of
Towards this end, the State shall exert efforts to address violence physical or other harm or coercion;
4. controlling the victims' own money or properties or solely controlling practically no opportunity to respond, the husband is stripped of family,
the conjugal money or properties. property, guns, money, children, job, future employment and reputation,
all in a matter of seconds, without an inkling of what happened."95
It should be stressed that the acts enumerated in the aforequoted
provision are attributable to research that has exposed the dimensions A protection order is an order issued to prevent further acts of violence
and dynamics of battery. The acts described here are also found in the against women and their children, their family or household members,
U.N. Declaration on the Elimination of Violence Against and to grant other necessary reliefs. Its purpose is to safeguard the
Women.90 Hence, the argument advanced by petitioner that the offended parties from further harm, minimize any disruption in their daily
definition of what constitutes abuse removes the difference between life and facilitate the opportunity and ability to regain control of their
violent action and simple marital tiffs is tenuous. life.96
There is nothing in the definition of VAWC that is vague and ambiguous "The scope of reliefs in protection orders is broadened to ensure that the
that will confuse petitioner in his defense. The acts enumerated above victim or offended party is afforded all the remedies necessary to curtail
are easily understood and provide adequate contrast between the access by a perpetrator to the victim. This serves to safeguard the victim
innocent and the prohibited acts. They are worded with sufficient from greater risk of violence; to accord the victim and any designated
definiteness that persons of ordinary intelligence can understand what family or household member safety in the family residence, and to
conduct is prohibited, and need not guess at its meaning nor differ in its prevent the perpetrator from committing acts that jeopardize the
application.91 Yet, petitioner insists92that phrases like "depriving or employment and support of the victim. It also enables the court to award
threatening to deprive the woman or her child of a legal right," "solely temporary custody of minor children to protect the children from
controlling the conjugal or common money or properties," "marital violence, to prevent their abduction by the perpetrator and to ensure
infidelity," and "causing mental or emotional anguish" are so vague that their financial support."97
they make every quarrel a case of spousal abuse. However, we have
The rules require that petitions for protection order be in writing, signed
stressed that the "vagueness" doctrine merely requires a reasonable
and verified by the petitioner98 thereby undertaking full responsibility,
degree of certainty for the statute to be upheld not absolute precision
criminal or civil, for every allegation therein. Since "time is of the essence
or mathematical exactitude, as petitioner seems to suggest. Flexibility,
in cases of VAWC if further violence is to be prevented,"99 the court is
rather than meticulous specificity, is permissible as long as the metes
authorized to issue ex parte a TPO after raffle but before notice and
and bounds of the statute are clearly delineated. An act will not be held
hearing when the life, limb or property of the victim is in jeopardy and
invalid merely because it might have been more explicit in its wordings
there is reasonable ground to believe that the order is necessary to
or detailed in its provisions.93
protect the victim from the immediate and imminent danger of VAWC or
There is likewise no merit to the contention that R.A. 9262 singles out to prevent such violence, which is about to recur.100
the husband or father as the culprit. As defined above, VAWC may
There need not be any fear that the judge may have no rational basis to
likewise be committed "against a woman with whom the person has or
issue an ex parte order. The victim is required not only to verify the
had a sexual or dating relationship." Clearly, the use of the gender-
allegations in the petition, but also to attach her witnesses' affidavits to
neutral word "person" who has or had a sexual or dating relationship
the petition.101
with the woman encompasses even lesbian relationships. Moreover,
while the law provides that the offender be related or connected to the The grant of a TPO ex parte cannot, therefore, be challenged as violative
victim by marriage, former marriage, or a sexual or dating relationship, of the right to due process. Just like a writ of preliminary attachment
it does not preclude the application of the principle of conspiracy under which is issued without notice and hearing because the time in which
the Revised Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses the hearing will take could be enough to enable the defendant to
abscond or dispose of his property,102 in the same way, the victim of Petitioner next laments that the removal and exclusion of the respondent
VAWC may already have suffered harrowing experiences in the hands in the VAWC case from the residence of the victim, regardless of
of her tormentor, and possibly even death, if notice and hearing were ownership of the residence, is virtually a "blank check" issued to the wife
required before such acts could be prevented. It is a constitutional to claim any property as her conjugal home.108
commonplace that the ordinary requirements of procedural due process
The wording of the pertinent rule, however, does not by any stretch of
must yield to the necessities of protecting vital public
the imagination suggest that this is so. It states:
interests,103among which is protection of women and children from
violence and threats to their personal safety and security. SEC. 11. Reliefs available to the offended party. -- The protection order
shall include any, some or all of the following reliefs:
It should be pointed out that when the TPO is issued ex parte, the court
shall likewise order that notice be immediately given to the respondent xxxx
directing him to file an opposition within five (5) days from service.
Moreover, the court shall order that notice, copies of the petition and (c) Removing and excluding the respondent from the residence of the
TPO be served immediately on the respondent by the court sheriffs. The offended party, regardless of ownership of the residence, either
TPOs are initially effective for thirty (30) days from service on the temporarily for the purpose of protecting the offended party, or
The opposition to the petition which the respondent himself shall verify, Indubitably, petitioner may be removed and excluded from private
must be accompanied by the affidavits of witnesses and shall show respondent's residence, regardless of ownership, only temporarily for
cause why a temporary or permanent protection order should not be the purpose of protecting the latter. Such removal and exclusion may be
issued.106 permanent only where no property rights are violated. How then can the
private respondent just claim any property and appropriate it for herself,
It is clear from the foregoing rules that the respondent of a petition for as petitioner seems to suggest?
protection order should be apprised of the charges imputed to him and
afforded an opportunity to present his side. Thus, the fear of petitioner The non-referral of a VAWC case
of being "stripped of family, property, guns, money, children, job, future to a mediator is justified.
We have held that "(t)he mere fact that an officer is required by law to WE CONCUR:
inquire into the existence of certain facts and to apply the law thereto in
MARIA LOURDES P. A. SERENO
order to determine what his official conduct shall be and the fact that
Chief Justice
these acts may affect private rights do not constitute an exercise of
judicial powers."115
PRESBITERO J.
ANTONIO T. CARPIO
In the same manner as the public prosecutor ascertains through a VELASCO, JR.
Associate Justice
preliminary inquiry or proceeding "whether there is reasonable ground Associate Justice
to believe that an offense has been committed and the accused is
probably guilty thereof," the Punong Barangay must determine
reasonable ground to believe that an imminent danger of violence
5 Section 3(a), R.A. 9262.
See separate concurring
opinion: See: Concurring Opinion 6 Rollo, pp. 63-83.
TERESITA J. ARTURO D. BRION
7 Id. at 66-67.
LEONARDO-DE CASTRO Associate Justice
Associate Justice 8 Id. at 64.
9 Id. at 67-68.
On official leave
LUCAS P. BERSAMIN 10 Id. at 68-70.
DIOSDADO M. PERALTA*
Associate Justice
Associate Justice 11 Id. at 70-71.
12 Id. at 72.
See Separate Concurring
MARIANO C. DEL 13 Id. at 73.
Opinion
CASTILLO
ROBERTO A. ABAD 14 Id. at 74.
Associate Justice
Associate Justice
15 Id. at 65-66.
16 Id. at 66.
MARTIN S. VILLARAMA,
JOSE PORTUGAL PEREZ
JR. 17 Id. at 70.
Associate Justice
Associate Justice
18 Id. at 84-87.
I certify that the conclusions in the above Decision had been reached in 24 Id. at 154-166.
consultation before the case was assigned to the writer of the opinion of
25 Id. at 156.
the Court.
26 Id. at 157.
MARIA LOURDES P. A. SERENO
Chief Justice 27 Id. at 158-159.
28 Id. at 167-174.
29 Id. at 182.
Footnotes
30 Id. at 183-184.
* On official leave.
31 Id. at 185.
1 "Philippines still top Christian country in Asia, 5th in world," Philippine
32 Id. at 186-187.
Daily Inquirer, December 21, 2011.
34 Id. at 104-137.
3 RATIONALE OF THE PROPOSED RULE ON VIOLENCE AGAINST
WOMEN AND THEIR CHILDREN, citing statistics furnished by the 35 Id. at 151-152.
National Commission on the Role of Filipino Women.
4 Id.
36 Decision dated January 24, 2007. Penned by Associate Justice Producers Federation, Inc. (COCOFED) v. Republic, G.R. Nos. 177857-
Priscilla Baltazar-Padilla, with Associate Justices Arsenio J. Magpale 58, January 24, 2012, 663 SCRA 514, 594.
and Romeo F. Barza, concurring. Id. at 47-57.
54 Recreation and Amusement Association of the Philippines v. City of
37 Id. at 60-61. Manila, 100 Phil 950, 956 (1957).
39 ABS-CBN Broadcasting Corporation v. Philippine Multi-Media 56 Sec. 26 (b), A.M. No. 04-10-11-SC.
System, Inc., G.R. Nos. 175769-70, January 19, 2009, 576 SCRA 262,
57 Sto. Domingo v. De Los Angeles, 185 Phil. 94, 102 (1980).
289.
58 27 L.Ed.2d 669 (1971), cited in The Executive Secretary v. Court of
40 Philippine National Bank v. Palma, 503 Phil. 917, 932 (2005).
Appeals, 473 Phil. 27, 56-57 (2004).
41 Petition, rollo, p. 24.
59 Rollo, pp. 214-240, 237.
42 SEC. 5. Jurisdiction of Family Courts. - The Family Courts shall have
60 Petition, id. at 26-27.
exclusive original jurisdiction to hear and decide the following cases:
61 An Act Defining Violence Against Women and Members of the
xxxx
Family, Prescribing Penalties Therefor, Providing for Protective
k) Cases of domestic violence against: Measures for Victims and for Other Purposes.
1) Women - which are acts of gender based violence that results, or are 62 Congressional Records, Vol. III, No. 45, December 10, 2003, p. 27.
likely to result in physical, sexual or psychological harm or suffering to
63 Id. at 25.
women; and other forms of physical abuse such as battering or threats
and coercion which violate a woman's personhood, integrity and 64 Id. at 27.
freedom movement; and
65 Id. at 43-44.
2) Children - which include the commission of all forms of abuse,
neglect, cruelty, exploitation, violence, and discrimination and all other 66 Congressional Records, Vol. III, No. 51, January 14, 2004, pp. 141-
43 Sec. 17, R.A. 8369. 67 Lawyers Against Monopoly and Poverty (LAMP) v. The Secretary of
Budget and Management, G.R. No. 164987, April 24, 2012, 670 SCRA
44 Manalo v. Mariano, 161 Phil. 108, 120 (1976). 373, 391.
45 Planters Products, Inc. v. Fertiphil Corporation, G.R. No. 166006, 68 Garcia v. Commission on Elections, G.R. No. 111511, October 5,
March 14, 2008, 548 SCRA 485, 504. 1993, 227 SCRA 100, 113-114.
46 Drilon v. Lim, G.R. No. 112497, August 4, 1994, 235 SCRA 135, 140. 69 158 Phil. 60, 86-87 (1974).
47 Planters Products, Inc. v. Fertiphil Corporation, supra note 45, at 505, 70 Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, p.
citing Mirasol v. CA, 403 Phil. 760 (2001). 169.
48 G.R. Nos. L-18128 & L-18672, December 26, 1961, 3 SCRA 696, 71 Philippine Commission on Women, National Machinery for Gender
703-704. Equality and Women's Empowerment, "Violence Against Women
(VAW)," <http://www.pcw.gov.ph> (visited November 16, 2012).
49 RATIONALE OF THE PROPOSED RULES ON VIOLENCE
AGAINST WOMEN AND THEIR CHILDREN. 72 <http://www.lawphil.net/international/treaties/dec_dec_1993.html>
(visited November 16, 2012).
50 Korea Exchange Bank v. Hon. Rogelio C. Gonzales, 496 Phil. 127,
143-144 (2005); Spouses Sapugay v. CA, 262 Phil. 506, 513 (1990). 73 As reported by Senator Loi Estrada in her Sponsorship Speech,
Congressional Records, Vol. III, No. 45, December 10, 2003, p. 22.
51 Sec. 8, Rule 6, 1997 Rules of Civil Procedure.
74 Philippine Commission on Women, "Statistics on Violence Against
52 Sec. 11, Rule 6, 1997 Rules of Civil Procedure.
Filipino Women," <http://pcw.gov.ph/statistics/201210/statistics-
53 See People of the Philippine Islands and Hongkong & Shanghai violence-against-filipino-women> (visited October 12, 2012).
Banking Corporation v. Vera, 65 Phil 199 (1937); Philippine Coconut
75 Women's Aid, "Who are the victims of domestic violence?," citing 98 Sec. 7, A.M. No. 04-10-11-SC.
Walby and Allen, 2004, <www.womensaid.org.uk/domestic-violence-
99 Supra note 49.
articles.asp? section=00010001002200410001&itemid= 1273 (visited
November 16, 2012). 100 Id.
76 Toronto District School Board, Facts and Statistics 101 Supra note 85.
<www.tdsb.on.ca/site/viewitem.asp?siteid=15&
menuid=23082&pageid=20007> (visited November 16, 2012). 102 Cuartero v. CA, G.R. No. 102448, August 5, 1992, 212 SCRA 260,
265.
77 People v. Solon, 110 Phil. 39, 41 (1960).
103 Laguna Lake Development Authority v. Court of Appeals, G.R. No.
78 Victoriano v. Elizalde Rope Workers' Union, supra note 69, 90. 110120, March 16, 1994, 231 SCRA 292, 307, citing Pollution
Adjudication Board v. Court of Appeals, G.R. No. 93891, March 11,
79 Biden, Jr., Joseph R., "The Civil Rights Remedy of the Violence
1991, 195 SCRA 112.
Against Women Act: A Defense," 37 Harvard Journal on Legislation 1
(Winter, 2000). 104 Sec. 15, A.M. No. 04-10-11-SC.
80 Congressional Records, Vol. III, No. 45, December 10, 2003, pp. 22- 105 Sec. 16, A.M. No. 04-10-11-SC.
23.
106 Sec. 20, A.M. No. 04-10-11-SC.
81 Benancillo v. Amila, A.M. No. RTJ-08-2149, March 9, 2011, 645
SCRA 1, 8. 107 Esperida v. Jurado, Jr., G.R. No. 172538, April 25, 2012, 671 SCRA
66, 74.
82 "General recommendation No. 25, on article 4, paragraph 1, of the
Convention on the Elimination of All Forms of Discrimination against 108 Petition, rollo, pp. 30-31.
88 Article 16.
116 Hacienda Luisita, Incorporated v. Presidential Agrarian Reform
89 Supra note 49. Council, G.R. No. 171101, July 5, 2011, 653 SCRA 154, 258.
91 Estrada v. Sandiganbayan, 421 Phil 290, 351-352 (2001). 118 Supra note 85.
- versus - AUSTRIA-MARTINEZ,
Before this Court is a Petition for Review under Rule 45 of the 1997
CALLEJO, SR., Rules of Civil Procedure, assailing the Decision[6] and
the Resolution[7] of the Court of Appeals (CA) dated 29 July 1996 and
TINGA, and
3 October 1996, respectively, in CA-G.R. CR No. 16413. The CA
CHICO-NAZARIO, JJ. affirmed with modification[8] the decision[9] rendered by the Regional
Trial Court (RTC), Branch 7 of Cebu City, finding Ciriaco Boy
Guingguing (petitioner) and Segundo Lim (Lim) guilty beyond
THE HONORABLE COURT reasonable doubt of the crime of libel. This petition for certiorari was filed
by petitioner alone, hence the verdict of guilt with respect to Lim had
OF APPEALS and THE already become final and executory.
September 30, 2005 This case originated from a criminal complaint for libel filed by Cirse
Choy Torralba (complainant) against Lim and petitioner under Criminal
x-------------------------------------------------------------------- x
Case No. CBU-26582. Complainant was a broadcast journalist who
DECISION handled two programs for radio stations DYLA and DYFX. The radio
stations were based in Cebu City but the programs were aired over a
TINGA, J.:
large portion of the Visayas and Mindanao.[10]
- Benjamin Franklin[1] the province of Bohol, as well as in the Visayas and Mindanao.[12] The
full text of the advertisement which was the basis of the
information[13] for libel reads:
FOR: MALICIOUS MISCHIEF ESTAFA CASE. Members of Cebu City Police Intelligence group under
Lt. Col. Eduardo Ricardo arrested last night a businessman (extreme
DATE FILED: MAY 10, 1979 left) for his alleged involvement in estafa case filed by APOCEMCO. Left
photo a member of the team serves the warrant of arrest order issued
COMPLAINANTS: DR. JOVENAL ALMENDRAS
by CEBU RTC Judge German Lee.
ADDRESS: ALMENDRAS ST., MABOLO, CEBU CITY
FOR : ESTAFA
COMPLAINANTS: MR. PIO Y. GO AND being arrested is clearly shown to be that of Cirse Choy Torralba,
followed by this caption.]
MRS. ROSALITA R. ROLDAN
ADDRESS:
On appeal, the CA modified the penalty imposed but it affirmed the existence of malice.[26]
Lest the impression be laid that criminal libel law was rendered extinct
Shortly after New York Times was promulgated, its principles were in regards to public officials, the Court made this important qualification
extended by the U.S. Supreme Court to criminal libel actions in Garrison in Garrison:
v. Louisiana.[51] The decision, also penned by Justice Brennan,
commented on the marked decline in the common resort to criminal libel
actions: The use of calculated falsehood, however, would put a different cast on
the constitutional question. Although honest utterance, even if
inaccurate, may further the fruitful exercise of the right of free speech, it
Where criticism of public officials is concerned, we see no merit in the does not follow that the lie, knowingly and deliberately published about
argument that criminal libel statutes serve interests distinct from those a public official, should enjoy a like immunity. At the time the First
secured by civil libel laws, and therefore should not be subject to the Amendment was adopted, as today, there were those unscrupulous
same limitations. At common law, truth was no defense to criminal libel. enough and skillful enough to use the deliberate or reckless falsehood
Although the victim of a true but defamatory publication might not have as an effective political tool to unseat the public servant or even topple
been unjustly damaged in reputation by the libel, the speaker was still an administration. That speech is used as a tool for political ends does
punishable since the remedy was designed to avert the possibility that not automatically bring it under the protective mantle of the Constitution.
the utterance would provoke an enraged victim to a breach of peace . . For the use of the known lie as a tool is at once with odds with the
. premises of democratic government and with the orderly manner in
which economic, social, or political change is to be effected.[55]
[However], preference for the civil remedy, which enabled the frustrated
victim to trade chivalrous satisfaction for damages, has substantially Another ruling crucial to the evolution of our understanding was Curtis
eroded the breach of peace justification for criminal libel laws. In fact, in Publishing Co. v. Butts,[56] which expanded the actual malice test to
earlier, more violent times, the civil remedy had virtually pre-empted the cover not just public officials, but also public figures. The U.S. Supreme
field of defamation; except as a weapon against seditious libel, the Court, speaking through Chief Justice Warren, stated that:
criminal prosecution fell into virtual desuetude.[52]
and statutes to reflect Alexander Hamiltons unsuccessfully urged ready access as public officials to mass media of communication, both
formula in People v. Croswell, liberalized the common-law rule denying to influence policy and to counter criticism of their views and activities.
Our citizenry has a legitimate and substantial interest in the conduct of receive and impart information and ideas without interference by public
such persons, and freedom of the press to engage in uninhibited debate authority and regardless of frontiers.[62] The European Court of Human
about their involvement in public issues and events is as crucial as it is Rights applied this provision in Lingens v. Austria,[63] in ruling that the
in the case of public officials. The fact that they are not amenable to the Republic of Austria was liable to pay monetary damages as just
restraints of the political process only underscores the legitimate and satisfaction to a journalist who was found guilty for defamation under the
substantial nature of the interest, since it means that public opinion may Austrian Criminal Code.[64] The European Court noted:
be the only instrument by which society can attempt to influence their
conduct.[57]
[Article 10] is applicable not only to information or ideas that are
favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb. Such are the
demands of that pluralism, tolerance and broadmindedness without
The public figure concept was later qualified in the case of Gertz v.
which there is no democratic society. . . . These principles are of
Welch, Inc.,[58] which held that a private person should be able to
particular importance as far as the press is concerned. Whilst the press
recover damages without meeting the New York Times standard.[59] In
must not overstep the bounds set, inter alia, for the protection of the
doing so, the US Supreme Court recognized the legitimate state interest
reputation of others, it is nevertheless incumbent on it to impart
in compensating private individuals for wrongful injury to reputation.[60]
information and ideas on political issues just as on those in other areas
of public interest. Not only does the press have the task of imparting
such information and ideas: the public also has the right to receive them.
The prominent American legal commentator, Cass Sunstein, has . . .[65]
summarized the current American trend in libel law as follows:
The Court has likewise extended the actual malice rule to apply not only
to public officials, but also to public
FISCAL ROCAMORA: Q: Did you inquire from the appropriate Court when you received a copy
of this to find out if it is true that these cases were filed against you?
Q Is it true that in fact, there was a criminal case No. R-43035 for
Malicious Mischief filed May 10, 1979, against you?
Q: You did not answer the question. Will you please answer.
A I really do not know about that accusation.
Q: The question is, did you inquire from the Court concerned whether
that case exist?
COURT: A: Yes.
Proceed.
Q When you came across the publication, did you check if in fact there Proceed.
was a case docketed with that number against you? Did you check?
A I did not.
ATTY. FLORIDO:
Q: Now, is it true that there was a criminal case against you for Estafa
docketed as criminal case No. 17984-R filed July 21, 1982 where the
complaints were Pio Go and Mrs. Rosalita Roldan?
Q: And you discovered that they were true that this was provisionally record of criminal cases appearing in Exhibit F-1, you have also been at
dismissed with reference to 14843-R for Serious Physical Injuries. You one time or another been accused of several other criminal cases both
made inquiries? in and out of the City of Cebu?
Q: And you also know that Dr. Jovenal Almendras your godfather in the Q: And in the Municipal Trial Court in Cities alone in Cebu City, you have
wedding had also filed a case of Malicious Mischief against you? the following per certificate which we marked as Exhibit 2. Criminal Case
Nos. 14843-R for Serious Physical Injuries, Torralba Cirse Choy; 17984-
A: I know but that was in the past.
R, for Estafa; Torralba Cirse R. R-43035 for Malicious Mischief. You will
confirm that the same Cirse Torralba and/or Choy Torralba and/or Cirse
R. Torralba mentioned in this certificate refer to your person?
Q: Yes, I know that that was in the past, but that is true?
A: Yes.
A: Yes.
Q: Now, aside from these criminal cases in the Municipal Trial Courts in
Q: So, there is nothing false so far as Exhibit F-1? Cities, in Cebu City, you also have 1, 2, 3, 4, 5, 6, 7, 8, 9 criminal cases
before the Regional Trial Court of Cebu per certificate that I marked as
A: There is no question about that but that is malicious.
Exhibit 3. Is that correct?
A: Yes, but all those cases have already been either acquitted or
Q: Let me see. On the lefthand side of the bottom it says. Not too long dismissed. I will present the certification.
ago, I received the following newspaper clippings courtesy of the Cebu
City concerned citizens. The caption story below tells all. If you know
who the businessman alluded to in the caption. Please do tells me and Q: Specifically, these cases has something to do with your character.
then, there is a photograph a reprint from Sun Star publication. Do you Let me count 1, 2, 3, 4, 5 cases for Estafa, the 6th case for issuance of
confirm that?[76] a bouncing check, the 7th case is a case for issuance of a bouncing
check; and the 9th is also for issuance of a bouncing check. You will
confirm that?
xxx
....
Q: But is it true that you were arrested per this photograph and I quote.
In a plush uptown hotel was disturbed by operatives (right) of the Cebu
City Police under Police Lieutenant Col. Eduardo Ricardo just to serve COURT: (to witness)
on the former a warrant of arrest issued by the Cebu RTC Judge
German Lee relative to the suit filed by Apocemco against a
businessman. Is it true that you were arrested?
Q: What happened to those cases?
A: Yes.
A: I was acquitted your Honor. I was acquitted in all those cases, some
are dismissed, and fortunately, your Honor, I do not have any
conviction.[77]
A: Yes.
From the foregoing, it is clear that there was nothing untruthful about
what was published in the Sunday Post. The criminal cases listed in the
advertisement as pending against the complainant had indeed been
Q: And you claimed that you have a good reputation and that good
filed. It may have been inconvenient for the complainant that these
reputation had been soiled by the accused in this case. Let me ask you
matters may have been divulged, yet such information hardly falls within
concerning your reputation then. Is it not a fact that aside from this
any realm of privacy complainant could invoke, since the pendency of defense, much more in the case when the statements in question
these criminal charges are actually matters of public record. address public issues or involve public figures.
The information, moreover, went into the very character and integrity of In ascertaining the degree of falsity that would constitute actual malice,
complainant to which his listening public has a very legitimate interest. the Court, citing New York Times, has even gone so far as
Complainant hosts a public affairs program, one which he himself acknowledging:
claimed was imbued with public character since it deals with corruptions
in government, corruptions by public officials, irregularities in
government in comrades.[78] By entering into this line of work,
complainant in effect gave the public a legitimate interest in his life. He
likewise gave them a stake in finding out if he himself had the integrity Even assuming that the contents of the articles are false, mere error,
and character to have the right to criticize others for their conduct. inaccuracy or even falsity alone does not prove actual malice. Errors or
misstatements are inevitable in any scheme of truly free expression and
debate. Consistent with good faith and reasonable care, the press
should not be held to account, to a point of suppression, for honest
In convicting the defendants, the lower courts paid particular heed to
mistakes or imperfections in the choice of language. There must be
Article 354 of the Revised Penal Code, which provides that every
some room for misstatement of fact as well as for misjudgment. Only by
defamatory imputation is presumed to be malicious, even if it be true, if
giving them much leeway and tolerance can they courageously and
no good intention and justifiable motive for making it is shown. We hold
effectively function as critical agencies in our democracy. In Bulletin
that this provision, as applied to public figures complaining of criminal
Publishing Corp. v. Noel we held
libel, must be construed in light of the constitutional guarantee of free
expression, and this Courts precedents upholding the standard of actual
malice with the necessary implication that a statement regarding a public
figure if true is not libelous. The provision itself allows for such leeway, A newspaper especially one national in reach and coverage, should be
accepting as a defense good intention and justifiable motive. The free to report on events and developments in which the public has a
exercise of free expression, and its concordant assurance of legitimate interest with minimum fear of being hauled to court by one
commentary on public affairs and public figures, certainly qualify as group or another on criminal or civil charges for libel, so long as the
justifiable motive, if not good intention. newspaper respects and keeps within the standards of morality and
civility prevailing within the general community.
SO ORDERED.
ATTESTATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairmans Attestation, it is hereby certified that the conclusions in the
above Decision had been reached in consultation before the case was [8]The Court of Appeals lowered the penalty imposed to TWO (2)
assigned to the writer of the opinion of the Courts Division. MONTHS and ONE (1) DAY of arresto mayor, as minimum to ONE (1)
YEAR, EIGHT (8) MONTHS and TWENTY-ONE (21) DAYS of prision
correccional as maximum.
HILARIO G. DAVIDE, JR. GUINGGING, GUILTY beyond reasonable doubt, as principals of the
crime of libel as charged in the information, defined and penalized in Art.
Chief Justice 353 in relation to Art. 355 of the Revised Penal Code, and hereby
sentences the said accused to a prison term of, ranging from, One (1)
year, Eight (8) months and Twenty-one (21) days as minimum to, Two
(2) years, Eleven (11) months and Eleven (11) days of prision
correccional, as maximum; to indemnify the complainant, damages in
the amount of P50,000.00 and to pay the costs.
SO ORDERED.
[11]The two photographs were reprinted from the Sun Star Daily and the
Freeman, newspapers of general circulation in Visayas and Mindanao.
[2]As a matter of fact, the principle is enshrined in Article 19 of the United
Nations Declaration of Human Rights: Everyone has the right to freedom
of opinion and expression; this right includes freedom to hold opinions
[12]Rollo, p. 15.
without interference and to seek, receive and impart information and
ideas through any media and regardless of frontiers.
[13]That on or about the 13th day of October, 1991, in the City of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the said
[3]See Section 4, Article III, CONSTITUTION.
accused, conniving and confederating together and mutually helping
each other, with deliberate intent, with intent to besmirch, dishonor or
discredit the person of one Cirse Choy Torralba and to place him in
[4]Article III, CONSTITUTION.
public contempt and ridicule, did then and there write and publish or
cause to be written and published on the Sunday Post, a newspaper of
wide circulation in the provinces of Cebu and Bohol on its issue on
[5]See People v. Tudtud, G.R. No. 144037, 26 September 2003, 412
October 13, 1991, specifically on page 8 thereof, the context of which is
SCRA 142, 168; Teves v. Sandiganbayan, G.R. No. 154182, 17
hereunder reproduced verbatim, as follows:
December 2004, 447 SCRA 309, 335, J. Tinga, dissenting.
....
[6]Penned by Associate Justice Eduardo G. Montenegro, concurred in
by Associate Justices Emeterio C. Cui and Jose C. De La Rama.
[7]Rollo, p. 27.
[14]Rollo, p. 13.
[15]RTC Records, p. 180. [30]Wagman, supra note 28 at 146.
[16]TSN, 19 November 1993, pp. 8-9; TSN, 20 January 1994, pp. 7-9. [31]Which reads: Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof,
abridging the freedom of speech, or of the press; or the right of the
[17]RTC Records, p. 183. people peaceably to assemble, and to petition the Government for
redress of grievances.
[18]Id. at 184.
[32]Kenneth Davis, DONT KNOW MUCH ABOUT HISTORY:
EVERYTHING YOU NEED TO KNOW ABOUT AMERICAN HISTORY
BUT NEVER LEARNED (1990), at 41.
[19]Supra. note 13.
[34]In 1801. More than one-hundred fifty years later, Justice Brennan
[21]Ibid.
noted in New York Times v. Sullivan, 376 U.S. 254 (1964), Although the
Sedition Act was never tested in this Court, the attack upon its validity
has carried the day in the court of history. Fines levied in its prosecution
[22]Rollo, p. 22.
were repaid by Act of Congress on the ground that it was
unconstitutional. Id. at 276.
[23]Id. at 6.
[37]Id. at 29.
[26]Vicario v. Court of Appeals, et. al., 367 Phil. 292, 297
(1990); citing Daez v. Court of Appeals, G.R. No. 47971, 31 October
1990, 191 SCRA 61, 67.
[38]See id. at 25.
[27]Supra note 24, citing Alfred H. Knight, THE LIFE OF THE LAW,
[39]See Records, pp. 184-185.
Crown Publishers, Inc., New York, 1996, pp. 102, 230 and 231.
[29]See Record of the Trial of John Peter Zenger (from Zengers 1736 [41]See Laurence H. Tribe, CONSTITUTIONAL CHOICES (1985), at
Narrative), at <http://www.law.umkc.edu/faculty/projects/ftrials/zenger/ 190.
zengerrecord.html> (Last visited, 27 September 2005).
[50]The U.S. Supreme Court held: A rule compelling the critic of official [60]Gertz v. Welch, Inc., supra note 58 at 348.
conduct to guarantee the truth of all his factual assertionsand to do so
on pain of libel judgments virtually unlimited in amountleads to a
comparable self-censorship. Allowance of the defense of truth, with the [61]Cass Sunstein, DEMOCRACY AND THE PROBLEM OF FREE
burden of proving it on the defendant, does not mean that only false SPEECH (1995 ed.) at 9-10.
speech will be deterred. New York Times v. Sullivan, supra note 45 at
279. Moreover, cited by way of footnote reference is the statement of
John Stuart Mill that Even a false statement may be deemed to make a [62]Article 10(1), EUROPEAN CONVENTION ON HUMAN RIGHTS
valuable contribution to the public debate, since it brings about the AND FUNDAMENTAL FREEDOMS.
clearer perception and livelier impression of truth, produced by its
collision with error.
[53]The phraseology, similarly adopted in Article 354 of the Revised [65]Lingens v. Austria, supra note 63, at par. 41.
Penal Code, was employed as a standard of defense for criminal libel in
several American states. See Footnote 7, Garrison v. Louisiana, ibid.
[71]G.R. Nos. 82380 and 82398, 29 April 1988, 160 SCRA 861.
DECISION
PUNO, J.:
I. Facts I recognize this relationship as a binding tie before Jehovah God and
before all persons to be held to and honored in full accord with the
The facts of the case will determine whether respondent will prevail in
principles of Gods Word. I will continue to seek the means to obtain legal
her plea of religious freedom. It is necessary therefore to lay down the
recognition of this relationship by the civil authorities and if at any future
facts in detail, careful not to omit the essentials.
time a change in circumstances make this possible, I promise to legalize
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro this union.
Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch
Signed this 28th day of July 1991.[10]
253, Regional Trial Court of Las Pias City, requesting for an investigation
of rumors that respondent Soledad Escritor, court interpreter in said Escritors partner, Quilapio, executed a similar pledge on the same
court, is living with a man not her husband. They allegedly have a child day.[11] Both pledges were executed in Atimonan, Quezon and signed
of eighteen to twenty years old. Estrada is not personally related either by three witnesses. At the time Escritor executed her pledge, her
to Escritor or her partner and is a resident not of Las Pias City but of husband was still alive but living with another woman. Quilapio was
Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he likewise married at that time, but had been separated in fact from his
believes that she is committing an immoral act that tarnishes the image wife. During her testimony, Escritor volunteered to present members of
of the court, thus she should not be allowed to remain employed therein her congregation to confirm the truthfulness of their Declarations of
as it might appear that the court condones her act.[5] Pledging Faithfulness, but Judge Caoibes deemed it unnecessary and
considered her identification of her signature and the signature of
Judge Caoibes referred the letter to Escritor who stated that there is no
Quilapio sufficient authentication of the documents.[12]
truth as to the veracity of the allegation and challenged Estrada to
appear in the open and prove his allegation in the proper Judge Caoibes endorsed the complaint to Executive Judge Manuel B.
forum.[6] Judge Caoibes set a preliminary conference on October 12, Fernandez, Jr., who, in turn, endorsed the same to Court Administrator
2000.Escritor moved for the inhibition of Judge Caoibes from hearing Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation
her case to avoid suspicion and bias as she previously filed an of Acting Court Administrator Zenaida N. Elepao, directed Escritor to
administrative complaint against him and said case was still pending in comment on the charge against her. In her comment, Escritor reiterated
the Office of the Court Administrator (OCA). Escritors motion was her religious congregations approval of her conjugal arrangement with
denied. The preliminary conference proceeded with both Estrada and Quilapio, viz:
Escritor in attendance. Estrada confirmed that he filed the letter-
Herein respondent does not ignore alleged accusation but she reiterates
complaint for immorality against Escritor because in his frequent visits
to state with candor that there is no truth as to the veracity of same
to the Hall of Justice of Las Pias City, he learned from conversations
allegation.Included herewith are documents denominated as
therein that Escritor was living with a man not her husband and that she
Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed
had an eighteen to twenty-year old son by this man. This prompted him
by both respondent and her mate in marital relationship with the
to write to Judge Caoibes as he believed that employees of the judiciary
witnesses concurring their acceptance to the arrangement as approved
should be respectable and Escritors live-in arrangement did not
by the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine
command respect.[7]
Branch.
Respondent Escritor testified that when she entered the judiciary in
Same marital arrangement is recognized as a binding tie before
1999,[8] she was already a widow, her husband having died in
JEHOVAH God and before all persons to be held to and honored in full
1998.[9] She admitted that she has been living with Luciano Quilapio,
accord with the principles of Gods Word.
Jr. without the benefit of marriage for twenty years and that they have a
son.But as a member of the religious sect known as the Jehovahs xxx xxx xxx
Witnesses and the Watch Tower and Bible Tract Society, their conjugal
arrangement is in conformity with their religious beliefs. In fact, after ten Undersigned submits to the just, humane and fair discretion of the Court
years of living together, she executed on July 28, 1991 a Declaration of with verification from the WATCH TOWER BIBLE and TRACT
Q: So, in short, when you execute a declaration of pledge of faithfulness, are shown by the signatures of three witnesses, the elders in the
it is a preparation for you to enter a marriage? Atimonan Congregation. Salazar confirmed from the congregations
branch office that these three witnesses are elders in the Atimonan
A: Yes, Sir. Congregation. Although in 1998 Escritor was widowed, thereby lifting
the legal impediment to marry on her part, her mate is still not
Q: But it does not necessarily mean that the parties, cohabiting or living
capacitated to remarry. Thus, their declarations remain valid.Once all
under the same roof?
legal impediments for both are lifted, the couple can already register and aspects. Rather than becoming entangled in a confusion of
their marriage with the civil authorities and the validity of the declarations technicalities, the Christian, or the one desiring to become a disciple of
ceases. The elders in the congregations can then solemnize their Gods Son, can be guided by basic Scriptural principles that hold true in
marriage as authorized by Philippine law. In sum, therefore, insofar as all cases.
the congregation is concerned, there is nothing immoral about the
Gods view is of first concern. So, first of all the person must consider
conjugal arrangement between Escritor and Quilapio and they remain
whether that ones present relationship, or the relationship into which he
members in good standing in the congregation.[17]
or she contemplates entering, is one that could meet with Gods
Salvador Reyes, a minister at the General de Leon, Valenzuela City approval, or whether in itself, it violates the standards of Gods
Congregation of the Jehovahs Witnesses since 1974 and member of the Word. Take, for example, the situation where a man lives with a wife but
headquarters of the Watch Tower Bible and Tract Society of the also spends time living with another woman as a concubine. As long as
Philippines, Inc., presented the original copy of the magazine article such a state of concubinage prevails, the relationship of the second
entitled, Maintaining Marriage Before God and Men to which Escritor woman can never be harmonized with Christian principles, nor could any
and Minister Salazar referred in their testimonies. The article appeared declaration on the part of the woman or the man make it so. The only
in the March 15, 1977 issue of the Watchtower magazine published in right course is cessation of the relationship. Similarly with an incestuous
Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower relationship with a member of ones immediate family, or a homosexual
Bible and Tract Society of the Philippines, Inc., authorized Reyes to relationship or other such situation condemned by Gods Word. It is not
represent him in authenticating the article. The article is distributed to the lack of any legal validation that makes such relationships
the Jehovahs Witnesses congregations which also distribute them to the unacceptable; they are in themselves unscriptural and hence,
public.[18] immoral. Hence, a person involved in such a situation could not make
any kind of Declaration of Faithfulness, since it would have no merit in
The parties submitted their respective memoranda to the investigating
Gods eyes.
judge. Both stated that the issue for resolution is whether or not the
relationship between respondent Escritor and Quilapio is valid and If the relationship is such that it can have Gods approval, then, a second
binding in their own religious congregation, the Jehovahs principle to consider is that one should do all one can to establish the
Witnesses.Complainant Estrada adds however, that the effect of the honorableness of ones marital union in the eyes of all. (Heb. 13:4). If
relationship to Escritors administrative liability must likewise be divorce is possible, then such step should now be taken so that, having
determined.Estrada argued, through counsel, that the Declaration of obtained the divorce (on whatever legal grounds may be available), the
Pledging Faithfulness recognizes the supremacy of the proper public present union can receive civil validation as a recognized marriage.
authorities such that she bound herself to seek means to . . . legalize
Finally, if the marital relationship is not one out of harmony with the
their union. Thus, even assuming arguendo that the declaration is valid
principles of Gods Word, and if one has done all that can reasonably be
and binding in her congregation, it is binding only to her co-members in
done to have it recognized by civil authorities and has been blocked in
the congregation and serves only the internal purpose of displaying to
doing so, then, a Declaration Pledging Faithfulness can be signed. In
the rest of the congregation that she and her mate are a respectable and
some cases, as has been noted, the extreme slowness of official action
morally upright couple. Their religious belief and practice, however,
may make accomplishing of legal steps a matter of many, many years
cannot override the norms of conduct required by law for government
of effort. Or it may be that the costs represent a crushingly heavy burden
employees. To rule otherwise would create a dangerous precedent as
that the individual would need years to be able to meet. In such cases,
those who cannot legalize their live-in relationship can simply join the
the declaration pledging faithfulness will provide the congregation with
Jehovahs Witnesses congregation and use their religion as a defense
the basis for viewing the existing union as honorable while the individual
against legal liability.[19]
continues conscientiously to work out the legal aspects to the best of his
On the other hand, respondent Escritor reiterates the validity of her ability.
conjugal arrangement with Quilapio based on the belief and practice of
Keeping in mind the basic principles presented, the respondent as a
her religion, the Jehovahs Witnesses. She quoted portions of the
Minister of Jehovah God, should be able to approach the matter in a
magazine article entitled, Maintaining Marriage Before God and Men, in
balanced way, neither underestimating nor overestimating the validation
her memorandum signed by herself, viz:
offered by the political state. She always gives primary concern to Gods
The Declaration of Pledging of Faithfulness (Exhibits 1 and 2) executed view of the union.Along with this, every effort should be made to set a
by the respondent and her mate greatly affect the administrative liability fine example of faithfulness and devotion to ones mate, thus, keeping
of respondent. Jehovahs Witnesses admit and recognize (sic) the the marriage honorable among all. Such course will bring Gods blessing
supremacy of the proper public authorities in the marriage and result to the honor and praise of the author of marriage, Jehovah
arrangement. However, it is helpful to understand the relative nature of God. (1 Cor. 10:31-33)[20]
Caesars authority regarding marriage. From country to country,
marriage and divorce legislation presents a multitude of different angles
Respondent also brought to the attention of the investigating judge that Respondent is charged with committing gross and immoral conduct
complainants Memorandum came from Judge Caoibes under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
chambers[21] whom she claims was merely using petitioner to malign Administrative Code which provides, viz:
her.
Sec. 46. Discipline: General Provisions. - (a) No officer or employee in
In his Report and Recommendation, investigating judge Maceda found the Civil Service shall be suspended or dismissed except for cause as
Escritors factual allegations credible as they were supported by provided by law and after due process.
testimonial and documentary evidence. He also noted that (b)y strict
(b) The following shall be grounds for disciplinary action:
Catholic standards, the live-in relationship of respondent with her mate
should fall within the definition of immoral conduct, to wit: that which is xxx xxx xxx
willful, flagrant, or shameless, and which shows a moral indifference to
the opinion of the good and respectable members of the community (7 (5) Disgraceful and immoral conduct; xxx.
C.J.S. 959) (Delos Reyes vs. Aznar, 179 SCRA, at p. 666). He pointed
Not represented by counsel, respondent, in laymans terms, invokes the
out, however, that the more relevant question is whether or not to exact
religious beliefs and practices and moral standards of her religion, the
from respondent Escritor, a member of Jehovahs Witnesses, the strict
Jehovahs Witnesses, in asserting that her conjugal arrangement with a
moral standards of the Catholic faith in determining her administrative
man not her legal husband does not constitute disgraceful and immoral
responsibility in the case at bar.[22] The investigating judge
conduct for which she should be held administratively liable. While not
acknowledged that religious freedom is a fundamental right which is
articulated by respondent, she invokes religious freedom under Article
entitled to the highest priority and the amplest protection among human
III, Section 5 of the Constitution, which provides, viz:
rights, for it involves the relationship of man to his Creator (at p. 270,
EBRALINAG supra, citing Chief Justice Enrique M. Fernandos separate Sec. 5. No law shall be made respecting an establishment of religion, or
opinion in German vs. Barangan, 135 SCRA 514, 530-531) and thereby prohibiting the free exercise thereof. The free exercise and enjoyment
recommended the dismissal of the complaint against Escritor.[23] of religious profession and worship, without discrimination or preference,
shall forever be allowed. No religious test shall be required for the
After considering the Report and Recommendation of Executive Judge
exercise of civil or political rights.
Maceda, the Office of the Court Administrator, through Deputy Court
Administrator (DCA) Lock and with the approval of Court Administrator IV. Old World Antecedents of the American Religion Clauses
Presbitero Velasco, concurred with the factual findings of Judge Maceda
To understand the life that the religion clauses have taken, it would be
but departed from his recommendation to dismiss the complaint. DCA
well to understand not only its birth in the United States, but its
Lock stressed that although Escritor had become capacitated to marry
conception in the Old World. One cannot understand, much less
by the time she joined the judiciary as her husband had died a year
intelligently criticize the approaches of the courts and the political
before, it is due to her relationship with a married man, voluntarily carried
branches to religious freedom in the recent past in the United States
on, that respondent may still be subject to disciplinary
without a deep appreciation of the roots of these controversies in the
action.[24] Considering the ruling of the Court in Dicdican v. Fernan, et
ancient and medieval world and in the American experience.[27] This
al.[25] that court personnel have been enjoined to adhere to the exacting
fresh look at the religion clauses is proper in deciding this case of first
standards of morality and decency in their professional and private
impression.
conduct in order to preserve the good name and integrity of the court of
justice, DCA Lock found Escritors defense of freedom of religion In primitive times, all of life may be said to have been religious. Every
unavailing to warrant dismissal of the charge of immorality. Accordingly, significant event in the primitive mans life, from birth to death, was
he recommended that respondent be found guilty of immorality and that marked by religious ceremonies. Tribal society survived because
she be penalized with suspension of six months and one day without religious sanctions effectively elicited adherence to social customs. A
pay with a warning that a repetition of a similar act will be dealt with more person who broke a custom violated a taboo which would then bring
severely in accordance with the Civil Service Rules.[26] upon him the wrathful vengeance of a superhuman mysterious
power.[28] Distinction between the religious and non-religious would
II. Issue
thus have been meaningless to him. He sought protection from all kinds
Whether or not respondent should be found guilty of the administrative of evil - whether a wild beast or tribe enemy and lightning or wind - from
charge of gross and immoral conduct. To resolve this issue, it is the same person. The head of the clan or the Old Man of the tribe or the
necessary to determine the sub-issue of whether or not respondents king protected his wards against both human and superhuman
right to religious freedom should carve out an exception from the enemies. In time, the king not only interceded for his people with the
prevailing jurisprudence on illicit relations for which government divine powers, but he himself was looked upon as a divine being and his
employees are held administratively liable. laws as divine decrees.[29]
Israel was prohibited from exacting usury, mistreating aliens or using the Christians dogmatic exclusiveness prevented them from paying
false weights, all because God commanded these. homage to publicly accepted gods. In the first two centuries after the
death of Jesus, Christians were subjected to persecution. By the time of
Moses of the Bible led not like the ancient kings. The latter used religion the emperor Trajan, Christians were considered outlaws. Their crime
as an engine to advance the purposes of the state. Hammurabi unified was hatred of the human race, placing them in the same category as
Mesopotamia and established Babylon as its capital by elevating its city- pirates and brigands and other enemies of mankind who were subject
god to a primary position over the previous reigning gods.[35]Moses, on to summary punishments.[41]
the other hand, capitalized on the natural yearnings of the Hebrew
slaves for freedom and independence to further Gods In 284, Diocletian became emperor and sought to reorganize the empire
purposes. Liberation and Exodus were preludes to Sinai and the receipt and make its administration more efficient. But the closely-knit
of the Divine Law. The conquest of Canaan was a preparation for the hierarchically controlled church presented a serious problem, being a
building of the temple and the full worship of God.[36] state within a state over which he had no control. He had two options:
either to force it into submission and break its power or enter into an
Upon the monotheism of Moses was the theocracy of Israel alliance with it and procure political control over it. He opted for force
founded. This monotheism, more than anything else, charted not only and revived the persecution, destroyed the churches, confiscated
the future of religion in western civilization, but equally, the future of the
sacred books, imprisoned the clergy and by torture forced them to Inquisition was established, the purpose of which was the discovery and
sacrifice.[42] But his efforts proved futile. extermination of heresy. Accused heretics were tortured with the
approval of the church in the bull Ad extirpanda issued by Pope Innocent
The later emperor, Constantine, took the second option of
IV in 1252.
alliance. Constantine joined with Galerius and Licinius, his two co-rulers
of the empire, in issuing an edict of toleration to Christians on condition The corruption and abuses of the Catholic Church spurred the
that nothing is done by them contrary to discipline.[43] A year later, after Reformation aimed at reforming the Catholic Church and resulting in the
Galerius died, Constantine and Licius jointly issued the epochal Edict of establishment of Protestant churches. While Protestants are
Milan (312 or 313), a document of monumental importance in the history accustomed to ascribe to the Reformation the rise of religious liberty and
of religious liberty. It provided that liberty of worship shall not be its acceptance as the principle governing the relations between a
denied to any, but that the mind and will of every individual shall be free democratic state and its citizens, history shows that it is more accurate
to manage divine affairs according to his own choice. (emphasis to say that the same causes that gave rise to the Protestant revolution
supplied) Thus, all restrictive statutes were abrogated and it was also resulted in the widespread acceptance of the principle of religious
enacted that every person who cherishes the desire to observe the liberty, and ultimately of the principle of separation of church and
Christian religion shall freely and unconditionally proceed to observe the state.[46] Pleas for tolerance and freedom of conscience can without
same without let or hindrance. Furthermore, it was provided that the doubt be found in the writings of leaders of the Reformation. But just as
same free and open power to follow their own religion or worship is Protestants living in the countries of papists pleaded for toleration of
granted also to others, in accordance with the tranquillity of our times, in religion, so did the papists that lived where Protestants were
order that every person may have free opportunity to worship the object dominant.[47] Papist and Protestant governments alike accepted the
of his choice.(emphasis supplied)[44] idea of cooperation between church and state and regarded as essential
to national unity the uniformity of at least the outward manifestations of
Before long, not only did Christianity achieve equal status, but acquired
religion.[48] Certainly, Luther, leader of the Reformation, stated that
privilege, then prestige, and eventually, exclusive power.Religion
neither pope, nor bishop, nor any man whatever has the right of making
became an engine of state policy as Constantine considered Christianity
one syllable binding on a Christian man, unless it be done with his own
a means of unifying his complex empire. Within seven years after the
consent.[49] But when the tables had turned and he was no longer the
Edict of Milan, under the emperors command, great Christian edifices
hunted heretic, he likewise stated when he made an alliance with the
were erected, the clergy were freed from public burdens others had to
secular powers that (h)eretics are not to be disputed with, but to be
bear, and private heathen sacrifices were forbidden.
condemned unheard, and whilst they perish by fire, the faithful ought to
The favors granted to Christianity came at a price: state interference in pursue the evil to its source, and bathe their hands in the blood of the
religious affairs. Constantine and his successors called and dismissed Catholic bishops, and of the Pope, who is a devil in disguise.[50] To
church councils, and enforced unity of belief and practice. Until recently Luther, unity among the peoples in the interests of the state was an
the church had been the victim of persecution and repression, but this important consideration. Other personalities in the Reformation such as
time it welcomed the states persecution and repression of the Melanchton, Zwingli and Calvin strongly espoused theocracy or the use
nonconformist and the orthodox on the belief that it was better for of the state as an engine to further religion. In establishing theocracy in
heretics to be purged of their error than to die unsaved. Geneva, Calvin made absence from the sermon a crime, he included
criticism of the clergy in the crime of blasphemy punishable by death,
Both in theory as in practice, the partnership between church and state and to eliminate heresy, he cooperated in the Inquisition.[51]
was not easy. It was a constant struggle of one claiming dominance over
the other. In time, however, after the collapse and disintegration of the There were, however, those who truly advocated religious
Roman Empire, and while monarchical states were gradually being liberty. Erasmus, who belonged to the Renaissance than the
consolidated among the numerous feudal holdings, the church stood as Reformation, wrote that (t)he terrible papal edict, the more terrible
the one permanent, stable and universal power. Not surprisingly, imperial edict, the imprisonments, the confiscations, the recantations,
therefore, it claimed not merely equality but superiority over the secular the fagots and burnings, all these things I can see accomplish nothing
states. This claim, symbolized by Pope Leos crowning of Charlemagne, except to make the evil more widespread.[52] The minority or dissident
became the churchs accepted principle of its relationship to the state in sects also ardently advocated religious liberty. The Anabaptists,
the Middle Ages. As viewed by the church, the union of church and state persecuted and despised, along with the Socinians (Unitarians) and the
was now a union of the state in the church. The rulers of the states did Friends of the Quakers founded by George Fox in the 17th century,
not concede to this claim of supremacy. Thus, while Charlemagne endorsed the supremacy and freedom of the individual conscience.They
received his crown from the Pope, he himself crowned his own son as regarded religion as outside the realm of political governments.[53] The
successor to nullify the inference of supremacy.[45] The whole history English Baptists proclaimed that the magistrate is not to meddle with
of medieval Europe was a struggle for supremacy between prince and religion or matters of conscience, nor compel men to this or that form of
Pope and the resulting religious wars and persecution of heretics and religion.[54]
nonconformists. At about the second quarter of the 13th century, the
Thus, out of the Reformation, three rationalizations of church-state memory was still vivid in the minds of the Constitutional Fathers as
relations may be distinguished: the Erastian (after the German doctor expressed by the United States Supreme Court, viz:
Erastus), the theocratic, and the separatist. The first assumed state
The centuries immediately before and contemporaneous with the
superiority in ecclesiastical affairs and the use of religion as an engine
colonization of America had been filled with turmoil, civil strife, and
of state policy as demonstrated by Luthers belief that civic cohesion
persecution generated in large part by established sects determined to
could not exist without religious unity so that coercion to achieve
maintain their absolute political and religious supremacy. With the power
religious unity was justified. The second was founded on ecclesiastical
of government supporting them, at various times and places, Catholics
supremacy and the use of state machinery to further religious interests
had persecuted Protestants, Protestants had persecuted Catholics,
as promoted by Calvin. The third, which was yet to achieve ultimate and
Protestant sects had persecuted other protestant sects, Catholics of one
complete expression in the New World, was discernibly in its incipient
shade of belief had persecuted Catholics of another shade of belief, and
form in the arguments of some dissident minorities that the magistrate
all of these had from time to time persecuted Jews. In efforts to force
should not intermeddle in religious affairs.[55] After the Reformation,
loyalty to whatever religious group happened to be on top and in league
Erastianism pervaded all Europe except for Calvins theocratic
with the government of a particular time and place, men and women had
Geneva. In England, perhaps more than in any other country,
been fined, cast in jail, cruelly tortured, and killed. Among the offenses
Erastianism was at its height. To illustrate, a statute was enacted by
for which these punishments had been inflicted were such things as
Parliament in 1678, which, to encourage woolen trade, imposed on all
speaking disrespectfully of the views of ministers of government-
clergymen the duty of seeing to it that no person was buried in a shroud
established churches, non-attendance at those churches, expressions
made of any substance other than wool.[56] Under Elizabeth,
of non-belief in their doctrines, and failure to pay taxes and tithes to
supremacy of the crown over the church was complete: ecclesiastical
support them.[61]
offices were regulated by her proclamations, recusants were fined and
imprisoned, Jesuits and proselytizing priests were put to death for high In 1784, James Madison captured in this statement the entire history of
treason, the thirty-nine Articles of the Church of England were adopted church-state relations in Europe up to the time the United States
and English Protestantism attained its present doctrinal Constitution was adopted, viz:
status.[57] Elizabeth was to be recognized as the only Supreme
Governor of this realm . . . as well in all spiritual or ecclesiastical things Torrents of blood have been spilt in the world in vain attempts of the
or causes as temporal. She and her successors were vested, in their secular arm to extinguish religious discord, by proscribing all differences
When the representatives of the American states met in Philadelphia in context in which the unique experiment of the principle of religious
1787 to draft the constitutional foundation of the new republic, the freedom and separation of church and state saw its birth in American
theocratic state which had flourished intermittently in Israel, Judea, the constitutional democracy and in human history.[63]
Holy Roman Empire and Geneva was completely gone. The prevailing
V. Factors Contributing to the Adoption
church-state relationship in Europe was Erastianism embodied in the
system of jurisdictionalism whereby one faith was favored as the official of the American Religion Clauses
state-supported religion, but other faiths were permitted to exist with
Settlers fleeing from religious persecution in Europe, primarily in
freedom in various degrees. No nation had yet adopted as the basis of
Anglican-dominated England, established many of the American
its church-state relations the principle of the mutual independence of
colonies. British thought pervaded these colonies as the immigrants
religion and government and the concomitant principle that neither might
brought with them their religious and political ideas from England and
be used as an engine to further the policies of the other, although the
English books and pamphlets largely provided their cultural fare.[64] But
principle was in its seminal form in the arguments of some dissident
although these settlers escaped from Europe to be freed from bondage
minorities and intellectual leaders of the Renaissance. The religious
of laws which compelled them to support and attend government favored
wars of 16thand 17th century Europe were a thing of the past by the time
churches, some of these settlers themselves transplanted into American
America declared its independence from the Old World, but their
soil the oppressive practices they escaped from. The charters granted
by the English Crown to the individuals and companies designated to were not likely to persecute others for similar independence nor accede
make the laws which would control the destinies of the colonials to compulsory taxation to support a church to which they did not
authorized them to erect religious establishments, which all, whether belong.[72]
believers or not, were required to support or attend.[65] At one time, six
However, for those who were affiliated to churches, the colonial policy
of the colonies established a state religion. Other colonies, however,
regarding their worship generally followed the tenor of the English Act of
such as Rhode Island and Delaware tolerated a high degree of religious
Toleration of 1689. In England, this Act conferred on Protestant
diversity. Still others, which originally tolerated only a single religion,
dissenters the right to hold public services subject to registration of their
eventually extended support to several different faiths.[66]
ministers and places of worship.[73] Although the toleration accorded to
This was the state of the American colonies when the unique American Protestant dissenters who qualified under its terms was only a modest
experiment of separation of church and state came about. The birth of advance in religious freedom, it nevertheless was of some influence to
the experiment cannot be attributed to a single cause or event. Rather, the American experiment.[74] Even then, for practical considerations,
a number of interdependent practical and ideological factors contributed concessions had to be made to other dissenting churches to ensure their
in bringing it forth. Among these were the English Act of Toleration of cooperation in the War of Independence which thus had a unifying effect
1689, the multiplicity of sects, the lack of church affiliation on the part of on the colonies.
most Americans, the rise of commercial intercourse, the exigencies of
Next, the ideological factors. First, the Great Awakening in mid-
the Revolutionary War, the Williams-Penn tradition and the success of
18th century, an evangelical religious revival originating in New
their experiments, the writings of Locke, the social contract theory, the
England, caused a break with formal church religion and a resistance to
Great Awakening, and the influence of European rationalism and
coercion by established churches. This movement emphasized an
deism.[67] Each of these factors shall be briefly discussed.
emotional, personal religion that appealed directly to the individual,
First, the practical factors. Englands policy of opening the gates of the putting emphasis on the rights and duties of the individual conscience
American colonies to different faiths resulted in the multiplicity of sects and its answerability exclusively to God. Thus, although they had no
in the colonies. With an Erastian justification, English lords chose to quarrel with orthodox Christian theology as in fact they were
forego protecting what was considered to be the true and eternal church fundamentalists, this group became staunch advocates of separation of
of a particular time in order to encourage trade and commerce. The church and state.[75]
colonies were large financial investments which would be profitable only
Then there was the Williams-Penn tradition. Roger Williams was the
if people would settle there. It would be difficult to engage in trade with
founder of the colony of Rhode Island where he established a
persons one seeks to destroy for religious belief, thus tolerance was a
community of Baptists, Quakers and other nonconformists. In this
necessity. This tended to distract the colonies from their preoccupations
colony, religious freedom was not based on practical considerations but
over their religion and its exclusiveness, encouraging them to think less
on the concept of mutual independence of religion and government. In
of the Church and more of the State and of commerce.[68] The diversity
1663, Rhode Island obtained a charter from the British crown which
brought about by the colonies open gates encouraged religious freedom
declared that settlers have it much on their heart to hold forth a livelie
and non-establishment in several ways. First, as there were too many
experiment that a most flourishing civil state may best be maintained . .
dissenting sects to abolish, there was no alternative but to learn to live
. with full libertie in religious concernments.[76] In Williams
together. Secondly, because of the daily exposure to different religions,
pamphlet, The Bloudy Tenent of Persecution for cause of Conscience,
the passionate conviction in the exclusive rightness of ones religion,
discussed in a Conference between Truth and Peace,[77] he articulated
which impels persecution for the sake of ones religion, waned. Finally,
the philosophical basis for his argument of religious liberty. To him,
because of the great diversity of the sects, religious uniformity was not
religious freedom and separation of church and state did not constitute
possible, and without such uniformity, establishment could not
two but only one principle. Religious persecution is wrong because it
survive.[69]
confounds the Civil and Religious and because States . . . are proved
But while there was a multiplicity of denomination, paradoxically, there essentially Civil. The power of true discerning the true fear of God is not
was a scarcity of adherents. Only about four percent of the entire one of the powers that the people have transferred to Civil
population of the country had a church affiliation at the time the republic Authority.[78] Williams Bloudy Tenet is considered an epochal
was founded.[70] This might be attributed to the drifting to the American milestone in the history of religious freedom and the separation of church
colonies of the skepticism that characterized European and state.[79]
Enlightenment.[71] Economic considerations might have also been a
William Penn, proprietor of the land that became Pennsylvania, was also
factor.The individualism of the American colonist, manifested in the
an ardent advocate of toleration, having been imprisoned for his
multiplicity of sects, also resulted in much unaffiliated religion which
religious convictions as a member of the despised Quakers. He
treated religion as a personal non-institutional matter. The prevalence of
opposed coercion in matters of conscience because imposition, restraint
lack of church affiliation contributed to religious liberty and
and persecution for conscience sake, highly invade the Divine
disestablishment as persons who were not connected with any church
prerogative. Aside from his idealism, proprietary interests made
toleration in Pennsylvania necessary. He attracted large numbers of not one of the powers conferred on government as part of the social
settlers by promising religious toleration, thus bringing in immigrants contract.[85]
both from the Continent and Britain. At the end of the colonial period,
Not only the social contract theory drifted to the colonies from
Pennsylvania had the greatest variety of religious groups. Penn was
Europe. Many of the leaders of the Revolutionary and post-revolutionary
responsible in large part for the Concessions and agreements of the
period were also influenced by European deism and rationalism,[86] in
Proprietors, Freeholders, and inhabitants of West Jersey, in America, a
general, and some were apathetic if not antagonistic to formal religious
monumental document in the history of civil liberty which provided
worship and institutionalized religion. Jefferson, Paine, John Adams,
among others, for liberty of conscience.[80] The Baptist followers of
Washington, Franklin, Madison, among others were reckoned to be
Williams and the Quakers who came after Penn continued the tradition
among the Unitarians or Deists. Unitarianism and Deism contributed to
started by the leaders of their denominations. Aside from the Baptists
the emphasis on secular interests and the relegation of historic theology
and the Quakers, the Presbyterians likewise greatly contributed to the
to the background.[87] For these men of the enlightenment, religion
evolution of separation and freedom.[81] The Constitutional fathers who
should be allowed to rise and fall on its own, and the state must be
convened in Philadelphia in 1787, and Congress and the states that
protected from the clutches of the church whose entanglements has
adopted the First Amendment in 1791 were very familiar with and
caused intolerance and corruption as witnessed throughout
strongly influenced by the successful examples of Rhode Island and
history.[88] Not only the leaders but also the masses embraced
Pennsylvania.[82]
rationalism at the end of the eighteenth century, accounting for the
Undeniably, John Locke and the social contract theory also contributed popularity of Paines Age of Reason.[89]
to the American experiment. The social contract theory popularized by
Finally, the events leading to religious freedom and separation in Virginia
Locke was so widely accepted as to be deemed self-evident truth in
contributed significantly to the American experiment of the First
Americas Declaration of Independence. With the doctrine of natural
Amendment. Virginia was the first state in the history of the world to
rights and equality set forth in the Declaration of Independence, there
proclaim the decree of absolute divorce between church and
was no room for religious discrimination. It was difficult to justify
state.[90] Many factors contributed to this, among which were that half
inequality in religious treatment by a new nation that severed its political
to two-thirds of the population were organized dissenting sects, the
bonds with the English crown which violated the self-evident truth that
Great Awakening had won many converts, the established Anglican
all men are created equal.[83]
Church of Virginia found themselves on the losing side of the Revolution
The social contract theory was applied by many religious groups in and had alienated many influential laymen with its identification with the
arguing against establishment, putting emphasis on religion as a natural Crowns tyranny, and above all, present in Virginia was a group of
right that is entirely personal and not within the scope of the powers of political leaders who were devoted to liberty generally,[91] who had
a political body. That Locke and the social contract theory were accepted the social contract as self-evident, and who had been greatly
influential in the development of religious freedom and separation is influenced by Deism and Unitarianism. Among these leaders were
evident from the memorial presented by the Baptists to the Continental Washington, Patrick Henry, George Mason, James Madison and above
Congress in 1774, viz: the rest, Thomas Jefferson.
Men unite in society, according to the great Mr. Locke, with an intention The first major step towards separation in Virginia was the adoption of
in every one the better to preserve himself, his liberty and property. The the following provision in the Bill of Rights of the states first constitution:
power of the society, or Legislature constituted by them, can never be
That religion, or the duty which we owe to our Creator, and the manner
supposed to extend any further than the common good, but is obliged to
of discharging it, can be directed only by reason and conviction, not by
secure every ones property. To give laws, to receive obedience, to
force or violence; and therefore, all men are equally entitled to the free
compel with the sword, belong to none but the civil magistrate; and on
exercise of religion according to the dictates of conscience; and that it is
this ground we affirm that the magistrates power extends not to
the mutual duty of all to practice Christian forbearance, love, and charity
establishing any articles of faith or forms of worship, by force of laws; for
towards each other.[92] (emphasis supplied)
laws are of no force without penalties. The care of souls cannot belong
to the civil magistrate, because his power consists only in outward force; The adoption of the Bill of Rights signified the beginning of the end of
but pure and saving religion consists in the inward persuasion of the establishment. Baptists, Presbyterians and Lutherans flooded the first
mind, without which nothing can be acceptable to God.[84] (emphasis legislative assembly with petitions for abolition of establishment. While
supplied) the majority of the population were dissenters, a majority of the
legislature were churchmen. The legislature compromised and enacted
The idea that religion was outside the jurisdiction of civil government
a bill in 1776 abolishing the more oppressive features of establishment
was acceptable to both the religionist and rationalist. To the religionist,
and granting exemptions to the dissenters, but not guaranteeing
God or Christ did not desire that government have that jurisdiction
separation. It repealed the laws punishing heresy and absence from
(render unto Caesar that which is Caesars; my kingdom is not of this
worship and requiring the dissenters to contribute to the support of the
world) and to the rationalist, the power to act in the realm of religion was
establishment.[93] But the dissenters were not satisfied; they not only Madison articulated in the Memorial the widely held beliefs in 1785 as
wanted abolition of support for the establishment, they opposed the indicated by the great number of signatures appended to the
compulsory support of their own religion as others. As members of the Memorial. The assessment bill was speedily defeated.
established church would not allow that only they would pay taxes while
Taking advantage of the situation, Madison called up a much earlier
the rest did not, the legislature enacted in 1779 a bill making permanent
1779 bill of Jefferson which had not been voted on, the Bill for
the establishments loss of its exclusive status and its power to tax its
Establishing Religious Freedom, and it was finally passed in January
members; but those who voted for it did so in the hope that a general
1786. It provided, viz:
assessment bill would be passed. Without the latter, the establishment
would not survive. Thus, a bill was introduced in 1779 requiring every Well aware that Almighty God hath created the mind free; that all
person to enroll his name with the county clerk and indicate which attempts to influence it by temporal punishments or burdens, or by civil
society for the purpose of Religious Worship he wished to support. On incapacitations, tend not only to beget habits of hypocrisy and
the basis of this list, collections were to be made by the sheriff and turned meanness, and are a departure from the plan of the Holy Author of our
over to the clergymen and teachers designated by the religious religion, who being Lord both of body and mind, yet chose not to
congregation. The assessment of any person who failed to enroll in any propagate it by coercions on either, as was in his Almighty power to do;
society was to be divided proportionately among the societies.[94] The
bill evoked strong opposition. xxx xxx xxx
In 1784, another bill, entitled Bill Establishing a Provision for Teachers Be it therefore enacted by the General Assembly. That no man shall be
of the Christian Religion was introduced requiring all persons to pay a compelled to frequent or support any religious worship, place or ministry
moderate tax or contribution annually for the support of the Christian whatsoever, nor shall be enforced, restrained, molested or burdened in
religion, or of some Christian church, denomination or communion of his body or goods, nor shall otherwise suffer on account of his religious
Christians, or for some form of Christian worship.[95] This likewise opinions or beliefs, but that all men shall be free to profess, and by
aroused the same opposition to the 1779 bill. The most telling blow argument to maintain, their opinions in matters of religion, and that the
against the 1784 bill was the monumental Memorial and Remonstrance same shall in no wise diminish, enlarge or affect their civil
against Religious Assessments written by Madison and widely capacities.[98] (emphases supplied)
Because we hold it for a fundamental and undeniable truth, that religion, sects, namely the Presbyterians and the Baptists. The former were
or the duty which we owe to our creator, and the manner of discharging never established in Virginia and an underprivileged minority of the
it, can be directed only by reason and conviction, not by force or population. This made them anxious to pull down the existing state
violence. The religion, then, of every man, must be left to the conviction church as they realized that it was impossible for them to be elevated to
and conscience of every man; and it is the right of every man to exercise that privileged position. Apart from these expediential considerations,
it as these may dictate. This right is, in its nature, an unalienable right. It however, many of the Presbyterians were sincere advocates of
is unalienable, because the opinions of men, depending only on the separation[100] grounded on rational, secular arguments and to the
evidence contemplated in their own minds, cannot follow the dictates of language of natural religion.[101] Influenced by Roger Williams, the
other men; it is unalienable, also, because what is here a right towards Baptists, on the other hand, assumed that religion was essentially a
men, is a duty towards the creator. It is the duty of every man to render matter of concern of the individual and his God, i.e., subjective, spiritual
the creator such homage, and such only as he believes to be acceptable and supernatural, having no relation with the social order.[102] To them,
to him; this duty is precedent, both in order of time and degree of the Holy Ghost was sufficient to maintain and direct the Church without
obligation, to the claims of civil society. Before any man can be governmental assistance and state-supported religion was contrary ti
considered as a member of civil society, he must be considered as a the spirit of the Gospel.[103] Thus, separation was
subject of the governor of the universe;and if a member of civil society, necessary.[104] Jeffersons religious freedom statute was a milestone in
who enters into any subordinate association, must always do it with a the history of religious freedom. The United States Supreme Court has
reservation of his duty to the general authority, much more must every not just once acknowledged that the provisions of the First Amendment
man who becomes a member of any particular civil society do it with the of the U.S. Constitution had the same objectives and intended to afford
saving his allegiance to the universal sovereign.[97](emphases the same protection against government interference with religious
Parallel to this expansion of government has been the expansion of The term religion has reference to ones views of his relations to his
religious organizations in population, physical institutions, types of Creator, and to the obligations they impose of reverence for his being
activities undertaken, and sheer variety of denominations, sects and
and character, and of obedience to his will. It is often confounded with Zen Buddhism. It has been proposed that basically, a creed must meet
the cultus or form of worship of a particular sect, but is distinguishable four criteria to qualify as religion under the First Amendment. First, there
from the latter. The First Amendment to the Constitution, in declaring must be belief in God or some parallel belief that occupies a central
that Congress shall make no law respecting the establishment of place in the believers life. Second, the religion must involve a moral code
religion, or forbidding the free exercise thereof, was intended to allow transcending individual belief, i.e., it cannot be purely subjective. Third,
everyone under the jurisdiction of the United States to entertain such a demonstrable sincerity in belief is necessary, but the court must not
notions respecting his relations to his Maker and the duties they impose inquire into the truth or reasonableness of the belief.[127] Fourth, there
as may be approved by his judgment and conscience, and to exhibit his must be some associational ties,[128] although there is also a view that
sentiments in such form of worship as he may think proper, not injurious religious beliefs held by a single person rather than being part of the
to the equal rights of others, and to prohibit legislation for the support of teachings of any kind of group or sect are entitled to the protection of the
any religious tenets, or the modes of worship of any sect.[121] Free Exercise Clause.[129]
The definition was clearly theistic which was reflective of the popular Defining religion is only the beginning of the difficult task of deciding
attitudes in 1890. religion clause cases. Having hurdled the issue of definition, the court
then has to draw lines to determine what is or is not permissible under
In 1944, the Court stated in United States v. Ballard[122] that the free
the religion clauses. In this task, the purpose of the clauses is the
exercise of religion embraces the right to maintain theories of life and of
yardstick. Their purpose is singular; they are two sides of the same
death and of the hereafter which are rank heresy to followers of the
coin.[130] In devoting two clauses to religion, the Founders were stating
orthodox faiths.[123] By the 1960s, American pluralism in religion had
not two opposing thoughts that would cancel each other out, but two
flourished to include non-theistic creeds from Asia such as Buddhism
complementary thoughts that apply in different ways in different
and Taoism.[124] In 1961, the Court, in Torcaso v.
circumstances.[131] The purpose of the religion clauses - both in the
Watkins,[125] expanded the term religion to non-theistic beliefs such as
restriction it imposes on the power of the government to interfere with
Buddhism, Taoism, Ethical Culture, and Secular Humanism. Four years
the free exercise of religion and the limitation on the power of
later, the Court faced a definitional problem in United States v.
government to establish, aid, and support religion - is the protection and
Seeger[126] which involved four men who claimed conscientious
promotion of religious liberty.[132] The end, the goal, and the rationale
objector status in refusing to serve in the Vietnam War. One of the four,
of the religion clauses is this liberty.[133] Both clauses were adopted to
Seeger, was not a member of any organized religion opposed to war,
prevent government imposition of religious orthodoxy; the great evil
but when specifically asked about his belief in a Supreme Being, Seeger
against which they are directed is government-induced
stated that you could call (it) a belief in a Supreme Being or God. These
homogeneity.[134] The Free Exercise Clause directly articulates the
just do not happen to be the words that I use. Forest Peter, another one
common objective of the two clauses and the Establishment
of the four claimed that after considerable meditation and reflection on
Clause specifically addresses a form of interference with religious liberty
values derived from the Western religious and philosophical tradition, he
with which the Framers were most familiar and for which government
determined that it would be a violation of his moral code to take human
historically had demonstrated a propensity.[135] In other words, free
life and that he considered this belief superior to any obligation to the
exercise is the end, proscribing establishment is a necessary means to
state. The Court avoided a constitutional question by broadly
this end to protect the rights of those who might dissent from whatever
interpreting not the Free Exercise Clause, but the statutory definition of
religion is established.[136] It has even been suggested that the sense
religion in the Universal Military Training and Service Act of 1940 which
of the First Amendment is captured if it were to read as Congress shall
exempt from combat anyone who, by reason of religious training and
make no law respecting an establishment of religion
belief, is conscientiously opposed to participation in war in any
or otherwise prohibiting the free exercise thereof because the
form. Speaking for the Court, Justice Clark ruled, viz:
fundamental and single purpose of the two religious clauses is to avoid
Congress, in using the expression Supreme Being rather than the any infringement on the free exercise of religions[137] Thus, the
designation God, was merely clarifying the meaning of religious tradition Establishment Clause mandates separation of church and state to
and belief so as to embrace all religions and to exclude essentially protect each from the other, in service of the larger goal of preserving
political, sociological, or philosophical views (and) the test of belief in religious liberty. The effect of the separation is to limit the opportunities
relation to a Supreme Being is whether a given belief that is sincere and for any religious group to capture the state apparatus to the
meaningful occupies a place in the life of its possessor parallel to the disadvantage of those of other faiths, or of no faith at all[138]because
orthodox belief in God.(emphasis supplied) history has shown that religious fervor conjoined with state power is
likely to tolerate far less religious disagreement and disobedience from
The Court was convinced that Seeger, Peter and the others were those who hold different beliefs than an enlightened secular
conscientious objectors possessed of such religious belief and training. state.[139] In the words of the U.S. Supreme Court, the two clauses are
interrelated, viz: (t)he structure of our government has, for the
Federal and state courts have expanded the definition of
preservation of civil liberty, rescued the temporal institutions from
religion in Seeger to include even non-theistic beliefs such as Taoism or
religious interference. On the other hand, it has secured religious liberty Laws are made for the government of actions, and while they cannot
from the invasion of the civil authority.[140] interfere with mere religious belief and opinions, they may with
practices.Suppose one believed that human sacrifice were a necessary
In upholding religious liberty as the end goal in religious clause cases,
part of religious worship, would it be seriously contended that the civil
the line the court draws to ensure that government does not establish
government under which he lived could not interfere to prevent a
and instead remains neutral toward religion is not absolutely
sacrifice? Or if a wife religiously believed it was her duty to burn herself
straight. Chief Justice Burger explains, viz:
upon the funeral pile of her dead husband, would it be beyond the power
The course of constitutional neutrality in this area cannot be an of the civil government to prevent her carrying her belief into practice?
absolutely straight line; rigidity could well defeat the basic purpose of
So here, as a law of the organization of society under the exclusive
these provisions, which is to insure that no religion be sponsored or
dominion of the United States, it is provided that plural marriages shall
favored, none commanded and none inhibited.[141] (emphasis
not be allowed.Can a man excuse his practices to the contrary because
supplied)
of his religious belief? To permit this would be to make the professed
Consequently, U.S. jurisprudence has produced two identifiably doctrines of religious belief superior to the law of the land, and in effect
different,[142] even opposing, strains of jurisprudence on the religion to permit every citizen to become a law unto himself. Government could
clauses: separation (in the form of strict separation or the tamer version exist only in name under such circumstances.[146]
of strict neutrality or separation) and benevolent
The construct was thus simple: the state was absolutely prohibited by
neutrality or accommodation. A view of the landscape of U.S. religion
the Free Exercise Clause from regulating individual religious beliefs, but
clause cases would be useful in understanding these two strains, the
placed no restriction on the ability of the state to regulate religiously
scope of protection of each clause, and the tests used in religious clause
motivated conduct. It was logical for belief to be accorded absolute
cases. Most of these cases are cited as authorities in Philippine religion
protection because any statute designed to prohibit a particular religious
clause cases.
belief unaccompanied by any conduct would most certainly be motivated
A. Free Exercise Clause only by the legislatures preference of a competing religious belief. Thus,
all cases of regulation of belief would amount to regulation of religion for
The Court first interpreted the Free Exercise Clause in the 1878 case religious reasons violative of the Free Exercise Clause. On the other
of Reynolds v. United States.[143] This landmark case involved hand, most state regulations of conduct are for public welfare purposes
Reynolds, a Mormon who proved that it was his religious duty to have and have nothing to do with the legislatures religious preferences. Any
several wives and that the failure to practice polygamy by male members burden on religion that results from state regulation of conduct arises
of his religion when circumstances would permit would be punished with only when particular individuals are engaging in the generally regulated
damnation in the life to come. Reynolds act of contracting a second conduct because of their particular religious beliefs. These burdens are
marriage violated Section 5352, Revised Statutes prohibiting and thus usually inadvertent and did not figure in the belief-action test. As
penalizing bigamy, for which he was convicted. The Court affirmed long as the Court found that regulation address action rather than belief,
Reynolds conviction, using what in jurisprudence would be called the Free Exercise Clause did not pose any problem.[147] The Free
the belief-action test which allows absolute protection to belief but not to Exercise Clause thus gave no protection against the proscription of
action. It cited Jeffersons Bill Establishing Religious Freedom which, actions even if considered central to a religion unless the legislature
according to the Court, declares the true distinction between what formally outlawed the belief itself.[148]
properly belongs to the Church and what to the State.[144] The bill,
making a distinction between belief and action, states in relevant This belief-action distinction was held by the Court for some years as
part, viz: shown by cases where the Court upheld other laws which burdened the
practice of the Mormon religion by imposing various penalties on
That to suffer the civil magistrate to intrude his powers into the field of polygamy such as the Davis case and Church of Latter Day Saints v.
opinion, and to restrain the profession or propagation of principles on United States.[149] However, more than a century since Reynolds was
supposition of their ill tendency, is a dangerous fallacy which at once decided, the Court has expanded the scope of protection from belief to
destroys all religious liberty; speech and conduct. But while the belief-action test has been
abandoned, the rulings in the earlier Free Exercise cases have gone
that it is time enough for the rightful purposes of civil government for its
unchallenged. The belief-action distinction is still of some importance
officers to interfere when principles break out into overt acts against
though as there remains an absolute prohibition of governmental
peace and good order.[145] (emphasis supplied)
proscription of beliefs.[150]
The Court then held, viz:
The Free Exercise Clause accords absolute protection to individual
Congress was deprived of all legislative power over mere opinion, but religious convictions and beliefs[151] and proscribes government from
was left free to reach actions which were in violation of social duties or questioning a persons beliefs or imposing penalties or disabilities based
subversive of good order. . . solely on those beliefs. The Clause extends protection to both beliefs
and unbelief. Thus, in Torcaso v. Watkins,[152] a unanimous Court forum was considered blatant censorship. While protected, religious
struck down a state law requiring as a qualification for public office an speech in the public forum is still subject to reasonable time, place and
oath declaring belief in the existence of God. The protection also allows manner regulations similar to non-religious speech. Religious
courts to look into the good faith of a person in his belief, but proselytizing in congested areas, for example, may be limited to certain
prohibits inquiry into the truth of a persons religious beliefs. As held areas to maintain the safe and orderly flow of pedestrians and vehicular
in United States v. Ballard,[153] (h)eresy trials are foreign to the traffic as held in the case of Heffron v. International Society for Krishna
Constitution. Men may believe what they cannot prove. They may not Consciousness.[159]
be put to the proof of their religious doctrines or beliefs.
The least protected under the Free Exercise Clause is religious conduct,
Next to belief which enjoys virtually absolute protection, religious speech usually in the form of unconventional religious practices. Protection in
and expressive religious conduct are accorded the highest degree of this realm depends on the character of the action and the government
protection. Thus, in the 1940 case of Cantwell v. Connecticut,[154] the rationale for regulating the action.[160] The Mormons religious conduct
Court struck down a state law prohibiting door-to-door solicitation for any of polygamy is an example of unconventional religious practice. As
religious or charitable cause without prior approval of a state discussed in the Reynolds case above, the Court did not afford
agency. The law was challenged by Cantwell, a member of the protection to the practice. Reynolds was reiterated in the 1890 case
Jehovahs Witnesses which is committed to active proselytizing. The of Davis again involving Mormons, where the Court held, viz: (c)rime is
Court invalidated the state statute as the prior approval necessary was not the less odious because sanctioned by what any particular sect may
held to be a censorship of religion prohibited by the Free Exercise designate as religion.[161]
Clause. The Court held, viz:
The belief-action test in Reynolds and Davis proved
In the realm of religious faith, and in that of political belief, sharp unsatisfactory. Under this test, regulation of religiously dictated conduct
differences arise. In both fields the tenets of one may seem the rankest would be upheld no matter how central the conduct was to the exercise
error to his neighbor. To persuade others to his point of view, the of religion and no matter how insignificant was the governments non-
pleader, as we know, resorts to exaggeration, to vilification of men who religious regulatory interest so long as the government is proscribing
have been, or are, prominent in church or state, and even to false action and not belief. Thus, the Court abandoned the simplistic belief-
statement. But the people of this nation have ordained in the light of actiondistinction and instead recognized the deliberate-inadvertent
history, that, in spite of the probability of excesses and abuses, these distinction, i.e., the distinction between deliberate state interference of
liberties are, in the long view, essential to enlightened opinion and right religious exercise for religious reasons which was plainly
conduct on the part of citizens of a democracy.[155] unconstitutional and governments inadvertent interference with religion
in pursuing some secular objective.[162] In the 1940 case of Minersville
Cantwell took a step forward from the protection afforded by
School District v. Gobitis,[163] the Court upheld a local school board
the Reynolds case in that it not only affirmed protection of belief but also
requirement that all public school students participate in a daily flag
freedom to act for the propagation of that belief, viz:
salute program, including the Jehovahs Witnesses who were forced to
Thus the Amendment embraces two concepts - freedom to believe and salute the American flag in violation of their religious training, which
freedom to act. The first is absolute but, in the nature of things, the considered flag salute to be worship of a graven image. The Court
second cannot be. Conduct remains subject to regulation for the recognized that the general requirement of compulsory flag salute
protection of society. . . In every case, the power to regulate must be so inadvertently burdened the Jehovah Witnesses practice of their religion,
exercised as not, in attaining a permissible end, unduly to infringe the but justified the government regulation as an appropriate means of
protected freedom. (emphasis supplied)[156] attaining national unity, which was the basis of national security. Thus,
although the Court was already aware of the deliberate-inadvertent
The Court stated, however, that government had the power to regulate distinction in government interference with religion, it continued to hold
the times, places, and manner of solicitation on the streets and assure that the Free Exercise Clause presented no problem to interference with
the peace and safety of the community. religion that was inadvertent no matter how serious the interference, no
matter how trivial the states non-religious objectives, and no matter how
Three years after Cantwell, the Court in Douglas v. City of
many alternative approaches were available to the state to pursue its
Jeanette,[157] ruled that police could not prohibit members of the
objectives with less impact on religion, so long as government was
Jehovahs Witnesses from peaceably and orderly proselytizing on
acting in pursuit of a secular objective.
Sundays merely because other citizens complained. In another case
likewise involving the Jehovahs Witnesses, Niemotko v. Three years later, the Gobitis decision was overturned in West Virginia
Maryland,[158] the Court unanimously held unconstitutional a city v. Barnette[164] which involved a similar set of facts and issue.The
councils denial of a permit to the Jehovahs Witnesses to use the city Court recognized that saluting the flag, in connection with the pledges,
park for a public meeting. The city councils refusal was because of the was a form of utterance and the flag salute program was a compulsion
unsatisfactory answers of the Jehovahs Witnesses to questions about of students to declare a belief. The Court ruled that compulsory
Catholicism, military service, and other issues. The denial of the public
unification of opinions leads only to the unanimity of the graveyard and standard for determining whether the denial of benefits could withstand
exempt the students who were members of the Jehovahs Witnesses constitutional scrutiny, the Court ruled, viz:
from saluting the flag. A close scrutiny of the case, however, would show
Plainly enough, appellees conscientious objection to Saturday work
that it was decided not on the issue of religious conduct as the Court
constitutes no conduct prompted by religious principles of a kind within
said, (n)or does the issue as we see it turn on ones possession of
the reach of state legislation. If, therefore, the decision of the South
particular religious views or the sincerity with which they are held. While
Carolina Supreme Court is to withstand appellants constitutional
religion supplies appellees motive for enduring the discomforts of
challenge, it must be either because her disqualification as a beneficiary
making the issue in this case, many citizens who do not share these
represents no infringement by the State of her constitutional rights of
religious views hold such a compulsory rite to infringe constitutional
free exercise, or because any incidental burden on the free exercise of
liberty of the individual. (emphasis supplied)[165] The Court
appellants religion may be justified by a compelling state interest in the
pronounced, however, that, freedoms of speech and of press, of
regulation of a subject within the States constitutional power to regulate.
assembly, and of worship . . . are susceptible only of restriction only to
. . NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct
prevent grave and immediate danger to interests which the state may
328.[173] (emphasis supplied)
lawfully protect.[166] The Court seemed to recognize the extent to which
its approach in Gobitis subordinated the religious liberty of political The Court stressed that in the area of religious liberty, it is basic that it
minorities - a specially protected constitutional value - to the common is not sufficient to merely show a rational relationship of the substantial
everyday economic and public welfare objectives of the majority in the infringement to the religious right and a colorable state interest. (I)n this
legislature. This time, even inadvertent interference with religion must highly sensitive constitutional area, [o]nly the gravest abuses,
pass judicial scrutiny under the Free Exercise Clause with only grave endangering paramount interests, give occasion for permissible
and immediate danger sufficing to override religious liberty. But the limitation. Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S
seeds of this heightened scrutiny would only grow to a full flower in the Ct 315.[174] The Court found that there was no such compelling state
1960s.[167] interest to override Sherberts religious liberty. It added that even if the
state could show that Sherberts exemption would pose serious
Nearly a century after Reynolds employed the belief-action test, the
detrimental effects to the unemployment compensation fund and
Warren Court began the modern free exercise
scheduling of work, it was incumbent upon the state to show that no
jurisprudence.[168]A two-part balancing test was established
alternative means of regulations would address such detrimental effects
in Braunfeld v. Brown[169] where the Court considered the
without infringing religious liberty. The state, however, did not discharge
constitutionality of applying Sunday closing laws to Orthodox Jews
this burden. The Court thus carved out for Sherbert an exemption from
whose beliefs required them to observe another day as the Sabbath and
the Saturday work requirement that caused her disqualification from
abstain from commercial activity on Saturday. Chief Justice Warren,
claiming the unemployment benefits. The Court reasoned that upholding
writing for the Court, found that the law placed a severe burden on
the denial of Sherberts benefits would force her to choose between
Sabattarian retailers. He noted, however, that since the burden was the
receiving benefits and following her religion.This choice placed the same
indirect effect of a law with a secular purpose, it would violate the Free
kind of burden upon the free exercise of religion as would a fine imposed
Exercise Clause only if there were alternative ways of achieving the
against (her) for her Saturday worship. This germinal case
states interest. He employed a two-part balancing test of validity where
of Sherbert firmly established the exemption doctrine, [175] viz:
the first step was for plaintiff to show that the regulation placed a real
burden on his religious exercise. Next, the burden would be upheld only It is certain that not every conscience can be accommodated by all the
if the state showed that it was pursuing an overriding secular goal by the laws of the land; but when general laws conflict with scruples of
means which imposed the least burden on religious practices.[170] The conscience, exemptions ought to be granted unless some compelling
Court found that the state had an overriding secular interest in setting state interest intervenes.
aside a single day for rest, recreation and tranquility and there was no
alternative means of pursuing this interest but to require Sunday as a Thus, in a short period of twenty-three years from Gobitis to Sherbert (or
uniform rest day. even as early as Braunfeld), the Court moved from the doctrine that
inadvertent or incidental interferences with religion raise no problem
Two years after came the stricter compelling state interest test in the under the Free Exercise Clause to the doctrine that such interferences
1963 case of Sherbert v. Verner.[171] This test was similar to the two- violate the Free Exercise Clause in the absence of a compelling state
part balancing test in Braunfeld,[172] but this latter test stressed that the interest - the highest level of constitutional scrutiny short of a holding of
state interest was not merely any colorable state interest, but must be a per se violation. Thus, the problem posed by the belief-action test and
paramount and compelling to override the free exercise claim. In this the deliberate-inadvertent distinction was addressed.[176]
case, Sherbert, a Seventh Day Adventist, claimed unemployment
compensation under the law as her employment was terminated for Throughout the 1970s and 1980s under the Warren, and afterwards, the
refusal to work on Saturdays on religious grounds. Her claim was Burger Court, the rationale in Sherbert continued to be
denied. She sought recourse in the Supreme Court. In laying down the applied. In Thomas v. Review Board[177] and Hobbie v. Unemployment
Appeals Division,[178] for example, the Court reiterated the exemption sometimes even at the expense of other interests of admittedly high
doctrine and held that in the absence of a compelling justification, a state social importance. . .
could not withhold unemployment compensation from an employee who
The essence of all that has been said and written on the subject is
resigned or was discharged due to unwillingness to depart from religious
that only those interests of the highest order and those not otherwise
practices and beliefs that conflicted with job requirements. But not every
served can overbalance legitimate claims to the free exercise of
governmental refusal to allow an exemption from a regulation which
religion. . .
burdens a sincerely held religious belief has been invalidated, even
though strict or heightened scrutiny is applied. In United States v. . . . our decisions have rejected the idea that that religiously grounded
Lee,[179] for instance, the Court using strict scrutiny and referring conduct is always outside the protection of the Free Exercise Clause. It
to Thomas, upheld the federal governments refusal to exempt Amish is true that activities of individuals, even when religiously based, are
employers who requested for exemption from paying social security often subject to regulation by the States in the exercise of their
taxes on wages on the ground of religious beliefs. The Court held that undoubted power to promote the health, safety, and general welfare, or
(b)ecause the broad public interest in maintaining a sound tax system is the Federal government in the exercise of its delegated powers . . . But
of such a high order, religious belief in conflict with the payment of taxes to agree that religiously grounded conduct must often be subject to the
affords no basis for resisting the tax.[180] It reasoned that unlike broad police power of the State is not to deny that there are areas of
in Sherbert, an exemption would significantly impair governments conduct protected by the Free Exercise Clause of the First Amendment
achievement of its objective - the fiscal vitality of the social security and thus beyond the power of the State to control, even under
system; mandatory participation is indispensable to attain this regulations of general applicability. . . .This case, therefore, does not
objective. The Court noted that if an exemption were made, it would be become easier because respondents were convicted for their actions in
hard to justify not allowing a similar exemption from general federal refusing to send their children to the public high school; in this context
taxes where the taxpayer argues that his religious beliefs require him to belief and action cannot be neatly confined in logic-tight compartments.
reduce or eliminate his payments so that he will not contribute to the . . [183]
governments war-related activities, for example.
The onset of the 1990s, however, saw a major setback in the protection
The strict scrutiny and compelling state interest test significantly afforded by the Free Exercise Clause. In Employment Division, Oregon
increased the degree of protection afforded to religiously motivated Department of Human Resources v. Smith,[184] the sharply
conduct. While not affording absolute immunity to religious activity, a divided Rehnquist Court dramatically departed from the heightened
compelling secular justification was necessary to uphold public policies scrutiny and compelling justification approach and imposed serious
that collided with religious practices. Although the members of the Court limits on the scope of protection of religious freedom afforded by the
often disagreed over which governmental interests should be First Amendment. In this case, the well-established practice of the
considered compelling, thereby producing dissenting and separate Native American Church, a sect outside the Judeo-Christian mainstream
opinions in religious conduct cases, this general test established a of American religion, came in conflict with the states interest in
strong presumption in favor of the free exercise of religion.[181] prohibiting the use of illicit drugs. Oregons controlled substances statute
made the possession of peyote a criminal offense. Two members of the
Heightened scrutiny was also used in the 1972 case of Wisconsin v.
church, Smith and Black, worked as drug rehabilitation counselors for a
Yoder[182] where the Court upheld the religious practice of the Old
private social service agency in Oregon. Along with other church
Order Amish faith over the states compulsory high school attendance
members, Smith and Black ingested peyote, a hallucinogenic drug, at a
law. The Amish parents in this case did not permit secular education of
sacramental ceremony practiced by Native Americans for hundreds of
their children beyond the eighth grade. Chief Justice Burger, writing for
years. The social service agency fired Smith and Black citing their use
the majority, held, viz:
of peyote as job-related misconduct. They applied for unemployment
It follows that in order for Wisconsin to compel school attendance compensation, but the Oregon Employment Appeals Board denied their
beyond the eighth grade against a claim that such attendance interferes application as they were discharged for job-related misconduct. Justice
with the practice of a legitimate religious belief, it must appear either that Scalia, writing for the majority, ruled that if prohibiting the exercise of
the State does not deny the free exercise of religious belief by its religion . . . is . . . merely the incidental effect of a generally applicable
requirement, or that there is a state interest of sufficient magnitude to and otherwise valid law, the First Amendment has not been offended. In
override the interest claiming protection under the Free Exercise other words, the Free Exercise Clause would be offended only if a
Clause. Long before there was general acknowledgement of the need particular religious practice were singled out for proscription. The
for universal education, the Religion Clauses had specially and firmly majority opinion relied heavily on the Reynolds case and in effect,
fixed the right of free exercise of religious beliefs, and buttressing this equated Oregons drug prohibition law with the anti-polygamy statute
fundamental right was an equally firm, even if less explicit, prohibition in Reynolds. The relevant portion of the majority opinion held, viz:
against the establishment of any religion. The values underlying these
We have never invalidated any governmental action on the basis of
two provisions relating to religion have been zealously protected,
the Sherbert test except the denial of unemployment compensation.
Even if we were inclined to breathe into Sherbert some life beyond the a minority religion as a result of ignorance or sensitivity of the religious
unemployment compensation field, we would not apply it to require and political majority is no less an interference with the minoritys
exemptions from a generally applicable criminal law. . . religious freedom. If the regulation had instead restricted the majoritys
religious practice, the majoritarian legislative process would in all
We conclude today that the sounder approach, and the approach in
probability have modified or rejected the regulation. Thus, the imposition
accord with the vast majority of our precedents, is to hold the test
of the political majoritys non-religious objectives at the expense of the
inapplicable to such challenges. The governments ability to enforce
minoritys religious interests implements the majoritys religious viewpoint
generally applicable prohibitions of socially harmful conduct, like its
at the expense of the minoritys. Second, government impairment of
ability to carry out other aspects of public policy, cannot depend on
religious liberty would most often be of the inadvertent kind as
measuring the effects of a governmental action on a religious objectors
in Smith considering the political culture where direct and deliberate
spiritual development. . . .To make an individuals obligation to obey such
regulatory imposition of religious orthodoxy is nearly inconceivable. If
a law contingent upon the laws coincidence with his religious beliefs
the Free Exercise Clause could not afford protection to inadvertent
except where the States interest is compelling - permitting him, by virtue
interference, it would be left almost meaningless. Third, the Reynolds-
of his beliefs, to become a law unto himself, . . . - contradicts both
Gobitis-Smith doctrine simply defies common sense.The state should
constitutional tradition and common sense.
not be allowed to interfere with the most deeply held fundamental
Justice OConnor wrote a concurring opinion pointing out that the religious convictions of an individual in order to pursue some trivial state
majoritys rejection of the compelling governmental interest test was the economic or bureaucratic objective. This is especially true when there
most controversial part of the decision. Although she concurred in the are alternative approaches for the state to effectively pursue its objective
result that the Free Exercise Clause had not been offended, she sharply without serious inadvertent impact on religion.[186]
criticized the majority opinion as a dramatic departure from well-settled
Thus, the Smith decision has been criticized not only for increasing the
First Amendment jurisprudence. . . and . . . (as) incompatible with our
power of the state over religion but as discriminating in favor of
Nations fundamental commitment to religious liberty. This portion of her
mainstream religious groups against smaller, more peripheral groups
concurring opinion was supported by Justices Brennan, Marshall and
who lack legislative clout,[187] contrary to the original theory of the First
Blackmun who dissented from the Courts decision. Justice OConnor
Amendment.[188] Undeniably, claims for judicial exemption emanate
asserted that (t)he compelling state interest test effectuates the First
almost invariably from relatively politically powerless minority religions
Amendments command that religious liberty is an independent liberty,
and Smith virtually wiped out their judicial recourse for
that it occupies a preferred position, and that the Court will not permit
exemption.[189] Thus, the Smith decision elicited much negative public
encroachments upon this liberty, whether direct or indirect, unless
reaction especially from the religious community, and commentaries
required by clear and compelling government interest of the highest
insisted that the Court was allowing the Free Exercise Clause to
order. Justice Blackmun registered a separate dissenting opinion, joined
disappear.[190]So much was the uproar that a majority in Congress was
by Justices Brennan and Marshall. He charged the majority with
convinced to enact the Religious Freedom Restoration Act (RFRA) of
mischaracterizing precedents and overturning. . . settled law concerning
1993. The RFRA prohibited government at all levels from substantially
the Religion Clauses of our Constitution. He pointed out that the Native
burdening a persons free exercise of religion, even if such burden
American Church restricted and supervised the sacramental use of
resulted from a generally applicable rule, unless the government could
peyote.Thus, the state had no significant health or safety justification for
demonstrate a compelling state interest and the rule constituted the least
regulating the sacramental drug use. He also observed that Oregon had
restrictive means of furthering that interest.[191] RFRA, in effect, sought
not attempted to prosecute Smith or Black, or any Native Americans, for
to overturn the substance of the Smith ruling and restore the status
that matter, for the sacramental use of peyote. In conclusion, he said
quo prior to Smith. Three years after the RFRA was enacted, however,
that Oregons interest in enforcing its drug laws against religious use of
the Court, dividing 6 to 3, declared the RFRA unconstitutional in City of
peyote (was) not sufficiently compelling to outweigh respondents right
Boerne v. Flores.[192] The Court ruled that RFRA contradicts vital
to the free exercise of their religion.
principles necessary to maintain separation of powers and the federal
The Court went back to the Reynolds and Gobitis doctrine in Smith. The balance. It emphasized the primacy of its role as interpreter of the
Courts standard in Smith virtually eliminated the requirement that the Constitution and unequivocally rejected, on broad institutional grounds,
government justify with a compelling state interest the burdens on a direct congressional challenge of final judicial authority on a question
religious exercise imposed by laws neutral toward religion. The Smith of constitutional interpretation.
in the Everson case that the U.S. Supreme Court adopted Jeffersons
The Court then ended the opinion, viz:
metaphor of a wall of separation between church and state as
encapsulating the meaning of the Establishment Clause. The often and The First Amendment has erected a wall between church and
loosely used phrase separation of church and state does not appear in state. That wall must be kept high and impregnable. We could not
the U.S. Constitution. It became part of U.S. jurisprudence when the approve the slightest breach. New Jersey has not breached it here.[203]
Court in the 1878 case of Reynolds v. United States[198] quoted
By 1971, the Court integrated the different elements of the Courts
Jeffersons famous letter of 1802 to the Danbury Baptist Association in
Establishment Clause jurisprudence that evolved in the 1950s and
narrating the history of the religion clauses, viz:
1960s and laid down a three-pronged test in Lemon v. Kurtzman[204] in
Believing with you that religion is a matter which lies solely between man determining the constitutionality of policies challenged under the
and his God; that he owes account to none other for his faith or his Establishment Clause. This case involved a Pennsylvania statutory
worship; that the legislative powers of the Government reach actions program providing publicly funded reimbursement for the cost of
only, and not opinions, I contemplate with sovereign reverence that act teachers salaries, textbooks, and instructional materials in secular
of the whole American people which declared that their Legislature subjects and a Rhode Island statute providing salary supplements to
should make no law respecting an establishment of religion or teachers in parochial schools. The Lemon test requires a challenged
prohibiting the free exercise thereof, thus building a wall of separation policy to meet the following criteria to pass scrutiny under the
between Church and State.[199] (emphasis supplied) Establishment Clause. First, the statute must have a secular legislative
purpose; second, its primary or principal effect must be one that neither
Chief Justice Waite, speaking for the majority, then added, (c)oming as
advances nor inhibits religion (Board of Education v. Allen, 392 US 236,
this does from an acknowledged leader of the advocates of the measure,
243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute
it may be accepted almost as an authoritative declaration of the scope
must not foster an excessive entanglement with religion. (Walz v.Tax
and effect of the amendment thus secured.[200]
Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409
The interpretation of the Establishment Clause has in large part been in [1970]) (emphasis supplied)[205] Using this test, the Court held that the
cases involving education, notably state aid to private religious schools Pennsylvania statutory program and Rhode Island statute were
and prayer in public schools.[201] In Everson v. Board of Education, for unconstitutional as fostering excessive entanglement between
example, the issue was whether a New Jersey local school board could government and religion.
reimburse parents for expenses incurred in transporting their children to
The most controversial of the education cases involving the
and from Catholic schools. The reimbursement was part of a general
Establishment Clause are the school prayer decisions. Few decisions of
program under which all parents of children in public schools and
the modern Supreme Court have been criticized more intensely than the
nonprofit private schools, regardless of religion, were entitled to
school prayer decisions of the early 1960s.[206] In the 1962 case
reimbursement for transportation costs. Justice Hugo Black, writing for
of Engel v. Vitale,[207] the Court invalidated a New York Board of
a sharply divided Court, justified the reimbursements on the child benefit
Regents policy that established the voluntary recitation of a brief generic
theory, i.e., that the school board was merely furthering the states
prayer by children in the public schools at the start of each school teachers, Catholic priests and a Jewish rabbi and were held weekly from
day. The majority opinion written by Justice Black stated that in this thirty to forty minutes during regular class hours in the regular
country it is no part of the business of government to compose official classrooms of the school building. The religious teachers were
prayers for any group of the American people to recite as part of a employed at no expense to the school authorities but they were subject
religious program carried on by government. In fact, history shows that to the approval and supervision of the superintendent of
this very practice of establishing governmentally composed prayers for schools. Students who did not choose to take religious instruction were
religious services was one of the reasons that caused many of the early required to leave their classrooms and go to some other place in the
colonists to leave England and seek religious freedom in America. The school building for their secular studies while those who were released
Court called to mind that the first and most immediate purpose of the from their secular study for religious instruction were required to attend
Establishment Clause rested on the belief that a union of government the religious classes. The Court held that the use of tax-supported
and religion tends to destroy government and to degrade religion. The property for religious instruction and the close cooperation between the
following year, the Engel decision was reinforced in Abington School school authorities and the religious council in promoting religious
District v. Schempp[208] and Murray v. Curlett[209] where the Court education amounted to a prohibited use of tax-established and tax-
struck down the practice of Bible reading and the recitation of the Lords supported public school system to aid religious groups spread their
prayer in the Pennsylvania and Maryland schools. The Court held that faith. The Court rejected the claim that the Establishment Clause only
to withstand the strictures of the Establishment Clause, a statute must prohibited government preference of one religion over another and not
have a secular legislative purpose and a primary effect that neither an impartial governmental assistance of all religions. In Zorach v.
advances nor inhibits religion. It reiterated, viz: Clauson,[214] however, the Court upheld released time programs
allowing students in public schools to leave campus upon parental
The wholesome neutrality of which this Courts cases speak thus stems
permission to attend religious services while other students attended
from a recognition of the teachings of history that powerful sects or
study hall. Justice Douglas, the writer of the opinion, stressed that (t)he
groups might bring about a fusion of governmental and religious
First Amendment does not require that in every and all respects there
functions or a concert or dependency of one upon the other to the end
shall be a separation of Church and State. The Court
that official support of the State of Federal Government would be placed
distinguished Zorach from McCollum, viz:
behind the tenets of one or of all orthodoxies. This the Establishment
Clause prohibits. And a further reason for neutrality is found in the Free In the McCollum case the classrooms were used for religious instruction
Exercise Clause, which recognizes the value of religious training, and the force of the public school was used to promote that instruction.
teaching and observance and, more particularly, the right of every . . We follow the McCollum case. But we cannot expand it to cover the
person to freely choose his own course with reference thereto, free of present released time program unless separation of Church and State
any compulsion from the state.[210] means that public institutions can make no adjustments of their
schedules to accommodate the religious needs of the people. We
The school prayer decisions drew furious reactions. Religious leaders
cannot read into the Bill of Rights such a philosophy of hostility to
and conservative members of Congress and resolutions passed by
religion.[215]
several state legislatures condemned these decisions.[211] On several
occasions, constitutional amendments have been introduced in In the area of government displays or affirmations of belief, the Court
Congress to overturn the school prayer decisions. Still, the Court has has given leeway to religious beliefs and practices which have acquired
maintained its position and has in fact reinforced it in the 1985 case a secular meaning and have become deeply entrenched in history. For
of Wallace v. Jaffree[212] where the Court struck down an Alabama law instance, in McGowan v. Maryland,[216] the Court upheld laws that
that required public school students to observe a moment of silence for prohibited certain businesses from operating on Sunday despite the
the purpose of meditation or voluntary prayer at the start of each school obvious religious underpinnings of the restrictions. Citing the secular
day. purpose of the Sunday closing laws and treating as incidental the fact
that this day of rest happened to be the day of worship for most
Religious instruction in public schools has also pressed the Court to
Christians, the Court held, viz:
interpret the Establishment Clause. Optional religious instruction within
public school premises and instructional time were declared offensive of It is common knowledge that the first day of the week has come to have
the Establishment Clause in the 1948 case of McCollum v. Board of special significance as a rest day in this country. People of all religions
Education,[213] decided just a year after the seminal Everson case. In and people with no religion regard Sunday as a time for family activity,
this case, interested members of the Jewish, Roman Catholic and a few for visiting friends and relatives, for later sleeping, for passive and active
Protestant faiths obtained permission from the Board of Education to entertainments, for dining out, and the like.[217]
offer classes in religious instruction to public school students in grades
In the 1983 case of Marsh v. Chambers,[218] the Court refused to
four to nine. Religion classes were attended by pupils whose parents
invalidate Nebraskas policy of beginning legislative sessions with
signed printed cards requesting that their children be permitted to
prayers offered by a Protestant chaplain retained at the taxpayers
attend. The classes were taught in three separate groups by Protestant
expense. The majority opinion did not rely on the Lemon test and
instead drew heavily from history and the need for accommodation of churches and religious exercise generally so long as none was favored
popular religious beliefs, viz: over others and none suffered interference.[225] (emphasis supplied)
In light of the unambiguous and unbroken history of more than 200 C. Strict Neutrality v. Benevolent Neutrality
years, there can be no doubt that the practice of opening legislative
To be sure, the cases discussed above, while citing many landmark
sessions with prayer has become the fabric of our society. To invoke
decisions in the religious clauses area, are but a small fraction of the
Divine guidance on a public body entrusted with making the laws is not,
hundreds of religion clauses cases that the U.S. Supreme Court has
in these circumstances, an establishment of religion or a step toward
passed upon. Court rulings contrary to or making nuances of the above
establishment; it is simply a tolerable acknowledgement of beliefs widely
cases may be cited. Professor McConnell poignantly recognizes
held among the people of this country. As Justice Douglas observed,
this, viz:
(w)e are a religious people whose institutions presuppose a Supreme
Being. (Zorach c. Clauson, 343 US 306, 313 [1952])[219] (emphasis Thus, as of today, it is constitutional for a state to hire a Presbyterian
supplied) minister to lead the legislature in daily prayers (Marsh v. Chambers, 463
US783, 792-93[1983]), but unconstitutional for a state to set aside a
Some view the Marsh ruling as a mere aberration as the Court would
moment of silence in the schools for children to pray if they want to
inevitably be embarrassed if it were to attempt to strike down a practice
(Wallace v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional for a
that occurs in nearly every legislature in the United States, including the
state to require employers to accommodate their employees work
U.S. Congress.[220] That Marsh was not an aberration is suggested by
schedules to their sabbath observances (Estate of Thornton v. Caldor,
subsequent cases. In the 1984 case of Lynch v. Donnelly,[221] the
Inc., 472 US 703, 709-10 [1985]) but constitutionally mandatory for a
Court upheld a city-sponsored nativity scene in Rhode Island. By a 5-4
state to require employers to pay workers compensation when the
decision, the majority opinion hardly employed the Lemon test and again
resulting inconsistency between work and sabbath leads to discharge (.
relied on history and the fact that the creche had become a neutral
. .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is constitutional for
harbinger of the holiday season for many, rather than a symbol of
the government to give money to religiously-affiliated organizations to
Christianity.
teach adolescents about proper sexual behavior (Bowen v. Kendrick,
The Establishment Clause has also been interpreted in the area of tax 487 US 589, 611 [1988]), but not to teach them science or history
exemption. By tradition, church and charitable institutions have been (Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional
exempt from local property taxes and their income exempt from federal for the government to provide religious school pupils with books (Board
and state income taxes. In the 1970 case of Walz v. Tax of Education v. Allen, 392 US 236, 238 [1968]), but not with maps
Commission,[222] the New York City Tax Commissions grant of (Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus rides to
property tax exemptions to churches as allowed by state law was religious schools (Everson v. Board of Education, 330 US 1, 17 [1947]),
challenged by Walz on the theory that this required him to subsidize but not from school to a museum on a field trip (Wolman v. Walter, 433
those churches indirectly. The Court upheld the law stressing its US 229, 252-55 [1977]); with cash to pay for state-mandated
neutrality, viz: standardized tests (Committee for Pub. Educ. and Religious Liberty v.
Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-related
It has not singled out one particular church or religious group or even
maintenance (Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80
churches as such; rather, it has granted exemptions to all houses of
[1973]). It is a mess.[226]
religious worship within a broad class of property owned by non-profit,
quasi-public corporations . . . The State has an affirmative policy that But the purpose of the overview is not to review the entirety of the U.S.
considers these groups as beneficial and stabilizing influences in religion clause jurisprudence nor to extract the prevailing case law
community life and finds this classification useful, desirable, and in the regarding particular religious beliefs or conduct colliding with particular
public interest.[223] government regulations. Rather, the cases discussed above suffice to
show that, as legal scholars observe, this area of jurisprudence
The Court added that the exemption was not establishing religion but
has demonstrated two main standards used by the Court in deciding
sparing the exercise of religion from the burden of property taxation
religion clause cases: separation (in the form of strict separation or the
levied on private profit institutions[224] and preventing excessive
tamer version of strict neutrality or separation) and benevolent neutrality
entanglement between state and religion. At the same time, the Court
or accommodation. The weight of current authority, judicial and in terms
acknowledged the long-standing practice of religious tax exemption and
of sheer volume, appears to lie with the separationists, strict or
the Courts traditional deference to legislative bodies with respect to the
tame.[227] But the accommodationists have also attracted a number of
taxing power, viz:
influential scholars and jurists.[228] The two standards producing two
(f)ew concepts are more deeply embedded in the fabric of our national streams of jurisprudence branch out respectively from the history of the
life, beginning with pre-Revolutionary colonial times, than for the First Amendment in England and the American colonies and climaxing
government to exercise . . . this kind of benevolent neutrality toward in Virginia as narrated in this opinion and officially acknowledged by the
Court in Everson, and from American societal life which reveres religion
and practices age-old religious traditions. Stated otherwise, separation - harmony.[235] Thus, according to this Jeffersonian view, the
strict or tame - protects the principle of church-state separation with a Establishment Clause being meant to protect the state from the church,
rigid reading of the principle while benevolent neutrality protects the states hostility towards religion allows no interaction between the
religious realities, tradition and established practice with a flexible two.[236] In fact, when Jefferson became President, he refused to
reading of the principle.[229] The latter also appeals to history in support proclaim fast or thanksgiving days on the ground that these are religious
of its position, viz: exercises and the Constitution prohibited the government from
intermeddling with religion.[237] This approach erects an absolute
The opposing school of thought argues that the First Congress intended
barrier to formal interdependence of religion and state. Religious
to allow government support of religion, at least as long as that support
institutions could not receive aid, whether direct or indirect, from the
did not discriminate in favor of one particular religion. . . the Supreme
state. Nor could the state adjust its secular programs to alleviate
Court has overlooked many important pieces of history. Madison, for
burdens the programs placed on believers.[238] Only the complete
example, was on the congressional committee that appointed a
separation of religion from politics would eliminate the formal influence
chaplain, he declared several national days of prayer and fasting during
of religious institutions and provide for a free choice among political
his presidency, and he sponsored Jeffersons bill for punishing Sabbath
views thus a strict wall of separation is necessary.[239] Strict separation
breakers; moreover, while president, Jefferson allowed federal support
faces difficulties, however, as it is deeply embedded in history and
of religious missions to the Indians. . . And so, concludes one recent
contemporary practice that enormous amounts of aid, both direct and
book, there is no support in the Congressional records that either the
indirect, flow to religion from government in return for huge amounts of
First Congress, which framed the First Amendment, or its principal
mostly indirect aid from religion. Thus, strict separationists are caught in
author and sponsor, James Madison, intended that Amendment to
an awkward position of claiming a constitutional principle that has never
create a state of complete independence between religion and
existed and is never likely to.[240]
government. In fact, the evidence in the public documents goes the
other way.[230] (emphasis supplied) A tamer version of the strict separationist view, the strict
neutrality or separationist view is largely used by the Court, showing the
To succinctly and poignantly illustrate the historical basis of
Courts tendency to press relentlessly towards a more secular
benevolent neutrality that gives room for accommodation, less than
society.[241] It finds basis in the Everson case where the Court declared
twenty-four hours after Congress adopted the First Amendments
that Jeffersons wall of separation encapsulated the meaning of the First
prohibition on laws respecting an establishment of religion, Congress
Amendment but at the same time held that the First Amendment
decided to express its thanks to God Almighty for the many blessings
requires the state to be neutral in its relations with groups of religious
enjoyed by the nation with a resolution in favor of a presidential
believers and non-believers; it does not require the state to be their
proclamation declaring a national day of Thanksgiving and Prayer. Only
adversary. State power is no more to be used so as to handicap religions
two members of Congress opposed the resolution, one on the ground
than it is to favor them. (emphasis supplied)[242]While the strict
that the move was a mimicking of European customs, where they made
neutrality approach is not hostile to religion, it is strict in holding that
a mere mockery of thanksgivings, the other on establishment clause
religion may not be used as a basis for classification for purposes of
concerns. Nevertheless, the salutary effect of thanksgivings throughout
governmental action, whether the action confers rights or privileges or
Western history was acknowledged and the motion was passed without
imposes duties or obligations. Only secular criteria may be the basis of
further recorded discussion.[231] Thus, accommodationists also go
government action. It does not permit, much less require,
back to the framers to ascertain the meaning of the First Amendment,
accommodation of secular programs to religious belief.[243]Professor
but prefer to focus on acts rather than words. Contrary to the claim of
Kurland wrote, viz:
separationists that rationalism pervaded America in the late 19th century
and that America was less specifically Christian during those years than The thesis proposed here as the proper construction of the religion
at any other time before or since,[232]accommodationaists claim that clauses of the first amendment is that the freedom and separation
American citizens at the time of the Constitutions origins were a clauses should be read as a single precept that government cannot
remarkably religious people in particularly Christian terms.[233] utilize religion as a standard for action or inaction because these clauses
prohibit classification in terms of religion either to confer a benefit or to
The two streams of jurisprudence - separationist or accommodationist -
impose a burden.[244]
are anchored on a different reading of the wall of separation. The strict
separtionist view holds that Jefferson meant the wall of separation to The Court has repeatedly declared that religious freedom means
protect the state from the church. Jefferson was a man of the government neutrality in religious matters and the Court has also
Enlightenment Era of the eighteenth century, characterized by the repeatedly interpreted this policy of neutrality to prohibit government
rationalism and anticlericalism of that philosophic bent.[234] He has from acting except for secular purposes and in ways that have primarily
often been regarded as espousing Deism or the rationalistic belief in a secular effects.[245]
natural religion and natural law divorced from its medieval connection
Prayer in public schools is an area where the Court has applied strict
with divine law, and instead adhering to a secular belief in a universal
neutrality and refused to allow any form of prayer, spoken or silent, in
the public schools as in Engel and Schempp.[246] The McCollum a conflict between religious and secular (political); the religious style was
case prohibiting optional religious instruction within public school biblical and evangelical in character while the secular style was
premises during regular class hours also demonstrates strict grounded in natural religion, more generic and philosophical in its
neutrality. In these education cases, the Court refused to uphold the religious orientation.[255]
government action as they were based not on a secular but on a
The Williams wall is, however, breached for the church is in the state
religious purpose. Strict neutrality was also used
and so the remaining purpose of the wall is to safeguard religious
in Reynolds and Smithwhich both held that if government acts in pursuit
liberty. Williams view would therefore allow for interaction between
of a generally applicable law with a secular purpose that merely
church and state, but is strict with regard to state action which would
incidentally burdens religious exercise, the First Amendment has not
threaten the integrity of religious commitment.[256] His conception of
been offended. However, if the strict neutrality standard is applied in
separation is not total such that it provides basis for certain interactions
interpreting the Establishment Clause, it could de facto void religious
between church and state dictated by apparent necessity or
expression in the Free Exercise Clause. As pointed out by Justice
practicality.[257] This theological view of separation is found in Williams
Goldberg in his concurring opinion in Schempp, strict neutrality could
writings, viz:
lead to a brooding and pervasive devotion to the secular and a passive,
or even active, hostility to the religious which is prohibited by the . . . when they have opened a gap in the hedge or wall of separation
Constitution.[247] Professor Laurence Tribe commented in his between the garden of the church and the wilderness of the world, God
authoritative treatise, viz: hath ever broke down the wall itself, removed the candlestick, and made
his garden a wilderness, as this day. And that therefore if He will eer
To most observers. . . strict neutrality has seemed incompatible with the
please to restore His garden and paradise again, it must of necessity be
very idea of a free exercise clause. The Framers, whatever specific
walled in peculiarly unto Himself from the world. . .[258]
applications they may have intended, clearly envisioned religion as
something special; they enacted that vision into law by guaranteeing the Chief Justice Burger spoke of benevolent neutrality in Walz, viz:
free exercise of religion but not, say, of philosophy or science. The strict
neutrality approach all but erases this distinction. Thus it is not surprising The general principle deducible from the First Amendment and all that
that the Supreme Court has rejected strict neutrality, permitting and has been said by the Court is this: that we will not tolerate either
sometimes mandating religious classifications.[248] governmentally established religion or governmental interference with
religion. Short of those expressly proscribed governmental acts there is
The separationist approach, whether strict or tame, is caught in a room for play in the joints productive of a benevolent neutrality which will
dilemma because while the Jeffersonian wall of separation captures the permit religious exercise to exist without sponsorship and without
spirit of the American ideal of church-state separation, in real life church interference.[259] (emphasis supplied)
and state are not and cannot be totally separate.[249] This is all the
more true in contemporary times when both the government and religion The Zorach case expressed the doctrine of accommodation,[260] viz:
Consequently, the Court has also decided cases employing benevolent no concert or union or dependency one or the other. That is the common
neutrality. Benevolent neutrality which gives room for accommodation is sense of the matter. Otherwise, the state and religion would be aliens to
buttressed by a different view of the wall of separation associated with each other - hostile, suspicious, and even unfriendly. Churches could
Williams, founder of the Rhode Island colony. In Mark DeWolfe Howes not be required to pay even property taxes. Municipalities would not be
classic, The Garden and the Wilderness, he asserts that to the extent permitted to render police or fire protection to religious
the Founders had a wall of separation in mind, it was unlike the groups. Policemen who helped parishioners into their places of worship
Jeffersonian wall that is meant to protect the state from the church; would violate the Constitution. Prayers in our legislative halls; the
instead, the wall is meant to protect the church from the state,[251] i.e., appeals to the Almighty in the messages of the Chief Executive; the
the garden of the church must be walled in for its own protection from proclamations making Thanksgiving Day a holiday; so help me God in
the wilderness of the world[252] with its potential for corrupting those our courtroom oaths- these and all other references to the Almighty that
values so necessary to religious commitment.[253] Howe called this the run through our laws, our public rituals, our ceremonies would be flouting
theological or evangelical rationale for church-state separation while the the First Amendment. A fastidious atheist or agnostic could even object
wall espoused by enlightened statesmen such as Jefferson and to the supplication with which the Court opens each session: God save
Madison, was a political rationale seeking to protect politics from the United States and this Honorable Court.
intrusions by the church.[254] But it has been asserted that this contrast
xxx xxx xxx
between the Williams and Jeffersonian positions is more accurately
described as a difference in kinds or styles of religious thinking, not as
We are a religious people whose institutions presuppose a Supreme the separationists have a different explanation. To characterize these
Being. We guarantee the freedom to worship as one chooses. . . When as de jure establishments according to the principle of the Jeffersonian
the state encourages religious instruction or cooperates with religious wall, the U.S. Supreme Court, the many dissenting and concurring
authorities by adjusting the schedule of public events, it follows the best opinions explain some of these practices as de minimisinstances of
of our traditions. For it then respects the religious nature of our people government endorsement or as historic governmental practices that
and accommodates the public service to their spiritual needs. To hold have largely lost their religious significance or at least have proven not
that it may not would be to find in the Constitution a requirement that the to lead the government into further involvement with religion.[268]
government show a callous indifference to religious groups. . . But we
With religion looked upon with benevolence and not hostility, benevolent
find no constitutional requirement which makes it necessary for
neutrality allows accommodation of religion under certain
government to be hostile to religion and to throw its weight against
circumstances. Accommodations are government policies that take
efforts to widen their effective scope of religious
religion specifically into account not to promote the governments favored
influence.[261] (emphases supplied)
form of religion, but to allow individuals and groups to exercise their
Benevolent neutrality is congruent with the sociological proposition that religion without hindrance. Their purpose or effect therefore is to remove
religion serves a function essential to the survival of society itself, thus a burden on, or facilitate the exercise of, a persons or institutions
there is no human society without one or more ways of performing the religion. As Justice Brennan explained, the government [may] take
essential function of religion. Although for some individuals there may religion into accountto exempt, when possible, from generally applicable
be no felt need for religion and thus it is optional or even dispensable, governmental regulation individuals whose religious beliefs and
for society it is not, which is why there is no human society without one practices would otherwise thereby be infringed, or to create without state
or more ways of performing the essential function of religion. Even in involvement an atmosphere in which voluntary religious exercise may
ostensibly atheistic societies, there are vigorous underground religion(s) flourish.[269] (emphasis supplied) Accommodation is forbearance and
and surrogate religion(s) in their ideology.[262] As one sociologist wrote: not alliance. it does not reflect agreement with the minority,
but respect for the conflict between the temporal and spiritual authority
It is widely held by students of society that there are certain functional
in which the minority finds itself.[270]
prerequisites without which society would not continue to exist. At first
glance, this seems to be obvious - scarcely more than to say that an Accommodation is distinguished from strict neutrality in that the latter
automobile could not exist, as a going system, without a carburetor. . . holds that government should base public policy solely on secular
Most writers list religion among the functional prerequisites.[263] considerations, without regard to the religious consequences of its
actions. The debate between accommodation and strict neutrality is at
Another noted sociologist, Talcott Parsons, wrote: There is no known
base a question of means: Is the freedom of religion best achieved when
human society without something which modern social scientists would
the government is conscious of the effects of its action on the various
classify as a religionReligion is as much a human universal as
religious practices of its people, and seeks to minimize interferences
language.[264]
with those practices? Or is it best advanced through a policy of religious
Benevolent neutrality thus recognizes that religion plays an important blindness - keeping government aloof from religious practices and
role in the public life of the United States as shown by many traditional issues? An accommodationist holds that it is good public policy, and
government practices which, to strict neutrality, pose Establishment sometimes constitutionally required, for the state to make conscious and
Clause questions. Among these are the inscription of In God We Trust deliberate efforts to avoid interference with religious freedom. On the
on American currency, the recognition of America as one nation under other hand, the strict neutrality adherent believes that it is good public
God in the official pledge of allegiance to the flag, the Supreme Courts policy, and also constitutionally required, for the government to avoid
time-honored practice of opening oral argument with the invocation God religion-specific policy even at the cost of inhibiting religious
save the United States and this honorable Court, and the practice of exercise.[271]
Congress and every state legislature of paying a chaplain, usually of a
There are strong and compelling reasons, however, to take
particular Protestant denomination to lead representatives in
the accommodationist position rather than the strict neutrality
prayer.[265] These practices clearly show the preference for one
position.First, the accommodationist interpretation is most consistent
theological viewpoint -the existence of and potential for intervention by
with the language of the First Amendment. The religion clauses contain
a god - over the contrary theological viewpoint of atheism. Church and
two parallel provisions, both specifically directed at religion. The
government agencies also cooperate in the building of low-cost housing
government may not establish religion and neither may government
and in other forms of poor relief, in the treatment of alcoholism and drug
prohibit it. Taken together, the religion clauses can be read most
addiction, in foreign aid and other government activities with strong
plausibly as warding off two equal and opposite threats to religious
moral dimension.[266] The persistence of these de
freedom - government action that promotes the (political) majoritys
facto establishments are in large part explained by the fact that
favored brand of religion and government action that impedes religious
throughout history, the evangelical theory of separation, i.e., Williams
practices not favored by the majority. The substantive end in view is the
wall, has demanded respect for these de facto establishments.[267] But
preservation of the autonomy of religious life and not just the formal freedom. Aside from laws against serving alcoholic beverages to minors
process value of ensuring that government does not act on the basis of conflicting with celebration of communion, regulations requiring hard
religious bias. On the other hand, strict neutrality interprets the religion hats in construction areas can effectively exclude Amish and Sikhs from
clauses as allowing government to do whatever it desires to or for the workplace, or employment anti-discrimination laws can conflict with
religion, as long as it does the same to or for comparable secular the Roman Catholic male priesthood, among others. Exemptions from
entities. Thus, for example, if government prohibits all alcoholic such laws are easy to craft and administer and contribute much to
consumption by minors, it can prohibit minors from taking part in promoting religious freedom at little cost to public policy. Without
communion. Paradoxically, this view would make the religion clauses exemptions, legislature would be frequently forced to choose between
violate the religion clauses, so to speak, since the religion clauses single violating religious conscience of a segment of the population or
out religion by name for special protection. Second, the dispensing with legislation it considers beneficial to society as a
accommodationist position best achieves the purposes of the First whole. Exemption seems manifestly more reasonable than either of the
Amendment. The principle underlying the First Amendment is alternative: no exemption or no law.[272]
that freedom to carry out ones duties to a Supreme Being is an
Benevolent neutrality gives room for different kinds
inalienable right, not one dependent on the grace of
of accommodation: those which are constitutionally compelled, i.e.,
legislature. Although inalienable, it is necessarily limited by the rights of
required by the Free Exercise Clause; and those which are discretionary
others, including the public right of peace and good order. Nevertheless
or legislative, i.e., and those not required by the Free Exercise Clause
it is a substantive right and not merely a privilege against discriminatory
but nonetheless permitted by the Establishment Clause.[273] Some
legislation. The accomplishment of the purpose of the First Amendment
Justices of the Supreme Court have also used the
requires more than the religion blindness of strict neutrality. With the
term accommodation to describe government actions that acknowledge
pervasiveness of government regulation, conflicts with religious
or express prevailing religious sentiments of the community such as
practices become frequent and intense. Laws that are suitable for
display of a religious symbol on public property or the delivery of a prayer
secular entities are sometimes inappropriate for religious entities, thus
at public ceremonial events.[274] Stated otherwise, using benevolent
the government must make special provisions to preserve a degree of
neutrality as a standard could result to three situations
independence for religious entities for them to carry out their religious
of accommodation: those where accommodation is required, those
missions according to their religious beliefs. Otherwise, religion will
where it is permissible, and those where it is prohibited. In the first
become just like other secular entities subject to pervasive regulation by
situation, accommodation is required to preserve free exercise
majoritarian institutions. Third, the accommodationist interpretation is
protections and not unconstitutionally infringe on religious liberty or
particularly necessary to protect adherents of minority religions from the
create penalties for religious freedom. Contrary to the Smith declaration
inevitable effects of majoritarianism,which include ignorance and
that free exercise exemptions are intentional government advancement,
indifference and overt hostility to the minority. In a democratic republic,
these exemptions merely relieve the prohibition on the free exercise thus
laws are inevitably based on the presuppositions of the majority, thus
allowing the burdened religious adherent to be left alone. The state must
not infrequently, they come into conflict with the religious scruples of
create exceptions to laws of general applicability when these laws
those holding different world views, even in the absence of a deliberate
threaten religious convictions or practices in the absence of a compelling
intent to interfere with religious practice. At times, this effect is
state interest.[275] By allowing such exemptions, the Free Exercise
unavoidable as a practical matter because some laws are so necessary
Clause does not give believers the right or privilege to choose for
to the common good that exceptions are intolerable. But in other
themselves to override socially-prescribed decision; it allows them to
instances, the injury to religious conscience is so great and the
obey spiritual rather than temporal authority[276] for those who seriously
advancement of public purposes so small or incomparable that only
invoke the Free Exercise Clause claim to be fulfilling a solemn
indifference or hostility could explain a refusal to make
duty. Religious freedom is a matter less of rights than duties; more
exemptions. Because of plural traditions, legislators and executive
precisely, it is a matter of rights derived from duties. To deny a person
officials are frequently willing to make such exemptions when the need
or a community the right to act upon such a duty can be justified only by
is brought to their attention, but this may not always be the case when
appeal to a yet more compelling duty. Of course, those denied will
the religious practice is either unknown at the time of enactment or is for
usually not find the reason for the denial compelling. Because they may
some reason unpopular. In these cases, a constitutional interpretation
turn out to be right about the duty in question, and because, even if they
that allows accommodations prevents needless injury to the religious
are wrong, religion bears witness to that which transcends the political
consciences of those who can have an influence in the legislature; while
order, such denials should be rare and painfully reluctant.[277]
a constitutional interpretation that requires accommodations extends
this treatment to religious faiths that are less able to protect themselves The Yoder case is an example where the Court held that the state must
in the political arena. Fourth, the accommodationist position is practical accommodate the religious beliefs of the Amish who objected to
as it is a commonsensical way to deal with the various needs and beliefs enrolling their children in high school as required by law. The Sherbert
of different faiths in a pluralistic nation. Without accommodation, many case is another example where the Court held that the state
otherwise beneficial laws would interfere severely with religious unemployment compensation plan must accommodate the religious
convictions of Sherbert.[278] In these cases of burdensome effect, the combined) as in Sherbert is followed in weighing the states interest and
modern approach of the Court has been to apply strict scrutiny, i.e., to religious freedom when these collide. Three questions are answered in
declare the burden as permissible, the Court requires the state to this process. First, (h)as the statute or government action created a
demonstrate that the regulation which burdens the religious exercise burden on the free exercise of religion? The courts often look into
pursues a particularly important or compelling government goal through the sincerity of the religious belief, but without inquiring into the truth of
the least restrictive means. If the states objective could be served as the belief because the Free Exercise Clause prohibits inquiring about its
well or almost as well by granting an exemption to those whose religious truth as held in Ballard and Cantwell. The sincerity of the claimants
beliefs are burdened by the regulation, such an exemption must be belief is ascertained to avoid the mere claim of religious beliefs to
given.[279] This approach of the Court on burdensome effect was only escape a mandatory regulation. As evidence of sincerity, the U.S.
applied since the 1960s. Prior to this time, the Court took the Supreme Court has considered historical evidence as
separationist view that as long as the state was acting in pursuit of non- in Wisconsin where the Amish people had held a long-standing
religious ends and regulating conduct rather than pure religious beliefs, objection to enrolling their children in ninth and tenth grades in public
the Free Exercise Clause did not pose a hindrance such as high schools. In another case, Dobkin v. District of Columbia,[285] the
in Reynolds.[280] In the second situation where accommodation Court denied the claim of a party who refused to appear in court on
is permissible, the state may, but is not required to, accommodate Saturday alleging he was a Sabbatarian, but the Court noted that he
religious interests. The Walz case illustrates this situation where the regularly conducted business on Saturday. Although it is true that the
Court upheld the constitutionality of tax exemption given by New York to Court might erroneously deny some claims because of a misjudgment
church properties, but did not rule that the state was required to provide of sincerity, this is not as argument to reject all claims by not allowing
tax exemptions. The Court declared that (t)he limits of permissible state accommodation as a rule. There might be injury to the particular
accommodation to religion are by no means co-extensive with the claimant or to his religious community, but for the most part, the injustice
noninterference mandated by the Free Exercise Clause.[281] The Court is done only in the particular case.[286] Aside from the sincerity, the
held that New York could have an interest in encouraging religious court may look into the centrality of those beliefs, assessing them not on
values and avoiding threats to those values through the burden of an objective basis but in terms of the opinion and belief of the person
property taxes. Other examples are the Zorach case allowing released seeking exemption. In Wisconsin, for example, the Court noted that the
time in public schools and Marsh allowing payment of legislative Amish peoples convictions against becoming involved in public high
chaplains from public funds. Finally, in the situation where schools were central to their way of life and faith. Similarly, in Sherbert,
accommodation is prohibited, establishment concerns prevail over the Court concluded that the prohibition against Saturday work was a
potential accommodation interests. To say that there are valid cardinal principle.[287] Professor Lupu puts to task the person claiming
exemptions buttressed by the Free Exercise Clause does not mean that exemption, viz:
all claims for free exercise exemptions are valid.[282] An example where
On the claimants side, the meaning and significance of the relevant
accommodation was prohibited is McCollum where the Court ruled
religious practice must be demonstrated. Religious command should
against optional religious instruction in the public school
outweigh custom, individual conscience should count for more than
premises.[283] In effect, the last situation would arrive at a strict
personal convenience, and theological principle should be of greater
neutrality conclusion.
significance than institutional ease.Sincerity matters, (footnote omitted)
In the first situation where accommodation is required, the approach and longevity of practice - both by the individual and within the
follows this basic framework: individuals religious tradition - reinforces sincerity.Most importantly, the
law of free exercise must be inclusive and expansive, recognizing non-
If the plaintiff can show that a law or government practice inhibits the
Christian religions - eastern, Western, aboriginal and otherwise - as
free exercise of his religious beliefs, the burden shifts to the government
constitutionally equal to their Christian counterparts, and accepting of
to demonstrate that the law or practice is necessary to the
the intensity and scope of fundamentalist creed.[288]
accomplishment of some important (or compelling) secular objective
and that it is the least restrictive means of achieving that objective. If the Second, the court asks: (i)s there a sufficiently compelling state interest
plaintiff meets this burden and the government does not, the plaintiff is to justify this infringement of religious liberty? In this step, the
entitled to exemption from the law or practice at issue. In order to be government has to establish that its purposes are legitimate for the state
protected, the claimants beliefs must be sincere, but they need not and that they are compelling. Government must do more than assert the
necessarily be consistent, coherent, clearly articulated, or congruent objectives at risk if exemption is given; it must precisely show how and
with those of the claimants religious denomination. Only beliefs rooted to what extent those objectives will be undermined if exemptions are
in religion are protected by the Free Exercise Clause; secular beliefs, granted.[289] The person claiming religious freedom, on the other hand,
however sincere and conscientious, do not suffice.[284] will endeavor to show that the interest is not legitimate or that the
purpose, although legitimate, is not compelling compared to
In other words, a three-step process (also referred to as the two-step
infringement of religious liberty. This step involves balancing, i.e.,
balancing process supra when the second and third steps are
weighing the interest of the state against religious liberty to determine
which is more compelling under the particular set of facts. The greater guaranteed religious freedom a month later or on January 22, 1899 upon
the states interests, the more central the religious belief would have to the adoption of the Malolos Constitution of the Philippine Republic under
be to overcome it. In assessing the state interest, the court will have to General Emilio Aguinaldo. It provided that the State recognizes the
determine the importance of the secular interest and the extent to which liberty and equality of all religion (de todos los cultos) in the same
that interest will be impaired by an exemption for the religious manner as the separation of the Church and State. But the Malolos
practice. Should the court find the interest truly compelling, there will be Constitution and government was short-lived as the Americans took
no requirement that the state diminish the effectiveness of its regulation over the reigns of government.[298]
by granting the exemption.[290]
With the Philippines under the American regime, President McKinley
Third, the court asks: (h)as the state in achieving its legitimate purposes issued Instructions to the Second Philippine Commission, the body
used the least intrusive means possible so that the free exercise is not created to take over the civil government in the Philippines in
infringed any more than necessary to achieve the legitimate goal of the 1900. The Instructions guaranteed religious freedom, viz:
state?[291] The analysis requires the state to show that the means in
That no law shall be made respecting the establishment of religion or
which it is achieving its legitimate state objective is the least intrusive
prohibiting the free exercise thereof, and that the free exercise and
means, i.e., it has chosen a way to achieve its legitimate state end that
enjoyment of religious profession and worship without discrimination or
imposes as little as possible on religious liberties. In Cantwell, for
preference shall forever be allowed ... that no form of religion and no
example, the Court invalidated the license requirement for the door-to-
minister of religion shall be forced upon the community or upon any
door solicitation as it was a forbidden burden on religious liberty, noting
citizen of the Islands, that, on the other hand, no minister of religion shall
that less drastic means of insuring peace and tranquility existed. As a
be interfered with or molested in following his calling.[299]
whole, in carrying out the compelling state interest test, the Court should
give careful attention to context, both religious and regulatory, to achieve This provision was based on the First Amendment of the United States
refined judgment.[292] Constitution. Likewise, the Instructions declared that (t)he separation
between State and Church shall be real, entire and absolute.[300]
In sum, as shown by U.S. jurisprudence on religion clause cases, the
competing values of secular government and religious freedom create Thereafter, every organic act of the Philippines contained a provision on
tensions that make constitutional law on the subject of religious liberty freedom of religion. Similar to the religious freedom clause in
unsettled, mirroring the evolving views of a dynamic society.[293] the Instructions, the Philippine Bill of 1902 provided that:
VII. Religion Clauses in the Philippines No law shall be made respecting an establishment of religion or
prohibiting the free exercise thereof, and that free exercise and
A. History
enjoyment of religious worship, without discrimination or preference,
Before our country fell under American rule, the blanket of Catholicism shall forever be allowed.
covered the archipelago. There was a union of church and state and
In U.S. v. Balcorta,[301] the Court stated that the Philippine Bill of 1902
Catholicism was the state religion under the Spanish Constitution of
caused the complete separation of church and state, and the abolition
1876. Civil authorities exercised religious functions and the friars
of all special privileges and all restrictions theretofor conferred or
exercised civil powers.[294] Catholics alone enjoyed the right of
imposed upon any particular religious sect.[302]
engaging in public ceremonies of worship.[295] Although the Spanish
Constitution itself was not extended to the Philippines, Catholicism was The Jones Law of 1916 carried the same provision, but expanded it with
also the established church in our country under the Spanish a restriction against using public money or property for religious
rule.Catholicism was in fact protected by the Spanish Penal Code of purposes, viz:
1884 which was in effect in the Philippines. Some of the offenses in
chapter six of the Penal Code entitled Crimes against Religion and That no law shall be made respecting an establishment of religion or
Worship referred to crimes against the state religion.[296] The coming prohibiting the free exercise thereof, and that the free exercise and
of the Americans to our country, however, changed this state-church enjoyment of religious profession and worship without discrimination or
scheme for with the advent of this regime, the unique American preference, shall forever be allowed; and no religious test shall be
experiment of separation of church and state was transported to required for the exercise of civil or political rights. No public money or
Philippine soil. property shall ever be appropriated, applied, donated, or used, directly
or indirectly, for the use, benefit, or support of any sect, church,
Even as early as the conclusion of the Treaty of Paris between the denomination, sectarian institution, or system of religion, or for the use,
United States and Spain on December 10, 1898, the American benefit or support of any priest, preacher, minister, or other religious
guarantee of religious freedom had been extended to the teachers or dignitary as such.
Philippines. The Treaty provided that the inhabitants of the territories
over which Spain relinquishes or cedes her sovereignty shall be secured This was followed by the Philippine Independence Law or Tydings-
in the free exercise of religion.[297] Even the Filipinos themselves McDuffie Law of 1934 which guaranteed independence to the
Philippines and authorized the drafting of a Philippine constitution. It limitations of the First Amendment of the U.S. Constitution when it was
enjoined Filipinos to include freedom of religion in drafting their included in the 1935 Bill of Rights, it is not surprising that nearly all the
constitution preparatory to the grant of independence. The law major Philippine cases involving the religion clauses turn to U.S.
prescribed that (a)bsolute toleration of religious sentiment shall be jurisprudence in explaining the nature, extent and limitations of these
secured and no inhabitant or religious organization shall be molested in clauses. However, a close scrutiny of these cases would also reveal that
person or property on account of religious belief or mode of while U.S. jurisprudence on religion clauses flows into two main streams
worship.[303] of interpretation - separation and benevolent neutrality - the well-spring
of Philippine jurisprudence on this subject is for the most part,
The Constitutional Convention then began working on the 1935
benevolent neutrality which gives room for accommodation.
Constitution. In their proceedings, Delegate Jose P. Laurel as Chairman
of the Committee on Bill of Rights acknowledged that (i)t was the Treaty B. Jurisprudence
of Paris of December 10, 1898, which first introduced religious toleration
In revisiting the landscape of Philippine jurisprudence on the religion
in our country. President McKinleys Instructions to the Second
clauses, we begin with the definition of religion. Religion is derived from
Philippine Commission reasserted this right which later was
the Middle English religioun, from Old French religion, from Latin religio,
incorporated into the Philippine Bill of 1902 and in the Jones
vaguely referring to a bond between man and the gods.[308] This pre-
Law.[304] In accordance with the Tydings-McDuffie Law, the 1935
Christian term for the cult and rituals of pagan Rome was first
Constitution provided in the Bill of Rights, Article IV, Section 7, viz:
Christianized in the Latin translation of the Bible.[309] While the U.S.
Sec. 7. No law shall be made respecting an establishment of religion, or Supreme Court has had to take up the challenge of defining the
prohibiting the free exercise thereof, and the free exercise and parameters and contours of religion to determine whether a non-theistic
enjoyment of religious profession and worship, without discrimination or belief or act is covered by the religion clauses, this Court has not been
preference, shall forever be allowed. No religious test shall be required confronted with the same issue. In Philippine jurisprudence, religion, for
for the exercise of civil or political rights. purposes of the religion clauses, has thus far been interpreted as
theistic. In 1937, the Philippine case of Aglipay v. Ruiz[310]involving the
This provision, borrowed from the Jones Law, was readily approved by
Establishment Clause, defined religion as a profession of faith to an
the Convention.[305] In his speech as Chairman of the Committee on
active power that binds and elevates man to his Creator.Twenty years
Bill of Rights, Delegate Laurel said that modifications in phraseology of
later, the Court cited the Aglipay definition in American Bible Society v.
the Bill of Rights in the Jones Law were avoided whenever possible
City of Manila,[311] a case involving the Free Exercise clause. The latter
because the principles must remain couched in a language expressive
also cited the American case of Davis in defining religion, viz: (i)t has
of their historical background, nature, extent and limitations as
reference to ones views of his relations to His Creator and to the
construed and interpreted by the great statesmen and jurists that
obligations they impose of reverence to His being and character and
vitalized them.[306]
obedience to His Will. The Beason definition, however, has been
The 1973 Constitution which superseded the 1935 Constitution expanded in U.S. jurisprudence to include non-theistic beliefs.
contained an almost identical provision on religious freedom in the Bill
1. Free Exercise Clause
of Rights in Article IV, Section 8, viz:
Freedom of choice guarantees the liberty of the religious conscience and
Sec. 8. No law shall be made respecting an establishment of religion, or
prohibits any degree of compulsion or burden, whether direct or indirect,
prohibiting the free exercise thereof. The free exercise and enjoyment
in the practice of ones religion. The Free Exercise Clause principally
of religious profession and worship, without discrimination or preference,
guarantees voluntarism, although the Establishment Clause also
shall forever be allowed. No religious test shall be required for the
assures voluntarism by placing the burden of the advancement of
exercise of civil or political rights.
religious groups on their intrinsic merits and not on the support of the
This time, however, the General Provisions in Article XV added in state.[312]
Section 15 that (t)he separation of church and state shall be inviolable.
In interpreting the Free Exercise Clause, the realm of belief poses no
Without discussion by the 1986 Constitutional Commission, the 1973 difficulty. The early case of Gerona v. Secretary of Education[313] is
religious clauses were reproduced in the 1987 Constitution under the instructive on the matter, viz:
Bill of Rights in Article III, Section 5.[307] Likewise, the provision on
The realm of belief and creed is infinite and limitless bounded only by
separation of church and state was included verbatim in the 1987
ones imagination and thought. So is the freedom of belief, including
Constitution, but this time as a principle in Section 6, Article II entitled
religious belief, limitless and without bounds. One may believe in most
Declaration of Principles and State Policies.
anything, however strange, bizarre and unreasonable the same may
Considering the American origin of the Philippine religion clauses and appear to others, even heretical when weighed in the scales of
the intent to adopt the historical background, nature, extent and orthodoxy or doctrinal standards. But between the freedom of belief and
the exercise of said belief, there is quite a stretch of road to travel.[314]
The difficulty in interpretation sets in when belief is externalized into prior restraint. The Court held, however, that the fixed amount of
speech and action. registration fee was not imposed for the exercise of a privilege like a
license tax which American Bible Society ruled was violative of religious
Religious speech comes within the pale of the Free Exercise Clause as
freedom. Rather, the registration fee was merely an administrative fee
illustrated in the American Bible Society case. In that case, plaintiff
to defray part of the cost of registration which was a central feature of
American Bible Society was a foreign, non-stock, non-profit, religious
the VAT system. Citing Jimmy Swaggart Ministries v. Board of
missionary corporation which sold bibles and gospel portions of the bible
Equalization,[318] the Court also declared prefatorily that the Free
in the course of its ministry. The defendant City of Manila required
Exercise of Religion Clause does not prohibit imposing a generally
plaintiff to secure a mayors permit and a municipal license as ordinarily
applicable sales and use tax on the sale of religious materials by a
required of those engaged in the business of general merchandise under
religious organization. In the Courts resolution of the motion for
the citys ordinances. Plaintiff argued that this amounted to religious
reconsideration of the Tolentino decision, the Court noted that the
censorship and restrained the free exercise and enjoyment of religious
burden on religious freedom caused by the tax was just similar to any
profession, to wit: the distribution and sale of bibles and other religious
other economic imposition that might make the right to disseminate
literature to the people of the Philippines.
religious doctrines costly.
After defining religion, the Court, citing Tanada and Fernando, made this
Two years after American Bible Society came the 1959 case of Gerona
statement, viz:
v. Secretary of Education,[319] this time involving conductexpressive of
The constitutional guaranty of the free exercise and enjoyment of religious belief colliding with a rule prescribed in accordance with law. In
religious profession and worship carries with it the right to disseminate this case, petitioners were members of the Jehovahs Witnesses. They
religious information. Any restraint of such right can only be justified like challenged a Department Order issued by the Secretary of Education
other restraints of freedom of expression on the grounds that there is implementing Republic Act No. 1265 which prescribed compulsory flag
a clear and present danger of any substantive evil which the State has ceremonies in all public schools. In violation of the Order, petitioners
the right to prevent. (Tanada and Fernando on the Constitution of the children refused to salute the Philippine flag, sing the national anthem,
Philippines, vol. 1, 4th ed., p. 297) (emphasis supplied) or recite the patriotic pledge, hence they were expelled from
school. Seeking protection under the Free Exercise Clause, petitioners
This was the Courts maiden unequivocal affirmation of the clear and claimed that their refusal was on account of their religious belief that the
present danger rule in the religious freedom area, and in Philippine Philippine flag is an image and saluting the same is contrary to their
jurisprudence, for that matter.[315] The case did not clearly show, religious belief. The Court stated, viz:
however, whether the Court proceeded to apply the test to the facts and
issues of the case, i.e., it did not identify the secular value the . . . If the exercise of religious belief clashes with the established
government regulation sought to protect, whether the religious speech institutions of society and with the law, then the former must yield to the
posed a clear and present danger to this or other secular value protected latter. The Government steps in and either restrains said exercise or
by government, or whether there was danger but it could not be even prosecutes the one exercising it. (emphasis supplied)[320]
characterized as clear and present. It is one thing to apply the test and
The Court then proceeded to determine if the acts involved constituted
find that there is no clear and present danger, and quite another not to
a religious ceremony in conflict with the beliefs of the petitioners with the
apply the test altogether.
following justification:
Instead, the Court categorically held that the questioned ordinances
After all, the determination of whether a certain ritual is or is not a
were not applicable to plaintiff as it was not engaged in the business or
religious ceremony must rest with the courts. It cannot be left to a
occupation of selling said merchandise for profit. To add, the Court,
religious group or sect, much less to a follower of said group or sect;
citing Murdock v. Pennsylvania,[316] ruled that applying the ordinance
otherwise, there would be confusion and misunderstanding for there
requiring it to secure a license and pay a license fee or tax would impair
might be as many interpretations and meaning to be given to a certain
its free exercise of religious profession and worship and its right of
ritual or ceremony as there are religious groups or sects or followers, all
dissemination of religious beliefs as the power to tax the exercise of a
depending upon the meaning which they, though in all sincerity and
privilege is the power to control or suppress its enjoyment.Thus,
good faith, may want to give to such ritual or ceremony.[321]
in American Bible Society, the clear and present danger rule was laid
down but it was not clearly applied. It was held that the flag was not an image, the flag salute was not a
religious ceremony, and there was nothing objectionable about the
In the much later case of Tolentino v. Secretary of Finance,[317] also
singing of the national anthem as it speaks only of love of country,
involving the sale of religious books, the Court distinguished
patriotism, liberty and the glory of suffering and dying for it. The Court
the American Bible Society case from the facts and issues
upheld the questioned Order and the expulsion of petitioners children,
in Tolentino and did not apply the American Bible Society
stressing that:
ruling. In Tolentino, the Philippine Bible Society challenged the validity
of the registration provisions of the Value Added Tax (VAT) Law as a
Men may differ and do differ on religious beliefs and creeds, government Religious freedom, although not unlimited, is a fundamental personal
policies, the wisdom and legality of laws, even the correctness of judicial right and liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155,
decisions and decrees; but in the field of love of country, reverence for 164, 60 S.Ct. 146) and has a preferred position in the hierarchy of
the flag, national unity and patriotism, they can hardly afford to differ, for values. Contractual rights, therefore, must yield to freedom of religion. It
these are matters in which they are mutually and vitally interested, for to is only where unavoidably necessary to prevent an immediate and grave
them, they mean national existence and survival as a nation or national danger to the security and welfare of the community that infringement of
extinction.[322] religious freedom may be justified, and only to the smallest extent
necessary.[327] (emphasis supplied)
In support of its ruling, the Court cited Justice Frankfurters dissent in
the Barnette case, viz: As regards the Establishment Clause issue, the Court after citing the
constitutional provision on establishment and free exercise of religion,
The constitutional protection of religious freedom x x x gave religious
declared, viz:
equality, not civil immunity. Its essence is freedom from conformity to
religious dogma, not freedom from conformity to law because of religious The constitutional provisions not only prohibits legislation for the support
dogma.[323] of any religious tenets or the modes of worship of any sect, thus
forestalling compulsion by law of the acceptance of any creed or the
It stated in categorical terms, viz:
practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed.
The freedom of religious belief guaranteed by the Constitution does not 1148, 1153), but also assures the free exercise of ones chosen form of
and cannot mean exemption from or non-compliance with reasonable religion within limits of utmost amplitude. It has been said that the
and non-discriminatory laws, rules and regulations promulgated by religion clauses of the Constitution are all designed to protect the
competent authority.[324] broadest possible liberty of conscience, to allow each man to believe as
his conscience directs, to profess his beliefs, and to live as he believes
Thus, the religious freedom doctrines one can derive from Gerona are: he ought to live, consistent with the liberty of others and with the
(1) it is incumbent upon the Court to determine whether a certain ritual common good. (footnote omitted). Any legislation whose effect or
is religious or not; (2) religious freedom will not be upheld if it clashes purpose is to impede the observance of one or all religions, or to
with the established institutions of society and with the law such that discriminate invidiously between the religions, is invalid, even though the
when a law of general applicability (in this case the Department Order) burden may be characterized as being only indirect. (Sherbert v. Verner,
incidentally burdens the exercise of ones religion, ones right to religious 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates
freedom cannot justify exemption from compliance with the conduct by enacting, within its power, a general law which has for its
law. The Gerona ruling was reiterated in Balbuna, et al. v. Secretary of purpose and effect to advance the states secular goals, the statute is
Education, et al.[325] valid despite its indirect burden on religious observance, unless the state
can accomplish its purpose without imposing such burden. (Braunfeld v.
Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde
Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v.
Rope Workers Union.[326] In this unanimously decided en banc case,
Maryland, 366 U.S. 420, 444-5 and 449)[328] (emphasis supplied)
Victoriano was a member of the Iglesia ni Cristo which prohibits the
affiliation of its members with any labor organization. He worked in the Quoting Aglipay v. Ruiz,[329] the Court held that government is not
Elizalde Rope Factory, Inc. and was a member of the Elizalde Rope precluded from pursuing valid objectives secular in character even if the
Workers Union which had with the company a closed shop provision incidental result would be favorable to a religion or sect. It also
pursuant to Republic Act No. 875 allowing closed shop cited Board of Education v. Allen,[330] which held that in order to
arrangements. Subsequently, Republic Act No. 3350 was enacted withstand the strictures of constitutional prohibition, a statute must have
exempting from the application and coverage of a closed shop a secular legislative purpose and a primary effect that neither advances
agreement employees belonging to any religious sect which prohibits nor inhibits religion. Using these criteria in upholding Republic Act No.
affiliation of their members with any labor organization. Victoriano 3350, the Court pointed out, viz:
resigned from the union after Republic Act No. 3350 took effect. The
union notified the company of Victorianos resignation, which in turn (Republic Act No. 3350) was intended to serve the secular purpose of
notified Victoriano that unless he could make a satisfactory arrangement advancing the constitutional right to the free exercise of religion, by
with the union, the company would be constrained to dismiss him from averting that certain persons be refused work, or be dismissed from
the service. Victoriano sought to enjoin the company and the union from work, or be dispossessed of their right to work and of being impeded to
dismissing him. The court having granted the injunction, the union came pursue a modest means of livelihood, by reason of union security
to this Court on questions of law, among which was whether Republic agreements. . . . The primary effects of the exemption from closed shop
Act No. 3350 was unconstitutional for impairing the obligation of agreements in favor of members of religious sects that prohibit their
contracts and for granting an exemption offensive of the Establishment members from affiliating with a labor organization, is the protection of
Clause. With respect to the first issue, the Court ruled, viz: said employees against the aggregate force of the collective bargaining
agreement, and relieving certain citizens of a burden on their religious
beliefs, and . . . eliminating to a certain extent economic insecurity due situation did not obtain in the Victoriano case where it was the
to unemployment.[331] government itself, through Congress, which provided the exemption in
Republic Act No. 3350 to allow Victorianos exercise of religion. Thus,
The Court stressed that (a)lthough the exemption may benefit those who
the government could not argue against the exemption on the basis of
are members of religious sects that prohibit their members from joining
a compelling state interest as it would be arguing against itself; while
labor unions, the benefit upon the religious sects is merely incidental and
Victoriano would not seek exemption from the questioned law to allow
indirect.[332] In enacting Republic Act No. 3350, Congress merely
the free exercose of religion as the law in fact provides such an
relieved the exercise of religion by certain persons of a burden imposed
exemption. In sum, although Victoriano involved a religious belief and
by union security agreements which Congress itself also imposed
conduct, it did not involve a free exercise issue where the Free Exercise
through the Industrial Peace Act. The Court concluded the issue of
Clause is invoked to exempt him from the burden imposed by a law on
exemption by citing Sherbert which laid down the rule that when general
his religious freedom.
laws conflict with scruples of conscience, exemptions ought to be
granted unless some compelling state interest intervenes. The Court Victoriano was reiterated in several cases involving the Iglesia ni Cristo,
then abruptly added that (i)n the instant case, We see no compelling namely Basa, et al. v. Federacion Obrera de la Industria Tabaquera y
state interest to withhold exemption.[333] Otros Trabajadores de Filipinas,[334] Anucension v. National Labor
Union, et al.,[335] and Gonzales, et al. v. Central Azucarera de Tarlac
A close look at Victoriano would show that the Court mentioned several
Labor Union.[336]
tests in determining when religious freedom may be validly
limited. First, the Court mentioned the test of immediate and grave Then came German v. Barangan in 1985 at the height of the anti-
danger to the security and welfare of the community and infringement of administration rallies. Petitioners were walking to St. Jude Church within
religious freedom only to the smallest extent necessary to justify the Malacanang security area to pray for an end to violence when they
limitation of religious freedom. Second, religious exercise may be were barred by the police. Invoking their constitutional freedom of
indirectly burdened by a general law which has for its purpose and effect religious worship and locomotion, they came to the Court on a petition
the advancement of the states secular goals, provided that there is no for mandamus to allow them to enter and pray inside the St. Jude
other means by which the state can accomplish this purpose without Chapel. The Court was divided on the issue. The slim majority of six
imposing such burden. Third, the Court referred to the compelling state recognized their freedom of religion but noted their absence of good faith
interest test which grants exemptions when general laws conflict with and concluded that they were using their religious liberty to express their
religious exercise, unless a compelling state interest intervenes. opposition to the government. Citing Cantwell, the Court distinguished
between freedom to believe and freedom to act on matters of
It is worth noting, however, that the first two tests were mentioned only
religion, viz:
for the purpose of highlighting the importance of the protection of
religious freedom as the secular purpose of Republic Act No. . . . Thus the (First) amendment embraces two concepts - freedom to
3350. Upholding religious freedom was a secular purpose insofar as it believe and freedom to act. The first is absolute, but in the nature of
relieved the burden on religious freedom caused by another law, i.e, the things, the second cannot be.[337]
Industrial Peace Act providing for union shop agreements. The first two
The Court reiterated the Gerona ruling, viz:
tests were only mentioned in Victoriano but were not applied by the
Court to the facts and issues of the case. The third, the compelling state In the case at bar, petitioners are not denied or restrained of their
interest test was employed by the Court to determine whether the freedom of belief or choice of their religion, but only in the manner by
exemption provided by Republic Act No. 3350 was not which they had attempted to translate the same to action. This
unconstitutional. It upheld the exemption, stating that there was no curtailment is in accord with the pronouncement of this Court in Gerona
compelling state interest to strike it down. However, after careful v. Secretary of Education (106 Phil. 2), thus:
consideration of the Sherbert case from which Victoriano borrowed this
test, the inevitable conclusion is that the compelling state interest test . . . But between the freedom of belief and the exercise of said belief,
was not appropriate and could not find application in the Victoriano there is quite a stretch of road to travel. If the exercise of said religious
case. In Sherbert, appellant Sherbert invoked religious freedom in belief clashes with the established institutions of society and with the
seeking exemption from the provisions of the South Carolina law, then the former must yield and give way to the latter. The
Unemployment Compensation Act which disqualified her from claiming government steps in and either restrains said exercise or even
unemployment benefits. It was the appellees, members of the South prosecutes the one exercising it. (italics supplied)
Then Associate Justice Teehankee registered a dissent which in The sole justification for a prior restraint or limitation on the exercise of
subsequent jurisprudence would be cited as a test in religious freedom religious freedom (according to the late Chief Justice Claudio
cases. His dissent stated in relevant part, viz: Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA
514, 517) is the existence of a grave and present danger of a character
A brief restatement of the applicable constitutional principles as set forth
both grave and imminent, of a serious evil to public safety, public morals,
in the landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA
public health or any other legitimate public interest, that the State has a
553[1983]) should guide us in resolving the issues.
right (and duty) to prevent. Absent such a threat to public safety, the
1. The right to freely exercise ones religion is guaranteed in Section 8 of expulsion of the petitioners from the schools is not
our Bill of Rights. (footnote omitted) Freedom of worship, alongside with justified.[342] (emphasis supplied)
freedom of expression and speech and peaceable assembly along with
The Court added, viz:
the other intellectual freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly stressed that on the We are not persuaded that by exempting the Jehovahs Witnesses from
judiciary - even more so than on the other departments - rests the grave saluting the flag, singing the national anthem and reciting the patriotic
and delicate responsibility of assuring respect for and deference to such pledge, this religious group which admittedly comprises a small portion
preferred rights. No verbal formula, no sanctifying phrase can, of course, of the school population will shake up our part of the globe and suddenly
dispense with what has been so felicitously termed by Justice Holmes produce a nation untaught and uninculcated in and unimbued with
as the sovereign prerogative of judgment. Nonetheless, the presumption reverence for the flag, patriotism, love of country and admiration for
must be to incline the weight of the scales of justice on the side of such national heroes (Gerona v. Secretary of Education, 106 Phil. 224). After
rights, enjoying as they do precedence and primacy. (J.B.L. Reyes, 125 all, what the petitioners seek only is exemption from the flag ceremony,
SCRA at pp. 569-570) not exclusion from the public schools where they may study the
Constitution, the democratic way of life and form of government, and
2. In the free exercise of such preferred rights, there is to be no prior
learn not only the arts, sciences, Philippine history and culture but also
restraint although there may be subsequent punishment of any illegal
receive training for a vocation or profession and be taught the virtues of
acts committed during the exercise of such basic rights. The sole
patriotism, respect for human rights, appreciation of national heroes, the
justification for a prior restraint or limitation on the exercise of these basic
rights and duties of citizenship, and moral and spiritual values (Sec. 3[2],
rights is the existence of a grave and present danger of a character both
Art. XIV, 1987 Constitution) as part of the curricula.Expelling or banning
grave and imminent, of a serious evil to public safety, public morals,
the petitioners from Philippine schools will bring about the very situation
public health or any other legitimate public interest, that the State has a
that this Court has feared in Gerona. Forcing a small religious group,
right (and duty) to prevent (Idem, at pp. 560-561).[339] (emphasis
through the iron hand of the law, to participate in a ceremony that
supplied)
violates their religious beliefs, will hardly be conducive to love of country
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice or respect for duly constituted authorities.[343]
Teehankees dissent was taken involved the rights to free speech and
Barnette also found its way to the opinion, viz:
assembly, and not the exercise of religious freedom. At issue in that
case was a permit sought by retired Justice J.B.L. Reyes, on behalf of Furthermore, let it be noted that coerced unity and loyalty even to the
the Anti-Bases Coalition, from the City of Manila to hold a peaceful country, x x x- assuming that such unity and loyalty can be attained
march and rally from the Luneta to the gates of the U.S. through coercion- is not a goal that is constitutionally obtainable at the
Embassy.Nevertheless Bagatsing was used by Justice Teehankee in expense of religious liberty. A desirable end cannot be promoted by
his dissent which had overtones of petitioner German and his prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042,
companions right to assemble and petition the government for redress 1046).[344]
of grievances.[340]
Towards the end of the decision, the Court also cited the Victoriano
In 1993, the issue on the Jehovahs Witnesses participation in the flag case and its use of the compelling state interest test in according
ceremony again came before the Court in Ebralinag v. The Division exemption to the Jehovahs Witnesses, viz:
Superintendent of Schools.[341] A unanimous Court overturned the
In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72-75, we
Gerona ruling after three decades. Similar to Gerona, this case involved
upheld the exemption of members of the Iglesia ni Cristo, from the
several Jehovahs Witnesses who were expelled from school for refusing
coverage of a closed shop agreement between their employer and a
to salute the flag, sing the national anthem and recite the patriotic
union because it would violate the teaching of their church not to join
pledge, in violation of the Administrative Code of 1987. In resolving the
any group:
same religious freedom issue as in Gerona, the Court this time
x x x It is certain that not every conscience can be accommodated by all power to review the Iglesia television show, the Court was emphatic
the laws of the land; but when general laws conflict with scruples of about the preferred status of religious freedom. Quoting Justice Cruz
conscience, exemptions ought to be granted unless some compelling commentary on the constitution, the Court held that freedom to believe
state interest intervenes. (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. is absolute but freedom to act on ones belief, where it affects the public,
2d 965, 970, 83 S.Ct. 1790) is subject to the authority of the state. The commentary quoted Justice
Frankfurters dissent in Barnette which was quoted in Gerona, viz: (t)he
We hold that a similar exemption may be accorded to the Jehovahs
constitutional provision on religious freedom terminated disabilities, it did
Witnesses with regard to the observance of the flag ceremony out of
not create new privileges. It gave religious liberty, not civil immunity. Its
respect for their religious beliefs, however bizarre those beliefs may
essence is freedom from conformity to religious dogma, not freedom
seem to others.[345]
from conformity to law because of religious dogma.[349] Nevertheless,
The Court annulled the orders expelling petitioners from school. the Court was quick to add the criteria by which the state can regulate
the exercise of religious freedom, that is, when the exercise will bring
Thus, the grave and imminent danger test laid down in a dissenting about the clear and present danger of some substantive evil which the
opinion in German which involved prior restraint of religious worship with State is duty bound to prevent, i.e., serious detriment to the more
overtones of the right to free speech and assembly, was transported overriding interest of public health, public morals, or public welfare.[350]
to Ebralinag which did not involve prior restraint of religious worship,
speech or assembly. Although, it might be observed that the Court faintly In annulling the x-rating of the shows, the Court stressed that the
implied that Ebralinag also involved the right to free speech when in its Constitution is hostile to all prior restraints on speech, including religious
preliminary remarks, the Court stated that compelling petitioners to speech and the x-rating was a suppression of petitioners freedom of
participate in the flag ceremony is alien to the conscience of the present speech as much as it was an interference with its right to free exercise
generation of Filipinos who cut their teeth on the Bill of Rights which of religion. Citing Cantwell, the Court recognized that the different
guarantees their rights to free speech and the free exercise of religious religions may criticize one another and their tenets may collide, but the
profession and worship; the Court then stated in a footnote that the flag Establishment Clause prohibits the state from protecting any religion
salute, singing the national anthem and reciting the patriotic pledge are from this kind of attack.
exercise clause. From the religious perspective, religion requires Providence, in order to establish a government that shall embody their
voluntarism because compulsory faith lacks religious ideals, conserve and develop the patrimony of the nation, promote the
efficacy.Compelled religion is a contradiction in terms.[354] As a social general welfare, and secure to themselves and their posterity the
value, it means that the growth of a religious sect as a social force must blessings of independence under a regime of justice, liberty and
come from the voluntary support of its members because of the belief democracy, they thereby manifested their intense religious nature and
that both spiritual and secular society will benefit if religions are allowed placed unfaltering reliance upon Him who guides the destinies of men
to compete on their own intrinsic merit without benefit of official and nations. The elevating influence of religion in human society is
patronage. Such voluntarism cannot be achieved unless the political recognized here as elsewhere. In fact, certain general concessions are
process is insulated from religion and unless religion is insulated from indiscriminately accorded to religious sects and denominations. . .[359]
politics.[355] Non-establishment thus calls for government neutrality in
xxx xxx xxx
religious matters to uphold voluntarism and avoid breeding interfaith
dissension.[356] It is obvious that while the issuance and sale of the stamps in question
may be said to be inseparably linked with an event of a religious
The neutrality principle was applied in the first significant non-
character, the resulting propaganda, if any, received by the Roman
establishment case under the 1935 Constitution. In the 1937 case
Catholic Church, was not the aim and purpose of the Government. We
of Aglipay v. Ruiz,[357] the Philippine Independent Church challenged
are of the opinion that the Government should not be embarrassed in its
the issuance and sale of postage stamps commemorating the Thirty-
activities simply because of incidental results, more or less religious in
Third International Eucharistic Congress of the Catholic Church on the
character, if the purpose had in view is one which could legitimately be
ground that the constitutional prohibition against the use of public money
undertaken by appropriate legislation. The main purpose should not be
for religious purposes has been violated. It appears that the Director of
frustrated by its subordination to mere incidental results not
Posts issued the questioned stamps under the provisions of Act No.
contemplated. (Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct.
4052[358] which appropriated a sum for the cost of plates and printing
Rep., 121; 44 Law. ed., 168)[360] (emphases supplied)
of postage stamps with new designs and authorized the Director of
Posts to dispose of the sum in a manner and frequency advantageous In so deciding the case, the Court, citing U.S. jurisprudence, laid down
to the Government. The printing and issuance of the postage stamps in the doctrine that a law or government action with a legitimate secular
question appears to have been approved by authority of the purpose does not offend the Establishment Clause even if it incidentally
President. Justice Laurel, speaking for the Court, took pains explaining aids a particular religion.
religious freedom and the role of religion in society, and in conclusion,
Almost forty-five years after Aglipay came Garces v.
found no constitutional infirmity in the issuance and sale of the
Estenzo.[361] Although the Court found that the separation of church
stamps, viz:
and state was not at issue as the controversy was over who should have
The prohibition herein expressed is a direct corollary of the principle of custody of a saints image, it nevertheless made pronouncements on the
separation of church and state. Without the necessity of adverting to the separation of church and state along the same line as the Aglipay
ruling. The Court held that there was nothing unconstitutional or illegal is thus an incompatibility between the Administrative Code provision
in holding a fiesta and having a patron saint for the barrio. It adhered to relied upon by petitioner and an express constitutional mandate.[364]
the barrio resolutions of the barangay involved in the case stating that
On the other hand, the prevailing five other members of the Court - Chief
the barrio fiesta is a socio-religious affair, the celebration of which is an
Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino -
ingrained tradition in rural communities that relieves the monotony and
approached the case from a non-establishment perspective and upheld
drudgery of the lives of the masses. Corollarily, the Court found nothing
the law as a safeguard against the constant threat of union of church
illegal about any activity intended to facilitate the worship of the patron
and state that has marked Philippine history. Justice Makasiar
saint such as the acquisition and display of his image bought with funds
stated: To allow an ecclesiastic to head the executive department of a
obtained through solicitation from the barrio residents. The Court
municipality is to permit the erosion of the principle of separation of
pointed out that the image of the patron saint was purchased in
Church and State and thus open the floodgates for the violation of the
connection with the celebration of the barrio fiesta honoring the patron
cherished liberty of religion which the constitutional provision seeks to
saint, San Vicente Ferrer, and not for the purpose of favoring any religion
enforce and protect. Consequently, the Court upheld the validity of
nor interfering with religious matters or the religious beliefs of the barrio
Section 2175 of the Revised Administrative Code and declared
residents. Citing the Aglipay ruling, the Court declared, viz:
respondent priest ineligible for the office of municipal mayor.
Not every governmental activity which involves the expenditure of public
Another type of cases interpreting the establishment clause deals with
funds and which has some religious tint is violative of the constitutional
intramural religious disputes. Fonacier v. Court of Appeals[365]is the
provisions regarding separation of church and state, freedom of worship
leading case. The issue therein was the right of control over certain
and banning the use of public money or property.
properties of the Philippine Independent Church, the resolution of which
Then came the 1978 case of Pamil v. Teleron, et al.[362] which necessitated the determination of who was the legitimate bishop of the
presented a novel issue involving the religion clauses. In this case, church. The Court cited American Jurisprudence,[366] viz:
Section 2175 of the Revised Administrative Code of 1917 disqualifying
Where, however, a decision of an ecclesiastical court plainly violates the
ecclesiastics from appointment or election as municipal officer was
law it professes to administer, or is in conflict with the law of the land, it
challenged. After protracted deliberation, the Court was sharply divided
will not be followed by the civil courts. . . In some instances, not only
on the issue. Seven members of the Court, one short of the number
have the civil courts the right to inquire into the jurisdiction of the
necessary to declare a law unconstitutional, approached the problem
religious tribunals and the regularity of their procedure, but they have
from a free exercise perspective and considered the law a religious test
subjected their decisions to the test of fairness or to the test furnished
offensive of the constitution. They were Justices Fernando, Teehankee,
by the constitution and the law of the church. . .[367]
Muoz-Palma, Concepcion, Jr., Santos, Fernandez, and Guerrero. Then
Associate Justice Fernando, the ponente, stated, viz: The challenged The Court then ruled that petitioner Fonacier was legitimately ousted
Administrative Code provision, certainly insofar as it declares ineligible and respondent de los Reyes was the duly elected head of the Church,
ecclesiastics to any elective or appointive office, is, on its face, based on their internal laws. To finally dispose of the property issue, the
inconsistent with the religious freedom guaranteed by the Court, citing Watson v. Jones,[368] declared that the rule in property
Constitution. Citing Torcaso v. Watkins,[363] the ponencia held, viz: controversies within religious congregations strictly independent of any
other superior ecclesiastical association (such as the Philippine
Torcaso v. Watkins, an American Supreme Court decision, has
Independent Church) is that the rules for resolving such controversies
persuasive weight. What was there involved was the validity of a
should be those of any voluntary association. If the congregation adopts
provision in the Maryland Constitution prescribing that no religious test
the majority rule then the majority should prevail; if it adopts adherence
ought ever to be required as a disqualification for any office or profit or
to duly constituted authorities within the congregation, then that should
trust in this State, other than a declaration of belief in the existence of
be followed. Applying these rules, Fonacier lost the case. While the
God ***. Such a constitutional requirement was assailed as contrary to
Court exercised jurisdiction over the case, it nevertheless refused to
the First Amendment of the United States Constitution by an appointee
touch doctrinal and disciplinary differences raised, viz:
to the office of notary public in Maryland, who was refused a commission
as he would not declare a belief in God. He failed in the Maryland Court The amendments of the constitution, restatement of articles of religion
of Appeals but prevailed in the United States Supreme Court, which and abandonment of faith or abjuration alleged by appellant, having to
reversed the state court decision. It could not have been otherwise. As do with faith, practice, doctrine, form of worship, ecclesiastical law,
emphatically declared by Justice Black: this Maryland religious test for custom and rule of a church and having reference to the power of
public office unconstitutionally invades the appellants freedom of belief excluding from the church those allegedly unworthy of membership, are
and religion and therefore cannot be enforced against him. unquestionably ecclesiastical matters which are outside the province of
the civil courts.[369]
The analogy appears to be obvious. In that case, it was lack of belief in
God that was a disqualification. Here being an ecclesiastic and therefore VIII. Free Exercise Clause vis--vis Establishment Clause
professing a religious faith suffices to disqualify for a public office. There
In both Philippine and U.S. jurisdiction, it is recognized that there is a to relieve the exercise of religion, by certain persons, of a burden that is
tension between the Free Exercise Clause and the Establishment imposed by union security agreements.[373] (emphasis supplied)
Clause in their application. There is a natural antagonism between a
Finally, in some cases, a practice is obviously violative of the
command not to establish religion and a command not to inhibit its
Establishment Clause but the Court nevertheless upholds it.
practice; this tension between the religion clauses often leaves the
In Schempp, Justice Brennan stated: (t)here are certain practices,
courts with a choice between competing values in religion cases.[370]
conceivably violative of the Establishment Clause, the striking down of
One set of facts, for instance, can be differently viewed from the which might seriously interfere with certain religious liberties also
Establishment Clause perspective and the Free Exercise Clause point protected by the First Amendment.
of view, and decided in opposite directions. In Pamil, the majority gave
How the tension between the Establishment Clause and the Free
more weight to the religious liberty of the priest in holding that the
Exercise Clause will be resolved is a question for determination in the
prohibition of ecclesiastics to assume elective or appointive government
actual cases that come to the Court. In cases involving both the
positions was violative of the Free Exercise Clause. On the other hand,
Establishment Clause and the Free Exercise Clause, the two clauses
the prevailing five justices gave importance to the Establishment Clause
should be balanced against each other. The courts must review all the
in stating that the principle of separation of church and state justified the
relevant facts and determine whether there is a sufficiently strong free
prohibition.
exercise right that should prevail over the Establishment Clause
Tension is also apparent when a case is decided to uphold the Free problem. In the United States, it has been proposed that in balancing,
Exercise Clause and consequently exemptions from a law of general the free exercise claim must be given an edge not only because of
applicability are afforded by the Court to the person claiming religious abundant historical evidence in the colonial and early national period of
freedom; the question arises whether the exemption does not amount to the United States that the free exercise principle long antedated any
support of the religion in violation of the Establishment Clause. This was broad-based support of disestablishment, but also because an
the case in the Free Exercise Clause case of Sherbertwhere the U.S. Establishment Clause concern raised by merely accommodating a
Supreme Court ruled, viz: citizens free exercise of religion seems far less dangerous to the republic
than pure establishment cases. Each time the courts side with the
In holding as we do, plainly we are not fostering the establishment of the
Establishment Clause in cases involving tension between the two
Seventh-day Adventist religion in South Carolina, for the extension of
religion clauses, the courts convey a message of hostility to the religion
unemployment benefits to Sabbatarians in common with Sunday
that in that case cannot be freely exercised.[374] American professor of
worshippers reflects nothing more than the governmental obligation of
constitutional law, Laurence Tribe, similarly suggests that the free
neutrality in the face of religious differences, and does not represent that
exercise principle should be dominant in any conflict with the anti-
involvement of religious with secular institutions which it is the object of
establishment principle. This dominance would be the result of
the Establishment Clause to forestall.[371] (emphasis supplied)
commitment to religious tolerance instead of thwarting at all costs even
Tension also exists when a law of general application provides the faintest appearance of establishment.[375] In our jurisdiction, Fr.
exemption in order to uphold free exercise as in the Walz case where Joaquin Bernas, S.J. asserts that a literal interpretation of the religion
the appellant argued that the exemption granted to religious clauses does not suffice. Modern society is characterized by the
organizations, in effect, required him to contribute to religious bodies in expanding regulatory arm of government that reaches a variety of areas
violation of the Establishment Clause. But the Court held that the of human conduct and an expanding concept of religion. To adequately
exemption was not a case of establishing religion but merely upholding meet the demands of this modern society, the societal values the religion
the Free Exercise Clause by sparing the exercise of religion from the clauses are intended to protect must be considered in their interpretation
burden of property taxation levied on private profit institutions. Justice and resolution of the tension. This, in fact, has been the approach
Burger wrote, viz: followed by the Philippine Court.[376]
(t)he Court has struggled to find a neutral course between the two IX. Philippine Religion Clauses: Nature, Purpose, Tests
religion clauses, both of which are cast in absolute terms, and either of
Based on Philippine and American Religion Clause History,
which, if expanded to a logical extreme, would tend to clash with the
other.[372] Law and Jurisprudence
Similarly, the Philippine Supreme Court in the Victoriano case held that The history of the religion clauses in the 1987 Constitution shows that
the exemption afforded by law to religious sects who prohibit their these clauses were largely adopted from the First Amendment of the
members from joining unions did not offend the Establishment U.S. Constitution. The religion clauses in the First Amendment were
Clause. We ruled, viz: contained in every organic Act of the Philippines under the American
regime. When the delegates of the 1934 Constitutional Convention
We believe that in enacting Republic Act No. 3350, Congress acted
adopted a Bill of Rights in the 1935 Constitution, they purposely retained
consistently with the spirit of the constitutional provision. It acted merely
the phraseology of the religion clauses in the First Amendment as
contained in the Jones Law in order to adopt its historical background, Before the advent of the 1935 Constitution, Section 344 of the
nature, extent and limitations. At that time, there were not too many Administrative Code provided for a similar exemption. To the same
religion clause cases in the United States as the U.S. Supreme Court effect, the Tydings-McDuffie Law contained a limitation on the taxing
decided an Establishment Clause issue only in the 1947 Everson power of the Philippine government during the Commonwealth
case. The Free Exercise Clause cases were also scarce then. Over the period.[379] The original draft of the Constitution placed this provision in
years, however, with the expanding reach of government regulation to a an ordinance to be appended to the Constitution because this was
whole gamut of human actions and the growing plurality and activities of among the provisions prescribed by the Tydings-McDuffie
religions, the number of religion clause cases in the U.S. exponentially Law. However, in order to have a constitutional guarantee for such an
increased. With this increase came an expansion of the interpretation of exemption even beyond the Commonwealth period, the provision was
the religion clauses, at times reinforcing prevailing case law, at other introduced in the body of the Constitution on the rationale that if
times modifying it, and still at other times creating contradictions so that churches, convents [rectories or parsonages] and their accessories are
two main streams of jurisprudence had become identifiable. The first always necessary for facilitating the exercise of such [religious] freedom,
stream employs separationwhile the second employs benevolent it would also be natural that their existence be also guaranteed by
neutrality in interpreting the religious clauses. Alongside this change in exempting them from taxation.[380] The amendment was readily
the landscape of U.S. religion clause jurisprudence, the Philippines approved with 83 affirmative votes against 15 negative votes.[381]
continued to adopt the 1935 Constitution religion clauses in the 1973
The Philippine constitutional provision on tax exemption is not found in
Constitution and later, the 1987 Constitution. Philippine jurisprudence
the U.S. Constitution. In the U.S. case of Walz, the Court struggled to
and commentaries on the religious clauses also continued to borrow
justify this kind of exemption to withstand Establishment Clause scrutiny
authorities from U.S. jurisprudence without articulating the stark
by stating that church property was not singled out but was exempt along
distinction between the two streams of U.S. jurisprudence. One might
with property owned by non-profit, quasi-public corporations because
simply conclude that the Philippine Constitutions and jurisprudence also
the state upheld the secular policy that considers these groups as
inherited the disarray of U.S. religion clause jurisprudence and the two
beneficial and stabilizing influences in community life and finds this
identifiable streams; thus, when a religion clause case comes before the
classification useful, desirable, and in the public interest. The Court also
Court, a separationist approach or a benevolent neutralityapproach
stated that the exemption was meant to relieve the burden on free
might be adopted and each will have U.S. authorities to support it. Or,
exercise imposed by property taxation. At the same time, however, the
one might conclude that as the history of the First Amendment as
Court acknowledged that the exemption was an exercise of benevolent
narrated by the Court in Everson supports the separationist approach,
neutrality to accommodate a long-standing tradition of exemption. With
Philippine jurisprudence should also follow this approach in light of the
the inclusion of the church property tax exemption in the body of the
Philippine religion clauses history. As a result, in a case where the party
1935 Constitution and not merely as an ordinance appended to the
claims religious liberty in the face of a general law that inadvertently
Constitution, the benevolent neutrality referred to in the Walz case was
burdens his religious exercise, he faces an almost insurmountable wall
given constitutional imprimatur under the regime of the 1935
in convincing the Court that the wall of separation would not be breached
Constitution. The provision, as stated in the deliberations, was an
if the Court grants him an exemption. These conclusions, however, are
acknowledgment of the necessity of the exempt institutions to the
not and were never warranted by the 1987, 1973 and 1935 Constitutions
exercise of religious liberty, thereby evincing benevolence towards
as shown by other provisions on religion in all three constitutions. It is a
religious exercise.
cardinal rule in constitutional construction that the constitution must be
interpreted as a whole and apparently conflicting provisions should be Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:
reconciled and harmonized in a manner that will give to all of them full
force and effect.[377] From this construction, it will be ascertained that (3) No public money, or property shall ever be appropriated, applied, or
the intent of the framers was to adopt a benevolent neutrality approach used, directly or indirectly, for the use, benefit, or support of any sect,
in interpreting the religious clauses in the Philippine constitutions, and church, denomination, sectarian institution or system of religion, for the
the enforcement of this intent is the goal of construing the use, benefit or support of any priest, preacher, ministers or other
property in Article VI, Section 22, par. 3(b), viz: section 3 of the Jones Law which did not contain the above
exception, viz:
(3) Cemeteries, churches, and parsonages or convents, appurtenant
thereto, and all lands, buildings, and improvements used exclusively No public money or property shall ever be appropriated, applied, or
for religious, charitable, or educational purposes shall be exempt from used, directly or indirectly, for the use, benefit, or support of any sect,
. . . Optional religious instruction shall be maintained in the public but benevolence, to religion.[390]
schools as now authorized by law. . .
The 1973 Constitution contained in Article VI, Section 22(3) a provision
The law then applicable was Section 928 of the Administrative Code, viz: similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution on
exemption of church property from taxation, with the modification that
It shall be lawful, however, for the priest or minister of any church the property should not only be used directly, but also actually and
established in the town where a public school is situated, either in person exclusively for religious or charitable purposes. Parallel to Article VI,
or by a designated teacher of religion, to teach religion for one-half hour Section 23(3) of the 1935 Constitution, the 1973 Constitution also
three times a week, in the school building, to those public-school pupils contained a similar provision on salaries of religious officials employed
whose parents or guardians desire it and express their desire therefor in in the enumerated government institutions. Article XIII, Section 5 of the
writing filed with the principal of the school . . . 1935 Constitution on optional religious instruction was also carried to the
1973 Constitution in Article XV, Section 8(8) with the modification that
optional religious instruction shall be conducted as may be provided by The provision on optional religious instruction was also adopted in the
law and not as now authorized by law as stated in the 1935 1987 Constitution in Article XIV, Section 3(3) with the modification that
Constitution. The 1973 counterpart, however, made explicit in the it was expressly provided that optional instruction shall be conducted
constitution that the religious instruction in public elementary and high within the regular class hours and without additional cost to the
schools shall be done (a)t the option expressed in writing by the parents government. There were protracted debates on what additional cost
or guardians, and without cost to them and the government. With the meant, i.e., cost over and above what is needed for normal operations
adoption of these provisions in the 1973 Constitution, the benevolent such as wear and tear, electricity, janitorial services,[395] and when
neutrality approach continued to enjoy constitutional sanction. In Article during the day instruction would be conducted.[396] In deliberating on
XV, Section 15 of the General Provisions of the 1973 Constitution this the phrase within the regular class hours, Commissioner Aquino
provision made its maiden appearance: (t)he separation of church and expressed her reservations to this proposal as this would violate the
state shall be inviolable. The 1973 Constitution retained the portion of time-honored principle of separation of church and state. She cited
the preamble imploring the aid of Divine Providence. the McCullom case where religious instruction during regular school
hours was stricken down as unconstitutional and also cited what she
In the Report of the Ad Hoc Sub-Committee on Goals, Principles and
considered the most liberal interpretation of separation of church and
Problems of the Committee on Church and State of the 1971
state in Surach v. Clauson where the U.S. Supreme Court allowed only
Constitutional Convention, the question arose as to whether the
release time for religious instruction. Fr. Bernas replied, viz:
absolute separation of Church and State as enunciated in the Everson
case and reiterated in Schempp - i.e., neutrality not only as between one . . . the whole purpose of the provision was to provide for an exception
religion and another but even as between religion and non-religion - is to the rule on non-establishment of religion, because if it were not
embodied in the Philippine Constitution. The sub-committees answer necessary to make this exception for purposes of allowing religious
was that it did not seem so. Citing the Aglipay case where Justice Laurel instruction, then we could just drop the amendment. But, as a matter of
recognized the elevating influence of religion in human society and the fact, this is necessary because we are trying to introduce something
Filipinos imploring of Divine Providence in the 1935 Constitution, the here which is contrary to American practices.[397] (emphasis supplied)
sub-committee asserted that the state may not prefer or aid one religion
(W)ithin regular class hours was approved.
over another, but may aid all religions equally or the cause of religion in
general.[391] Among the position papers submitted to the Committee on The provision on the separation of church and state was retained but
Church on State was a background paper for reconsideration of the placed under the Principles in the Declaration of Principles and State
religion provisions of the constitution by Fr. Bernas, S.J. He stated Policies in Article II, Section 6. In opting to retain the wording of the
therein that the Philippine Constitution is not hostile to religion and in provision, Fr. Bernas stated, viz:
fact recognizes the value of religion and accommodates religious
values.[392] Stated otherwise, the Establishment Clause contemplates . . . It is true, I maintain, that as a legal statement the sentence The
not a strict neutrality but benevolent neutrality. While the Committee separation of Church and State is inviolable, is almost a useless
introduced the provision on separation of church and state in the statement; but at the same time it is a harmless statement. Hence, I am
General Provisions of the 1973 Constitution, this was nothing new as willing to tolerate it there, because, in the end, if we look at the
according to it, this principle was implied in the 1935 Constitution even jurisprudence on Church and State, arguments are based not on the
in the absence of a similar provision.[393] statement of separation of church and state but on the non-
establishment clause in the Bill of Rights.[398]
Then came the 1987 Constitution. The 1973 Constitutional provision on
tax exemption of church property was retained with minor modification The preamble changed Divine Providence in the 1935 and 1973
in Article VI, Section 28(3) of the 1987 Constitution. The same is true Constitutions to Almighty God. There was considerable debate on
with respect to the prohibition on the use of public money and property whether to use Almighty God which Commissioner Bacani said was
for religious purposes and the salaries of religious officers serving in the more reflective of Filipino religiosity, but Commissioner Rodrigo recalled
enumerated government institutions, now contained in Article VI, that a number of atheistic delegates in the 1971 Constitutional
Section 29(2). Commissioner Bacani, however, probed into the Convention objected to reference to a personal God.[399] God of
possibility of allowing the government to spend public money for History, Lord of History and God were also proposed, but the phrase
purposes which might have religious connections but which would Almighty God prevailed. Similar to the 1935 and 1971 Constitutions, it is
benefit the public generally. Citing the Aglipay case, Commissioner obvious that the 1987 Constitution is not hostile nor indifferent to
Rodrigo explained that if a public expenditure would benefit the religion;[400] its wall of separation is not a wall of hostility or
religious speech as this test is often used in cases on freedom of engaged in illicit relations are guilty of disgraceful and immoral conduct
expression. On the other hand, the Gerona and German cases set the for which he/she may be held administratively liable.[410] In these
rule that religious freedom will not prevail over established institutions of cases, there was not one dissent to the majoritys ruling that their conduct
society and law. Gerona, however, which was the authority cited was immoral. The respondents themselves did not foist the defense that
by German has been overruled by Ebralinag which employed the grave their conduct was not immoral, but instead sought to prove that they did
and immediate danger test. Victoriano was the only case that employed not commit the alleged act or have abated from committing the act. The
the compelling state interest test, but as explained previously, the use facts of the 1975 case of De Dios v. Alejo[411] and the 1999 case
of the test was inappropriate to the facts of the case. of Maguad v. De Guzman,[412] are similar to the case at bar - i.e., the
complainant is a mere stranger and the legal wife has not registered any
The case at bar does not involve speech as in American Bible Society, objection to the illicit relation, there is no proof of scandal or offense to
Ebralinag and Iglesia ni Cristo where the clear and present danger and the moral sensibilities of the community in which the respondent and the
grave and immediate danger tests were appropriate as speech has partner live and work, and the government employee is capacitated to
easily discernible or immediate effects. The Gerona and German marry while the partner is not capacitated but has long been separated
doctrine, aside from having been overruled, is not congruent with in fact. Still, the Court found the government employees administratively
the benevolent neutrality approach, thus not appropriate in this liable for disgraceful and immoral conduct and only considered the
jurisdiction. Similar to Victoriano, the present case involves purely foregoing circumstances to mitigate the penalty. Respondent Escritor
conduct arising from religious belief. The compelling state interest test does not claim that there is error in the settled jurisprudence that an illicit
is proper where conduct is involved for the whole gamut of human relation constitutes disgraceful and immoral conduct for which a
conduct has different effects on the states interests: some effects may government employee is held liable. Nor is there an allegation that the
be immediate and short-term while others delayed and far-reaching. A norms of morality with respect to illicit relations have shifted towards
test that would protect the interests of the state in preventing a leniency from the time these precedent cases were decided. The Court
substantive evil, whether immediate or delayed, is therefore finds that there is no such error or shift, thus we find no reason to deviate
necessary. However, not any interest of the state would suffice to prevail from these rulings that such illicit relationship constitutes disgraceful and
over the right to religious freedom as this is a fundamental right that immoral conduct punishable under the Civil Service Law. Respondent
enjoys a preferred position in the hierarchy of rights - the most having admitted the alleged immoral conduct, she, like the respondents
inalienable and sacred of all human rights, in the words of in the above-cited cases, could be held administratively liable. However,
Jefferson.[406] This right is sacred for an invocation of the Free Exercise there is a distinguishing factor that sets the case at bar apart from the
Clause is an appeal to a higher sovereignty. The entire constitutional cited precedents, i.e., as a defense, respondent invokes religious
order of limited government is premised upon an acknowledgment of freedom since her religion, the Jehovahs Witnesses, has, after thorough
such higher sovereignty,[407] thus the Filipinos implore the aid of investigation, allowed her conjugal arrangement with Quilapio based on
Almighty God in order to build a just and humane society and establish the churchs religious beliefs and practices. This distinguishing factor
a government. As held in Sherbert, only the gravest abuses, compels the Court to apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar, agreement on political and moral ideas, society will fall into anarchy; the
both the dissenting opinion of Mme. Justice Ynares-Santiago and the agreement is necessary to the existence and progress of society.
separate opinion of Mr. Justice Vitug dwell more on the standards of
In a democracy, this common agreement on political and moral ideas is
morality than on the religion clauses in deciding the instant case. A
distilled in the public square. Where citizens are free, every opinion,
discussion on morality is in order.
every prejudice, every aspiration, and every moral discernment has
At base, morality refers to, in Socrates words, how we ought to live and access to the public square where people deliberate the order of their
why. Any definition of morality beyond Socrates simple formulation is life together. Citizens are the bearers of opinion, including opinion
bound to offend one or another of the many rival theories regarding what shaped by, or espousing religious belief, and these citizens have equal
it means to live morally.[413] The answer to the question of how we access to the public square. In this representative democracy, the state
ought to live necessarily considers that man does not live in isolation, is prohibited from determining which convictions and moral judgments
but in society. Devlin posits that a society is held together by a may be proposed for public deliberation. Through a constitutionally
community of ideas, made up not only of political ideas but also of ideas designed process, the people deliberate and decide. Majority rule is a
about the manner its members should behave and govern their necessary principle in this democratic governance.[417] Thus, when
lives. The latter are their morals; they constitute the public public deliberation on moral judgments is finally crystallized into law, the
morality. Each member of society has ideas about what is good and laws will largely reflect the beliefs and preferences of the majority, i.e.,
what is evil. If people try to create a society wherein there is no the mainstream or median groups.[418] Nevertheless, in the very act of
fundamental agreement about good and evil, they will fail; if having adopting and accepting a constitution and the limits it specifies --
established the society on common agreement, the agreement including protection of religious freedom not only for a minority, however
collapses, the society will disintegrate. Society is kept together by the small- not only for a majority, however large- but for each of us -- the
invisible bonds of common thought so that if the bonds are too loose, majority imposes upon itself a self-denying ordinance. It promises not to
the members would drift apart. A common morality is part of the do what it otherwise could do: to ride roughshod over the dissenting
bondage and the bondage is part of the price of society; and mankind, minorities.[419] In the realm of religious exercise, benevolent
which needs society, must pay its price.[414] This design is parallel with neutrality that gives room for accommodation carries out this promise,
the social contract in the realm of politics: people give up a portion of provided the compelling interests of the state are not eroded for the
their liberties to the state to allow the state to protect their liberties. In a preservation of the state is necessary to the preservation of religious
constitutional order, people make a fundamental agreement about the liberty. That is why benevolent neutrality is necessary in a pluralistic
powers of government and their liberties and embody this agreement in society such as the United States and the Philippines to accommodate
a constitution, hence referred to as the fundamental law of the land. A those minority religions which are politically powerless. It is not
complete break of this fundamental agreement such as by revolution surprising that Smith is much criticized for it blocks the judicial recourse
destroys the old order and creates a new one.[415] Similarly, in the of the minority for religious accommodations.
realm of morality, the breakdown of the fundamental agreement about
The laws enacted become expressions of public morality. As Justice
the manner a societys members should behave and govern their lives
Holmes put it, (t)he law is the witness and deposit of our moral
would disintegrate society. Thus, society is justified in taking steps to
life.[420] In a liberal democracy, the law reflects social morality over a
preserve its moral code by law as it does to preserve its government and
period of time.[421] Occasionally though, a disproportionate political
other essential institutions.[416] From these propositions of Devlin, one
influence might cause a law to be enacted at odds with public morality
cannot conclude that Devlin negates diversity in society for he is merely
or legislature might fail to repeal laws embodying outdated traditional
saying that in the midst of this diversity, there should nevertheless be a
moral views.[422] Law has also been defined as something men create
fundamental agreement about good and evil that will govern how people
in their best moments to protect themselves in their worst
in a society ought to live. His propositions, in fact, presuppose diversity
moments.[423] Even then, laws are subject to amendment or repeal just
hence the need to come to an agreement; his position also allows for
as judicial pronouncements are subject to modification and reversal to
change of morality from time to time which may be brought about by this
better reflect the public morals of a society at a given time. After all, the
diversity. In the same vein, a pluralistic society lays down fundamental
life of the law...has been experience, in the words of Justice
rights and principles in their constitution in establishing and maintaining
Holmes. This is not to say though that law is all of morality. Law deals
their society, and these fundamental values and principles are translated
with the minimum standards of human conduct while morality is
into legislation that governs the order of society, laws that may be
concerned with the maximum. A person who regulates his conduct with
amended from time to time. Harts argument propounded in Mr. Justice
the sole object of avoiding punishment under the law does not meet the
Vitugs separate opinion that, Devlins view of people living in a single
higher moral standards set by society for him to be called a morally
society as having common moral foundation (is) overly simplistic
upright person.[424] Law also serves as a helpful starting point for
because societies have always been diverse fails to recognize the
thinking about a proper or ideal public morality for a society[425] in
necessity of Devlins proposition in a democracy. Without fundamental
pursuit of moral progress.
In Magno v. Court of Appeals, et al.,[426] we articulated the relationship provide for the recognition of the wrong and the concomitant punishment
between law and public morality. We held that under the utilitarian in the form of damages. Articles 19 and 21 provide, viz:
theory, the protective theory in criminal law, criminal law is founded upon
Art. 19. Any person must, in the exercise of his rights and in the
the moral disapprobation x x x of actions which are immoral, i.e., which
performance of his duties, act with justice, give everyone his due and
are detrimental (or dangerous) to those conditions upon which depend
observe honesty and good faith.
the existence and progress of human society. This disapprobation is
inevitable to the extent that morality is generally founded and built upon xxx xxx xxx
a certain concurrence in the moral opinions of all. x x x That which we
call punishment is only an external means of emphasizing moral Art. 21. Any person who willfully causes loss or injury to another in a
disapprobation: the method of punishment is in reality the amount of manner that is contrary to morals, good customs or public policy shall
punishment.[427] Stated otherwise, there are certain standards of compensate the latter for the damage. (emphasis supplied)
the judge to the lowest of its personnel. Court personnel have been
Ynares-Santiago, and Carpio, JJ., see dissenting opinion.
enjoined to adhere to the exacting standards of morality and decency in
their professional and private conduct in order to preserve the good Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the dissenting
name and integrity of the courts of justice. opinion of J. Carpio.
It is apparent from the OCAs reliance upon this ruling that the state Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.
interest it upholds is the preservation of the integrity of the judiciary by
came to have more prominence in determining the validity of a marriage
while the role of the congregation waned. Christians cannot turn their
back on this reality in desiring to make their marriage honorable among
all, i.e., in the sight of God and men. However, the view of civil
[1] Kelley, D. Strict Neutrality and the Free Exercise of Religion in authorities regarding the validity of marriage is relative and sometimes
Weber, P., Equal Separation (1990), p. 17. even contradictory to the standards set by the Bible. For example, in
some lands, polygamy is approved while the Bible says that a man
[2] Walz v. Tax Commission of the City of New York, 397 U.S. 664 should only have one wife. Likewise, some countries allow divorce for
(1970), p. 668. the slightest reasons while others do not allow divorce. The Bible, on the
other hand, states that there is only one ground for divorce, namely,
[3] Smith, S., The Rise and Fall of Religious Freedom in Constitutional
fornication, and those divorcing for this reason become free to marry.
Discourse, University of Pennsylvania Law Review, vol. 140(1),
November 1991, pp. 149-150. To obtain a balanced view of civil authority (or Caesars authority in
Biblical terms) regarding marriage, it is well to understand the interest of
[4] Concurring Opinion of Justice Stewart, Sherbert v. Verner, 374 U.S.
civil governments in marriage. The government is concerned with the
398, p. 416 (1963).
practical aspects of marriage such as property rights and weakening
[5] Rollo, pp. 5-6. genetic effects on children born to blood relatives, and not with the
religious or moral aspects of marriage. Caesars authority is to provide
[6] Id. at 8.
legal recognition and accompanying protection of marital rights in court
[7] Id. at 19-26; TSN, October 12, 2000, pp. 3-10. systems, thus a Christian desiring this recognition and rights must
adhere to Caesars requirements. However, God is not bound by
[8] Id. at 101.
Caesars decisions and the Christian should rightly give conscientious
[9] Id. at 100; Exhibit 3, Certificate of Death. consideration to Caesars marriage and divorce provisions but will
always give greatest consideration to the Supreme Authority, Jehovah
[10] Id. at 10; Exhibit 1. God (Acts 4:19; Rom. 13:105). . . Thus the Christian appreciates that,
even though Caesars rulings of themselves are not what finally
[11] Id. at 11; Exhibit 2.
determine the validity of his marriage in Gods eyes, this does not thereby
[12] Id. at 27-33. exempt him from the Scriptural injunction: Let marriage be honorable
among all. (Heb. 13:4) He is obligated to do conscientiously whatever is
[13] Id. at 37.
within the power to see that his marriage is accorded such honor by
[14] Id. at 191-194; TSN, Soledad Escritor, March 8, 2002, pp. 7-10. all. Those who wish to be baptized members of the Christian
congregation but do not have legal recognition of their marital union
[15] Id. at 156-160, TSN, May 29, 2002, pp. 5-9.
should do all that is possible to obtain such recognition, thereby
[16] Citing biblical passages, this article addresses the question, Does removing any doubt as to the honorableness of their union in the eyes
the validity of a marriage depend entirely upon its recognition by civil of people.
authorities and does their validation determine how Jehovah God, the
In some cases, however, it is not possible to secure this recognition. For
author of marriage, views the union? It traces the origins of marriage to
instance, in countries where divorce is not allowed even on the Scriptural
the time of the Hebrews when marriage was a family or tribal affair. With
ground of fornication, either because of the dominance of one religion or
the forming of Israel as a nation, God gave a law containing provisions
other reasons, a man might have left his unfaithful wife and lives with
on marriage, but there was no requirement for a license to be obtained
another woman with whom he has a family. He may later learn the truth
from the priesthood nor that a priest or a representative from
of Gods Word and desire to be baptized as a disciple of Gods Son, but
government be present in the marriage to validate it. Instead, as long as
he cannot obtain divorce and remarry as the national laws do not allow
Gods law was adhered to, the marriage was valid and honorable within
these. He might go to a land which permits divorce and remarry under
the community where the couple lived. In later Bible times, marriages
the laws of that land and add honor to his union, but upon returning to
came to be registered, but only after the marriage had been officiated,
his homeland, the law therein might not recognize the union. If this
thereby making the government only a record-keeper of the fact of
option is not available to that man, he should obtain a legal separation
marriage and not a judge of its morality.
from his estranged mate or resort to other legal remedies, then make a
In the early centuries of the Christian congregation, marriage was written statement to the local congregation pledging faithfulness to his
likewise chiefly a family affair and there was no requirement of license present mate and declaring his agreement to obtain a legal marriage
from the religious or civil authority to make it valid and honorable. It was certificate if the estranged legal wife should die or if other circumstances
conformity to Gods law that was necessary for the marriage to be viewed should make possible the obtaining of such registration. If his present
as honorable within the congregation.Later, however, the civil authorities mate likewise seeks baptism, she would also make such a signed
statement. (p. 182) In some cases, a person might have initiated the [17] Rollo, pp. 163-183; TSN, Minister Gregorio Salazar, May 29, 2002,
process of divorce where the law allows it, but it may take a long period pp. 12-32.
to finally obtain it. If upon learning Bible truth, the person wants to be
[18] Rollo, pp. 111, 217-222; TSN, Minister Salvador Reyes, pp. 3-8;
baptized, his baptism should not be delayed by the pending divorce
Exhibit 6.
proceedings that would make his present union honorable for Bible
examples indicate that unnecessary delay in taking the step of baptism [19] Rollo, pp. 235-238; Memorandum for Complainant, pp. 1-4.
is not advisable (Acts 2:37-41; 8:34-38; 16:30-34; 22:16). Such person
should then provide the congregation with a statement pledging [20] Rollo, pp. 239-240; Respondents Memorandum, pp. 1-2; Rollo, pp.
faithfulness, thereby establishing his determination to maintain his 109-110, Maintaining Marriage Before God and Men, pp. 184-185.
I, __________, do here declare that I have accepted __________ as my Wieman, Henry Nelson, and Horton, Walter M., The Growth of Religion
mate in marital relationship; that I have done all within my ability to obtain (1938), p. 22.
[45] Pfeffer, L., supra, p. 16, citing Encyclopedia Britannica, Charles the [71] Grossman, J.B. and Wells, R.S., Constitutional Law & Judicial
Great, 14th ed., V, p. 258. Policy Making, Second Edition (1980), p. 1276.
[46] Pfeffer, L., supra, p. 22. [72] Pfeffer, L., supra, pp. 96.
[47] Pfeffer, L., supra, p. 23. [73] Pfeffer, L., supra, p. 93, citing Mecklin, J. M., The Story of American
Dissent (1934), p. 202.
[48] Greene, E., Religion and the State (1941), p. 8.
[74] Pfeffer, L., supra, p. 93.
[49] Pfeffer, L., supra, p. 23, citing Wace, Henry, and Bucheim, C.A.,
Luthers Primary Works (1885), pp. 194-185. [75] Greene, E., supra, pp. 65-66 and Pfeffer, L., supra, p. 103, citing
Cobb, S.H., The Rise of Religious Liberty in America (1902), p. 485.
[50] Pfeffer, L., supra, p. 23, citing Acton, History of Freedom in
Chrisitianity, in Essays on Freedom and Power (1949), p. 103. [76] Pfeffer, L., supra, p. 85.
[51] Pfeffer, L., supra, pp. 24-25. [77] Blau, J., Cornerstones of Religious Freedom in America (1950),
p. 36.
[52] Pfeffer, L., supra, p. 26, citing Stokes, I, p. 100.
[78] Pfeffer, L., supra, p. 87.
[53] Greene, E., supra, p. 9.
[79] Pfeffer, L., supra, p. 86.
[54] Pfeffer, L., supra, p. 26, citing Stokes, I, p. 113.
[80] Pfeffer, L., supra, pp. 88-89.
[55] Pfeffer, L., supra, p. 26.
[81] Pfeffer, L., supra, p. 101.
[56] Pfeffer, L., supra, p. 27, citing Garbett, C. (Archbishop of York),
Church and State in England (1950), p. 93. [82] Pfeffer, L., supra, p. 99.
[57] Pfeffer, L., supra, p. 27, citing Noss, J.B., Mans Religions (1949), [83] Pfeffer, L., supra, p. 97. See also Locke, J., Second Treatise of
pp. 674-675 and Garbett, C., pp. 61-62. Government (edited by C.B: Macpherson), pp. 8-10.
[58] Greene, E., supra, p. 10, citing Tanner, Tudor Constitutional [84] Pfeffer, L., supra, p. 102, citing Humphrey, E.F., Nationalism and
Documents, 130-135. Religion in America, 1774-1789 (1924), pp. 368-369.
[59] Pfeffer, L., supra, p. 28, citing Encyclopedia of Social Sciences, XIII, [85] Pfeffer, L., supra, p. 103.
p. 243.
[86] Drakeman, D., Church-State Constitutional Issues (1991), p. 55.
[60] Pfeffer, L., supra, p. 28, citing Stokes, I, p. 132.
[87] Pfeffer, L., supra, p. 104, citing Beard, C. and Mary R., The Rise of
[61] Everson v.Board of Education of the Township of Ewing, et al., 330 American Civilization, I (1947), p. 449.
U.S. 1 (1947), pp. 8-9.
[88] Drakeman, D., supra, p. 55.
[62] Pfeffer, L., supra, p. 30, citing Religious News Service, October 31,
1950.
[89] Pfeffer, L., supra, p. 104, citing Laski, H.J., The Ameican [111] Berman, H., supra, pp. 151-152.
Democracy (1948), p. 267.
[112] McCoy, T., A Coherent Methodology for First Amendment Speech
[90] Pfeffer, L., supra, p. 105, citing Henry, M., The Part Taken by and Religion Clause Cases, Vanderbilt Law Review, vol. 48(5), October
Virginia in Establishing Religious Liberty as a Foundation of the 1995, p. 1335, 1340.
American Government, Papers of the American Historical Association,
[113] Weber, P., Neutrality and first Amendment Interpretation in Equal
II, p. 26.
Separation (1990), pp. 5-7. See also Kauper, P., Religion and the
[91] Beth, L., American Theory of Church and State (1958), pp. 61-62. Constitution (1964), p. 99.
[92] Pfeffer, L., supra, p. 107, citing Butts, R. Freeman, The American [114] Monsma, S., supra, p. 73.
Tradition in Religion and Education (1950), pp. 46-47.
[115] See Carter, S., The Resurrection of Religious Freedom, Harvard
[93] Pfeffer, L., supra, p. 108, citing Humphrey, E. F., Nationalism and Law Review (1993), vol. 107(1), p. 118, 128-129.
Religion in America, 1774-1789 (1924), p. 379.
[116] Emanuel, S., Constitutional Law (1992), p. 633.
[94] Pfeffer, L., supra, p. 109, citing Butts, supra, pp. 53-56.
[117] Carter, S., supra, p. 118, 140.
[95] Drakeman, D., supra, p. 3; Pfeffer, L., supra, p. 109, citing
[118] Sullivan, K., Religion and Liberal Democracy, The University of
Eckenrode, N.J., The Separation of Church and State in Virginia (1910),
Chicago Law Review (1992), vol. 59(1), p. 195, 214-215.
p. 86.
[119] Kauper, P., Religion and the Constitution (1964), pp, 24-25.
[96] Beth, L., supra, p. 63.
[120] 133 U.S. 333 (1890).
[97] Id. at 81-82.
[103] Smith, S., The Rise and Fall of Religious Freedom in Constitutional [127] Stephens, Jr., supra, p. 645.
Discourse, University of Pennsylvania Law Review, vol. 140(1),
November 1991, p. 149, 160. [128] Id. at 524.
[104] Beth, L., supra, pp. 63-65. [129] Emanuel, S., supra, p. 645, citing Frazee v. Illinois Department of
Employment Security, 489 U.S. 829 (1989).
[105] Id. at 69.
[130] McCoy, T., A Coherent Methodology for First Amendment Speech
[106] Drakeman, D., supra, p. 59. and Religion Clause Cases, Vanderbilt Law Review, vol. 48(5), October
1995, p. 1335, 1336-1337.
[107] Reynolds v. United States, 98 U.S. 145 (1878), pp. 163-164;
Pfeffer, L., supra, p. 92, 125, citing Kohler, M.J., The Fathers of the [131] Kelley, D. Strict Neutrality and the Free Exercise of Religion in
Republic and Constitutional Establishment of Religious Liberty (1930), Weber, P., Equal Separation (1990), p. 20.
pp. 692-693.
[132] Kauper, P., supra, p, 13.
[108] Beth, L., supra, p. 71.
[133] Neuhaus, R., A New Order of Religious Freedom, The George
[109] Berman, H., Religious Freedom and the Challenge of the Modern Washington Law Review (1992), vol. 60 (2), p. 620, 626-627.
State, Emory Law Journal, vol. 39, Winter 1990-Fall 1990, pp. 151-152.
[134] McConnell, M., Religious Freedom at a Crossroads, The
[110] Monsma, S., The Neutrality Principle and a Pluralist Concept of University of Chicago Law Review (1992), vol. 59(1), p. 115, 168.
Accommodation in Weber, P., Equal Separation (1990), p. 74.
[135] McCoy, T., supra, p. 1335, 1336-1337.
[136] Neuhaus, R., A New Order of Religious Freedom, The George [164] 319 U.S. 624 (1943).
Washington Law Review (1992), vol. 60 (2), p. 620, 626-627.
[165] Id. at 634.
[137] Monsma, S., supra, p. 88, citing Neuhaus, R., Contending for the
[166] Id. at 639.
Future: Overcoming the Pfefferian Inversion, in The First Amendment
Religion Liberty Clauses and American Public Life, p. 183. [167] McCoy, T., supra, p. 1335, 1345-46.
[138] Carter, S., supra, p. 118, 134-135. [168] See Bloostein, M., The Core-Periphery Dichotomy in First
Amendment Free Exercise Clause Doctrine: Goldman v. Weinberger,
[139] Lupu, I., The Religion Clauses and Justice Brennan in Full,
Bowen v. Roy, and OLone v. Estate of Shabbaz,z Cornell Law Review,
California Law Review (1999), vol. 87(5), p. 1105, 1114.
vol. 72 (4), p. 827, 828.
[140] Everson v. Board of Education, 330 US 1 (1946), p. 15.
[169] 366 U.S. 599 (1961).
[141] Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
[170] Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.
[142] See McCoy, T., supra, p. 1335, 1336.
[171] 374 U.S. 398 (1963).
[143] 98 U.S. 145 (1878); Buzzard, L., Ericsson, S., The Battle for
[172] Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.
Religious Liberty (1980), p. 49; Drakeman, Church-State Constitutional
Issues (1991), p. 2. [173] Sherbert v. Verner, 374 U.S. 398 (1963), p. 403.
[144] Reynolds v. United States, 98 U.S. 164 (1878), p. 163. [174] Id. at 406.
[146] 98 U.S. 145, 166. [176] McCoy, T., supra, p. 1335, 1346-1347.
[147] McCoy, T., supra, p. 1335, 1344-45. [177] 450 U.S. 707 (1981).
[148] Nowak, J., Rotunda, R., and Young, J., Constitutional Law, 3rd ed. [178] 480 U.S. 136 (1987).
(1986), p. 1069.
[179] 455 U.S. 252 (1982).
[149] 136 U.S. 1 (1890).
[180] United States v. Lee, 455 U.S. 252 (1982), p. 260.
[150] Nowak, J., Rotunda, R., and Young, J., supra, pp. 1069-1072.
[181] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 526.
[151] Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p.
79. [182] 406 U.S. 205 (1972).
[153] 322 U.S. 78, 86 (1944). [184] 494 U.S. 872 (1990).
[154] 310 U.S. 296 (1940). [185] McConnell, M., supra, p. 685, 726.
[156] Id at 303-304. [187] Ducat, C., Constitutional Interpretation, vol. II (2000), pp. 1180 and
1191. See also Sullivan, K., Religion and Liberal Democracy, The
[157] 319 U.S. 157 (1943). University of Chicago Law Review (1992), vol. 59(1), p. 195, 216.
[158] 340 U.S. 268 (1951). [188] McConnell, M., Religious Freedom at a Crossroads, The
University of Chicago Law Review (1992), vol. 59(1), p. 115, 139.
[159] 452 U.S. 640 (1981).
[189] Sullivan, K., Religion and Liberal Democracy, The University of
[160] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 524.
Chicago Law Review (1992), vol. 59(1), p. 195, 216.
[161] 133 U.S. 333, 345.
[190] Carter, S., supra, p. 118.
[162] McCoy, T., supra, p. 1335, 1344-45.
[212] 472 U.S. 38 (1985). University of Chicago Law Review (1992), vol. 59(1), p. 115, 120.
[213] 333 U.S. 203 (1948). [242] Everson v. Board of Education, 330 U.S. 1 (1947), p. 18.
[214] 343 U.S. 306 (1952). [243] The Constitution and Religion, p. 1541, citing Kurland, Of Church
and State and the Supreme Court, 29 U.Chi.L.Rev. 1, 5 (1961).
[215] Zorach v. McCollum, 343 U.S. 306 (1952), p. 315.
[244] Weber, P., Equal Separation (1990), p. 8, citing Kurland, P.,
[216] 366 U.S. 420 (1961). Religion and the Law (1962), p. 18.
[217] Id. at 451-452. [245] Smith, S., The Rise and Fall of Religious Freedom in Constitutional
Discourse, University of Pennsylvania Law Review, vol. 140(1),
[218] 463 U.S. 783 (1983).
November 1991, p. 149, 186.
[219] Marsh v. Chambers, 463 US 783 (1983).
[246] Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
[220] Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 540-541.
[247] Buzzard, L., Ericsson, S., supra, p. 60.
[221] 465 U.S. 668 (1984).
[248] Kelley, D., supra, p. 1189.
[249] Monsma, S., supra, p. 74. [276] Id. at 174.
[250] Id. at 75. [277] Neuhaus, R., A New Order of Religious Freedom, The George
Washington Law Review (1992), vol. 60 (2), p. 620, 631.
[251] Smith, S., supra, p. 149, 159.
[278] Buzzard, L., Ericsson, S., supra, pp. 61-62.
[252] Drakeman, supra, p. 54.
[279] Emanuel, S., supra, pp. 633-634, citing Tribe, L., American
[253] Grossman, J.B. and Wells, R.S., supra, p. 1276.
Constitutional Law, 2nd ed. (1988), p. 1251. See also Nowak, J.,
[254] Smith, S., supra, p. 149, 159. Rotunda, R., and Young, J., Constitutional Law, 3rd ed. (1986), pp.
1067-1069.
[255] Id. at 149, 159-160.
[280] Id. at 633.
[256] Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
[281] Walz v. Tax Commission, 397 U.S. 664 (1969), p. 673.
[257] Id. at 1276-1277, citing Kirby, Jr., J., Everson to Meek and
Roemer: From Separation to Dtente in Church-State Relations, 55 North [282] McConnell, M., Accommodation of Religion: An Update and a
Carolina Law Review (April 1977), 563-75. Response to the Critics, The George Washington Law Review (1992),
vol. 60 (3), p. 685, 715.
[258] Buzzard, L., Ericsson, S., supra, p. 51.
[283] Buzzard, L., Ericsson, S., supra, pp. 61-63.
[259] Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
[284] McConnell, The Origins and Historical Understanding of Free
[260] Buzzard, L., Ericsson, S., supra, p. 61. Exercise of Religion, Harvard Law Review , vol. 103 (1990), p. 1410,
1416-7.
[261] Zorach v. Clauson, 343 U.S. 306 (1951), pp. 312-314.
[290] Nowak, J., Rotunda, R., and Young, J., supra, p. 1069.
[267] The Constitution and Religion, p. 1569.
[307] Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. [335] 80 SCRA 350 (1977).
182.
[336] 139 SCRA 30 (1985).
[308] Baddiri, E., Islam and the 1987 Constitution: An Issue on the
Practice of Religion, 45 Ateneo Law Journal 161 (2001), p. 208, citing [337] German, et al. v. Barangan, et al., 135 SCRA 514 (1985), p. 525,
Syed Muhammad Al-Naquib Al-Attas, Islam and Secularism 46 (1978). citing Cantwell v. Connecticut, 310 U.S. 296.
[309] Id. at 208, citing Lewis, B., Islam and the West 3 (1993). [338] German, et al. v. Barangan, et al., 135 SCRA 514 (1985), pp. 524-
525.
[310] 64 Phil 201 (1937).
[339] German, et al. v. Barangan, et al., 135 SCRA 514 (1985).
[311] 101 Phil. 386 (1957).
[340] German, et al. v. Barangan, et al., 135 SCRA 514 (1985),
[312] Bernas, Constitutional Rights and Social Demands, Part II, p. 268. Dissenting Opinion of Justice Teehankee.
[313] 106 Phil. 2 (1959). [341] 219 SCRA 256 (1993), March 1, 1993.
[315] Bernas, J., The Constitution of the Republic of the Philippines: A [343] Id. at 271-272.
Commentary (1987), p. 225, Footnote 38.
[344] Id. at 272.
[316] 319 U.S. 103.
[345] Id. at 272-273.
[317] 234 SCRA 630 (1994).
[346] Id. at 270.
[318] 493 U.S. 378 (1990).
[347] Id. at 269.
[319] 106 Phil. 2 (1959).
[348] 259 SCRA 529 (1996).
[320] 106 Phil. 2 (1959), p. 10.
[349] Id. at 543; citing Cruz, I., Constitutional Law (1991), p. 178.
[321] Id. at 11-12.
[350] Id., citing Cruz, I., Constitutional Law (1991), p. 544.
[322] Id. at 14.
[355] Bernas, J., The Constitution of the Republic of the Philippines: A [382] Bernas, J., A Historical and Juridical Study of the Philippine Bill of
Commentary (1987), p. 233. Rights (1971), p. 153.
[356] Id. at 234. [383] Id. at 153, citing Francisco (ed.), Journal of the Constitutional
Convention of the Philippines, vol. 4, p. 1539.
[357] 64 Phil. 201 (1937); Bernas, J., The Constitution of the Republic
of the Philippines: A Commentary (1987), p. 234. [384] Id. at 153-154, citing Francisco (ed.), Journal of the Constitutional
Convention of the Philippines, vol. 4, pp. 1541-1543.
[358] An Act Appropriating the Sum of Sixty Thousand Pesos and
Making the Same Available out of any Funds in the Insular Treasury not [385] Aruego, J., supra, pp. 340-345.
otherwise Appropriated for the Cost of Plates and Printing of Postage
Stamps with New Designs, and for other Purposes. [386] Bernas, J., A Historical and Juridical Study of the Philippine Bill of
Rights (1971), pp. 156-157, citing Escareal (ed.), Constitutional
[359] Aglipay v. Ruiz, 64 Phil. 201 (1937), pp. 205-206. Convention Record, vol. 10 (1967), p. 29.
[360] Id. at. 209-210, citing Bradfield v. Roberts, 175 U.S. 291 (1899). [387] Aruego, J., The Framing of the Philippine Constitution, vol. 2
(1949), pp. 627-629.
[361] 104 SCRA 510 (1981).
[369] 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
[393] Tingson, J., Report of the Committee on Church and State of the
[370] Nowak, J., Rotunda, R., and Young, J., supra, p. 1031. 1971 Constitutional Convention Report, p. 5.
[371] Sherbert v. Verner, 374 U.S. 398 (1963), p. 409. [394] Bernas, J., The Intent of the 1986 Constitution Writers (1995), p.
406, citing Records of the Constitutional Commission, vol. II, pp. 193-
[372] Walz v. Tax Commission, supra, p. 668. 194.
[373] Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. [395] Records of the Constitutional Commission, vol. 4, p. 362.
75.
[396] Id. at 358.
[374] Drakeman, D., supra, p. 127.
[397] Id. at 359.
[375] Buzzard, L. and Ericsson, S., supra, p. 75.
[398] Id. at 973.
[399] Records of the Constitutional Commission, vol. 1, p. 102. [425] Id. at 247.
[400] Bernas, Constitutional Rights and Social Demands, Part II (1991), [426] 210 SCRA 471 (1992).
p. 268.
[427] Magno v. Court of Appeals, et al., 210 SCRA 471 (1992), p. 478,
[401] Cruz, I., Constitutional Law (1995), p. 167. citing Aquino, The Revised Penal Code, 1987 Edition, Vol. I, pp. 11-12,
citing People v. Roldan Zaballero, CA 54 O.G. 6904. Note also Justice
[402] Martinez, H., supra, p. 768-772.
Pablos view in People v. Piosca and Peremne, 86 Phil. 31.
[408] Carter, S., supra, pp. 140-142. The concubine shall suffer the penalty of destierro.
[409] Cruz, I., Constitutional Law (1995), p. 178. [431] Article 266-A of the Revised Penal Code.
[410] Liguid v. Camano, A.M., No. RTJ-99-1509, August 8, 2002; [432] Rule 110 of the Revised Rules of Criminal Procedure, as amended
Bucatcat v. Bucatcat, 380 Phil. 555 (2000); Navarro v. Navarro, 339 provides in relevant part, viz:
SCRA 709 (2000); Ecube-Badel v. Badel, 339 Phil. 510 (1997);
The crime of adultery and concubinage shall not be prosecuted except
Nalupta v. Tapec, 220 SCRA 505 (1993); Aquino v. Navarro, 220 Phil.
upon a complaint filed by the offended spouse. The offended party
49 (1985).
cannot institute criminal prosecution without including the guilty parties,
[411] 68 SCRA 354 (1975). if both are alive, nor, in any case, if the offended party has consented to
the offense or pardoned the offenders.
[412] 305 SCRA 469 (1999).
[433] Velayo, et al. v. Shell Co. of the Philippine Islands, et al., 100 Phil.
[413] Rachels, J., The Elements of Moral Philosophy (1986), p. 1. 186 (1956), pp. 202-203, citing Report of the Code Commission on the
Proposed Civil Code of the Philippines, pp. 40-41.
[414] Devlin, P., The Enforcement of Morals (1965), p. 10.
[416] Devlin, P., supra, 13. [436] Rule 1.01 of the Code of Professional Responsibility provides that,
(a) lawyer shall not engage in unlawful, dishonest, immoral or deceitful
[417] Neuhaus, R., supra, pp. 621, 624-625.
conduct. (emphasis supplied)
[418] McConnell, M., Religious Freedom at a Crossroads, The
[437] Title Six of the Revised Penal Code is entitled Crimes
University of Chicago Law Review (1992), vol. 59(1), p. 115, 139.
against Public Morals and includes therein provisions on gambling and
[419] Neuhaus, R., supra, pp. 624-625. betting. (emphasis supplied)
[420] Greenwalt, K., Conflicts of Law and Morality, p. 247, citing Holmes, [438] The New Civil Code provides, viz:
The Path of the Law, 10 Harv. L. Rev., 457, 459 (1897).
Article 6. Rights may be waived, unless the waiver is contrary to law,
[421] Id. at 247. public order, public policy, morals, or good customs or prejudicial to a
third person with a right recognized by law.
[422] Greenwalt, K., supra, p. 272.
Article 21. Any person who wilfully causes loss or injury to another in a
[423] Buzzard, L. and Ericsson, S., supra, p. 31.
manner that is contrary to morals, good customs or public policy shall
[424] Devlin, P., supra, pp. 19-20. compensate the latter for the damage.
Article 1306. The contracting parties may establish such stipulations, [444] 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
clauses, terms and conditions as they may deem convenient, provided
[445] Devlin, P., supra, p. 22.
that are not contrary to law, morals, good customs, public order, or
public policy. [446] 329 U.S. 14 (1946).
Article 1409. The following contracts are inexistent and void from the [447] Cleveland v. United States, 329 U.S. 14, p. 16.
beginning:
[448] Reynolds v. United States, supra, p. 164.
(1) Those whose cause, object or purpose is contrary to law, morals,
good customs, public order or public policy; x x x (emphasis supplied) [449] Church of Jesus Christ of L.D.S. v. United States, 136 U.S. 1.
[439] Article XIV, Section 3 provides in relevant part, viz: [450] Id.
All educational institutions shall include the study of the Constitution as [451] 226 SCRA 193 (1993).
[442] Smith, S., supra, pp. 184-185. For a defense of this view, see
William P. Marshall, We Know It When We See It: The Supreme Court
and Establishment, 59 S.Cal. L. Rev. 495 (1986). For an extended
criticism of this position, see Steven D. Smith, Symbols, Perceptions,
and Doctrinal Illusions: Establishment Neutrality and the No
Establishment Test, 86 Mich. L. Rev. 266 (1987).
EN BANC
[443] Ostrom, V., Religion and the Constitution of the American Political
System, Emory Law Journal, vol. 39(1), p. 165, citing 1 A. Tocqueville, [G.R. No. 117472. February 7, 1997]
RESOLUTION In sum, the Supplemental Motion for Reconsideration raises three (3)
main issues: (1) mixed factual and legal matters relating to the trial
PER CURIAM:
proceedings and findings; (2) alleged incompetence of accused-
On June 25, 1996, we rendered our decision in the instant case affirming appellant's former counsel; and (3) purely legal question of the
the conviction of the accused-appellant for the crime of raping his ten- constitutionality of R.A. No. 7659.
year old daughter. The crime having been committed sometime in April,
I.
1994, during which time Republic Act (R.A.) No. 7659, commonly known
as the Death Penalty Law, was already in effect, accused-appellant was It is a rudimentary principle of law that matters neither alleged in the
inevitably meted out the supreme penalty of death. pleadings nor raised during the proceedings below cannot be ventilated
for the first time on appeal before the Supreme Court. Moreover, as we
On July 9, 1996, the accused-appellant timely filed a Motion for
have stated in our Resolution in Manila Bay Club Corporation v. Court
Reconsideration which focused on the sinister motive of the victim's
of Appeals:[1]
grandmother that precipitated the filing of the alleged false accusation
of rape against the accused. We find no substantial arguments on the "If well-recognized jurisprudence precludes raising an issue only for the
said motion that can disturb our verdict. first time on appeal proper, with more reason should such issue be
disallowed or disregarded when initially raised only in a motion for
On August 6, 1996, accused-appellant discharged the defense counsel,
reconsideration of the decision of the appellate court."
Atty. Julian R. Vitug, and retained the services of the Anti-Death Penalty
Task Force of the Free Legal Assistance Group of the Philippines It is to be remembered that during the proceedings of the rape case
(FLAG). against the accused-appellant before the sala of then presiding
Judge xxx, the defense attempted to prove that:
On August 23, 1996, we received the Supplemental Motion for
Reconsideration prepared by the FLAG on behalf of accused- a) the rape case was motivated by greed, hence, a mere concoction
appellant. The motion raises the following grounds for the reversal of of the alleged victim's maternal grandmother;
the death sentence:
b) the accused is not the real father of the complainant;
"[1] Accused-appellant should not have been prosecuted since the
c) the size of the penis of the accused cannot have possibly
pardon by the offended party and her mother before the filing of the
penetrated the alleged victim's private part; and
complaint acted as a bar to his criminal prosecution.
d) the accused was in xxx during the time of the alleged rape.
[2] The lack of a definite allegation of the date of the commission of
the offense in the Complaint and throughout trial prevented the accused- In his Brief before us when the rape case was elevated for automatic
appellant from preparing an adequate defense. review, the accused-appellant reiterated as grounds for exculpation:
[3] The guilt of the accused was not proved beyond a reasonable a) the ill-motive of the victim's maternal grandmother in prompting
doubt. her grandchild to file the rape case;
[4] The Honorable Court erred in finding that the accused-appellant b) the defense of denial relative to the size of his penis which could
was the father or stepfather of the complainant and in affirming the not have caused the healed hymenal lacerations of the victim; and
sentence of death against him on this basis.
c) the defense of alibi.
[5] The trial court denied the accused-appellant of due process and
manifested bias in the conduct of the trial. Thus, a second hard look at the issues raised by the new counsel of the
accused-appellant reveals that in their messianic appeal for a reversal
[6] The accused-appellant was denied his constitutional right to of our judgment of conviction, we are asked to consider for the first time,
effective assistance of counsel and to due process, due to the by way of a Supplemental Motion for Reconsideration, the following
incompetence of counsel. matters:
[7] R.A. [No.] 7659, reimposing the death penalty is a) the affidavit of desistance written by the victim which acted as a
unconstitutional per se: bar to the criminal prosecution for rape against the accused-appellant;
a. For crimes where no death results from the offense, the death b) the vagueness attributed to the date of the commission of the
penalty is a severe and excessive penalty in violation of Article III, Sec. offense in the Complaint which deprived the accused-appellant from
19 ( I ) of the 1987 Constitution. adequately defending himself;
c) the failure of this Court to clearly establish the qualifying Appellant's Brief and the Motion for Reconsideration of our June 25,
circumstance that placed the accused-appellant within the coverage of 1996 Decision with extensive discussion in support of his line of
the Death Penalty Law; defense. There is no indication of gross incompetency that could have
resulted from a failure to present any argument or any witness to defend
d) the denial of due process and the manifest bias exhibited by the
his client. Neither has he acted haphazardly in the preparation of his
trial court during the trial of the rape case.
case against the prosecution evidence. The main reason for his failure
Apparently, after a careful scrutiny of the foregoing points for to exculpate his client, the accused-appellant, is the overwhelming
reconsideration, the only legitimate issue that We can tackle relates to evidence of the prosecution. The alleged errors committed by the
the Affidavit of Desistance which touches on the lack of jurisdiction of previous counsel as enumerated by the new counsel could not have
the trial court to have proceeded with the prosecution of the accused- overturned the judgment of conviction against the accused-appellant.
appellant considering that the issue of jurisdiction over the subject
III
matter may be raised at any time, even during appeal.[2]
Although its origins seem lost in obscurity, the imposition of death as
It must be stressed that during the trial proceedings of the rape case
punishment for violation of law or custom, religious or secular, is an
against the accused-appellant, it appeared that despite the admission
ancient practice. We do know that our forefathers killed to avenge
made by the victim herself in open court that she had signed an Affidavit
themselves and their kin and that initially, the criminal law was used to
of Desistance, she, nevertheless, "strongly pointed out that she is not
compensate for a wrong done to a private party or his family, not to
withdrawing the charge against the accused because the latter might do
punish in the name of the state.
the same sexual assaults to other women."[3] Thus, this is one occasion
where an affidavit of desistance must be regarded with disfavor The dawning of civilization brought with it both the increasing
inasmuch as the victim, in her tender age, manifested in court that she sensitization throughout the later generations against past barbarity and
was pursuing the rape charges against the accused-appellant. the institutionalization of state power under the rule of law. Today every
man or woman is both an individual person with inherent human rights
We have explained in the case of People v. Gerry Ballabare,[4] that:
recognized and protected by the state and a citizen with the duty to serve
"As pointed out in People v. Lim (24 190 SCRA 706 [1990], which is also the common weal and defend and preserve society.
cited by the accused-appellant, an affidavit of desistance is merely an
One of the indispensable powers of the state is the power to secure
additional ground to buttress the accused's defenses, not the sole
society against threatened and actual evil. Pursuant to this, the
consideration that can result in acquittal. There must be other
legislative arm of government enacts criminal laws that define and
circumstances which, when coupled with the retraction or desistance,
punish illegal acts that may be committed by its own subjects, the
create doubts as to the truth of the testimony given by the witnesses at
executive agencies enforce these laws, and the judiciary tries and
the trial and accepted by the judge."[5]
sentences the criminals in accordance with these laws.
In the case at bar, all that the accused-appellant offered as defenses
Although penologists, throughout history, have not stopped debating on
mainly consisted of denial and alibi which cannot outweigh the positive
the causes of criminal behavior and the purposes of criminal
identification and convincing testimonies given by the
punishment, our criminal laws have been perceived as relatively stable
prosecution. Hence, the affidavit of desistance, which the victim herself
and functional since the enforcement of the Revised Penal Code on
intended to disregard as earlier discussed, must have no bearing on the
January 1, 1932, this notwithstanding occasional opposition to the death
criminal prosecution against the accused-appellant, particularly on the
penalty provisions therein. The Revised Penal Code, as it was originally
trial court's jurisdiction over the case.
promulgated, provided for the death penalty in specified crimes under
II specific circumstances. As early as 1886, though, capital punishment
had entered our legal system through the old Penal Code, which was a
The settled rule is that the client is bound by the negligence or mistakes modified version of the Spanish Penal Code of 1870.
of his counsel.[6] One of the recognized exceptions to this rule is gross
incompetency in a way that the defendant is highly prejudiced and The opposition to the death penalty uniformly took the form of a
prevented, in effect, from having his day in court to defend himself.[7] constitutional question of whether or not the death penalty is a cruel,
unjust, excessive or unusual punishment in violation of the constitutional
In the instant case, we believe that the former counsel of the accused- proscription against cruel and unusual punishments. We unchangingly
appellant to whom the FLAG lawyers now impute incompetency had answered this question in the negative in the cases of Harden v. Director
amply exercised the required ordinary diligence or that reasonable of Prison,[8] People v. Limaco,[9] People v. Camano,[10] People v.
decree of care and skill expected of him relative to his client's Puda[11] and People v. Marcos,[12] In Harden, we ruled:
defense. As the rape case was being tried on the merits, Atty. Vitug,
from the time he was assigned to handle the case, dutifully attended the "The penalty complained of is neither cruel, unjust nor excessive. In Ex-
hearings thereof. Moreover, he had seasonably submitted the Accused- parte Kemmler, 136 U.S., 436, the United States Supreme Court said
that 'punishments are cruel when they involve torture or a lingering "Excessive fines shall not be imposed, nor cruel, degrading or
death, but the punishment of death is not cruel, within the meaning of inhuman punishment, or the death penalty inflicted. Death penalty
that word as used in the constitution. It implies there something already imposed shall be commuted to reclusion perpetua."
inhuman and barbarous, something more than the mere extinguishment
Father Bernas explained that the foregoing provision was the result of a
of life.'"[13]
consensus among the members of the Bill of Rights Committee that the
Consequently, we have time and again emphasized that our courts are death penalty should be abolished. Having agreed to abolish the death
not the fora for a protracted debate on the morality or propriety of the penalty, they proceeded to deliberate on how the abolition was to be
death sentence where the law itself provides therefor in specific and done -- whether the abolition should be done by the Constitution or by
well-defined criminal acts. Thus we had ruled in the 1951 case the legislature -- and the majority voted for a constitutional abolition of
of Limacothat: the death penalty. Father Bernas explained:
"x x x there are quite a number of people who honestly believe that the "x x x [T]here was a division in the Committee not on whether the death
supreme penalty is either morally wrong or unwise or penalty should be abolished or not, but rather on whether the abolition
ineffective. However, as long as that penalty remains in the statute should be done by the Constitution -- in which case it cannot be restored
books, and as long as our criminal law provides for its imposition in by the legislature -- or left to the legislature. The majority voted for the
certain cases, it is the duty of judicial officers to respect and apply the constitutional abolition of the death penalty. And the reason is that
law regardless of their private opinions,"[14] capital punishment is inhuman for the convict and his family who are
traumatized by the waiting, even if it is never carried out. There is no
and this we have reiterated in the 1995 case of People v.
evidence that the death penalty deterred deadly criminals, hence, life
Veneracion.[15]
should not be destroyed just in the hope that other lives might be
Under the Revised Penal Code, death is the penalty for the crimes of saved. Assuming mastery over the life of another man is just too
treason, correspondence with the enemy during times of war, qualified presumptuous for any man. The fact that the death penalty as an
piracy, parricide, murder, infanticide, kidnapping, rape with homicide or institution has been there from time immemorial should not deter us from
with the use of deadly weapon or by two or more persons resulting in reviewing it. Human life is more valuable than an institution intended
insanity, robbery with homicide, and arson resulting in death. The list of precisely to serve human life. So, basically, this is the summary of the
capital offenses lengthened as the legislature responded to the reasons which were presented in support of the constitutional abolition
emergencies of the times. In 1941, Commonwealth Act (C.A.) No. 616 of the death penalty".[16]
added espionage to the list. In the 1950s, at the height of the Huk
The original wording of Article III, Section 19 (1), however, did not
rebellion, the government enacted Republic Act (R.A.) No. 1700,
survive the debate that it instigated. Commissioner Napoleon G. Rama
otherwise known as the Anti-Subversion Law, which carried the death
first pointed out that "never in our history has there been a higher
penalty for leaders of the rebellion. From 1971 to 1972, more capital
incidence of crime" and that "criminality was at its zenith during the last
offenses were created by more laws, among them, the Anti-Hijacking
decade".[17] Ultimately, the dissent defined itself to an unwillingness to
Law, the Dangerous Drugs Act, and the Anti-Carnapping Law. During
absolutely excise the death penalty from our legal system and leave
martial law, Presidential Decree (P.D.) No. 1866 was enacted penalizing
society helpless in the face of a future upsurge of crimes or other similar
with death, among others, crimes involving homicide committed with an
emergencies. As Commissioner Rustico F. de los Reyes, Jr.
unlicensed firearm.
suggested, "although we abolish the death penalty in the Constitution,
In the aftermath of the 1986 revolution that dismantled the Marcos we should afford some amount of flexibility to future legislation,"[18] and
regime and led to the nullification of the 1973 Constitution, a his concern was amplified by the interpellatory remarks of Commissioner
Constitutional Commission was convened following appointments Lugum L. Commissioner and now Associate Justice Florenz Regalado,
thereto by Corazon Aquino who was catapulted to power by the people. Commissioner Crispino M. de Castro, Commissioner Ambrosio B.
Padilla, Commissioner Christian Monsod, Commissioner Francisco A.
Tasked with formulating a charter that echoes the new found freedom of Rodrigo, and Commissioner Ricardo
a rejuvenated people, the Constitutional Commissioners grouped Romulo. Commissioner Padilla put it succinctly in the following
themselves into working committees among which is the Bill of Rights exchange with Commissioner Teodoro C. Bacani:
Committee with Jose B. Laurel, Jr. As Chairman and Father Joaquin G.
Bernas, S.J., as Vice-Chairman. "BISHOP BACANI. x x x At present, they explicitly make it clear that the
church has never condemned the right of the state to inflict capital
On July 17, 1986, Father Bernas presented the committee draft of the punishment.
proposed bill of rights to the rest of the commission. What is now
Article III, Section 19 (1) of the 1987 Constitution was first denominated MR. PADILLA. x x x So it is granted that the state is not deprived of the
as Section 22 and was originally worded as follows: right even from a moral standpoint of imposing or prescribing capital
punishment.
BISHOP BACANI. Yes. What I am saying is that from the Catholic point completely to the legislature composed of representatives elected by the
of view, that right of the state is not forbidden. people.
MR. PADILLA. In fact x x x we have to accept that the state has the I do not say that we are not competent. But we have to admit the fact
delegated authority from the Creator to impose the death penalty under that we are not elected by the people and if we are going to entrust this
certain circumstances. to the legislature, let us not be half-baked nor half-hearted about it. Let
us entrust it to the legislature 100 percent."[20]
BISHOP BACANI. The state has the delegation from God for it to do
what is needed for the sake of the common good, but the issue at stake Nonetheless, the proposed amendment was approved with twenty-three
is whether or not under the present circumstances that will be for the (23) commissioners voting in favor of the amendment and twelve (12)
common good. voting against it, followed by more revisions, hence the present wording
of Article III, Section 19 (1) of the 1987 Constitution in the following tenor:
MR. PADILLA. But the delegated power of the state cannot be denied.
"Excessive fines shall not be imposed, nor cruel, degrading or inhuman
BISHOP BACANI. Yes, the state can be delegated by God at a
punishment inflicted. Neither shall death penalty be imposed, unless,
particular stage in history, but it is not clear whether or not that
for compelling reasons involving heinous crimes, the Congress hereafter
delegation is forever under all circumstances
provides for it. Any death penalty already imposed shall be reduced
MR. PADILLA. So this matter should be left to the legislature to to reclusion perpetua."
determine, under certain specified conditions or circumstances, whether
The implications of the foregoing provision on the effectivity of the death
the retention of the death penalty or its abolition would be for the
penalty provisions in the Revised Penal Code and certain special
common good. I do not believe this Commission can a priori, and as
criminal laws and the state of the scale of penalties thereunder, were
was remarked within a few days or even a month, determine a positive
tremendous.
provision in the Constitution that would prohibit even the legislature to
prescribe the death penalty for the most heinous crimes, the most The immediate problem pertained to the applicable penalty for what
grievous offenses attended by many qualifying and aggravating used to be capital crimes. In People v. Gavarra,[21] we stated that "in
circumstances."[19] view of the abolition of the death penalty under Section 19, Article III of
the 1987 Constitution, the penalty that may be imposed for murder
What followed, thus, were proposed amendments to the beleaguered
isreclusion temporal in its maximum period to reclusion
provision. The move to add the phrase, "unless for compelling reasons
perpetua"[22] thereby eliminating death as the original maximum
involving heinous crimes, the national assembly provides for the death
period. The constitutional abolition of the death penalty, it seemed,
penalty," came from Commissioners Monsod, Jose E. Suarez and de
limited the penalty for murder to only the remaining periods, to wit, the
los Reyes. Commissioner Rodrigo, however, expressed reservations
minimum and the medium, which we then, in People v.
even as regards the proposed amendment. He said:
Masangkay,[23] People v. Atencio[24] and People v. Intino[25] divided
"x x x [T]he issue here is whether or not we should provide this matter into three new periods, to wit, the lower half of reclusion
in the Constitution or leave it to the discretion of our temporal maximum as the minimum; the upper half of reclusion
legislature. Arguments pro and con have been given x x x. But my temporal maximum as the medium; and reclusion perpetua as the
stand is, we should leave this to the discretion of the legislature. maximum, in keeping with the three-grade scheme under the Revised
Penal Code. In People v. Munoz,[26] however, we reconsidered these
The proposed amendment is halfhearted. It is awkward because we aforecited cases and after extended discussion, we concluded that the
will, in effect, repeal by our Constitution a piece of legislation and after doctrine announced therein did not reflect the intention of the
repealing this piece of legislation, tell the legislature that we have framers. The crux of the issue was whether or not Article III, Section 19
repealed the law and that the legislature can go ahead and enact it (1) absolutely abolished the death penalty, for if it did, then, the
again. I think this is not worthy of a constitutional body like ours. If we aforementioned new three-grade penalty should replace the old one
will leave the matter of the death penalty to the legislature, let us leave where the death penalty constituted the maximum period. But if no total
it completely to the discretion of the legislature, but let us not have this abolition can be read from said constitutional provision and the death
half-baked provision. We have many provisions in the Revised Penal penalty is only suspended, it cannot as yet be negated by the institution
Code imposing the death penalty. We will now revoke or repeal these of a new three-grade penalty premised on the total inexistence of the
pieces of legislation by means of the Constitution, but at the same time death penalty in our statute books. We thus ruled in Munoz:
say that it is up to the legislature to impose this again.
"The advocates of the Masangkay ruling argue that the Constitution
x x x The temper and condition of the times change x x x and so we, I abolished the death penalty and thereby limited the penalty for murder
think we should leave this matter to the legislature to enact statutes to the remaining periods, to wit, the minimum and the medium. These
depending on the changing needs of the times. Let us entrust this should now be divided into three new periods in keeping with the three-
grade scheme intended by the legislature. Those who disagree feel that
Article III, Section 19 (1) merely prohibits the imposition of the death affirmed that a vote of Yes in the nominal voting would mean a vote in
penalty and has not, by reducing it toreclusion perpetua, also favor of death penalty on at least one crime, and that certain refinements
correspondingly reduced the remaining penalties. These should be on how the penalty would be imposed would be left to the discretion of
maintained intact. the seven-man committee.
A reading of Section 19 (1) of Article III will readily show that there is xxx
really nothing therein which expressly declares the abolition of the death
INQUIRY OF SENATOR TAADA
penalty. The provision merely says that the death penalty shall not be
imposed unless for compelling reasons involving heinous crimes the In reply to Senator Taada's query, the Chair affirmed that even if a
Congress hereafter provides for it and, if already imposed, shall be senator would vote 'yes' on the basic policy issue, he could still vote 'no'
reduced to reclusion perpetua. The language, while rather awkward, is on the imposition of the death penalty on a particular crime.
still plain enough".[27]
REMARKS OF SENATOR TOLENTINO
Nothing is more defining of the true content of Article III, Section 19 (1)
of the 1987 Constitution than the form in which the legislature took the Senator Tolentino observed that the Body would be voting on the basic
initiative in re-imposing the death penalty. policy issue of whether or not the death penalty would be included in the
scale of penalties found in Article 27 of the Revised Penal Code, so that
The Senate never doubted its power as vested in it by the constitution, if it is voted down, the Body would discontinue discussing Senate Bill
to enact legislation re-imposing the death penalty for compelling reasons No. 891 pursuant to the Rules, but if approved, a special committee, as
involving heinous crimes. Pursuant to this constitutional mandate, the agreed upon in the caucus, is going to be appointed and whatever
Senate proceeded to a two-step process consisting of: first, the course it will take will depend upon the mandate given to it by the Body
decision, as a matter of policy, to re-impose the death penalty or not; later on.
and second, the vote to pass on the third reading the bill re-imposing the
death penalty for compelling reasons involving heinous crimes. The Chair affirmed Senator Tolentino's observations.
On February 15, 1993, after a fierce and fiery exchange of arguments REMARKS OF SENATOR ROCO
for and against capital punishment, the Members of the Senate voted on
Senator Roco stated that the Body would vote whether or not death as
the policy issue of death penalty. The vote was explained, thus:
a penalty will be reincorporated in the scale of penalties provided by the
"SUSPENSION OF THE RULES Revised Penal Code. However, he pointed out that if the Body decides
in favor of death penalty, the Body would still have to address two
Upon motion of Senator Romulo, there being no objection, the Body issues: 1) Is the crime for which the death penalty is supposed to be
suspended the Rules of the Senate. imposed heinous pursuant to the constitutional mandate? 2) And, if so,
is there a compelling reason to impose the death penalty for it? The
Thereafter, upon motion of Senator Romulo, there being no objection,
death penalty, he stressed, cannot be imposed simply because the
the Chair directed that a nominal voting be conducted on the policy issue
crime is heinous."[28]
of death penalty.
With seventeen (17) affirmative votes and seven (7) negative votes and
INQUIRY OF SENATOR TOLENTINO
no abstention, the Chair declared that the Senate has voted to re-
Asked by Senator Tolentino on how the Members of the Senate would incorporate death as a penalty in the scale of penalties as provided in
vote on this policy question, Senator Romulo stated that a vote of Yes the Revised Penal Code. A nine-person committee was subsequently
would mean a vote in favor of death as a penalty to be reincorporated in created to draft the compromise bill pursuant to said vote. The mandate
the scale of penalties as provided in the Revised Penal Code, and a vote of the committee was to retain the death penalty, while the main debate
of No would be a vote against the reincorporation of death penalty in the in the committee would be the determination of the crimes to be
scale of penalties in the Revised Penal Code. considered heinous.
INQUIRY OF SENATOR ALVAREZ On March 17, 1993, Senator Arturo Tolentino, Chairman of the Special
Committee on the Death Penalty, delivered his Sponsorship
xxx
Speech. He began with an explanation as to why the Senate Bill No.
The Chair explained that it was agreed upon that the Body would first 891 re-imposes the death penalty by amending the Revised Penal Code
decide the question whether or not death penalty should be reimposed, and other special penal laws and includes provisions that do not define
and thereafter, a seven-man committee would be formed to draft the or punish crimes but serve purposes allied to the reimposition of the
compromise bill in accordance with the result of the voting. If the Body death penalty. Senator Tolentino stated:
decides in favor of the death penalty, the Chair said that the committee
x x x [W]hen the Senate approved the policy of reimposing the death
would specify the crimes on which death penalty would be imposed. It
penalty on heinous crimes and delegated to the Special Committee the
work of drafting a bill, a compromise bill that would be the subject for penalty in these offenses originally punished in the Revised Penal
future deliberations of this Body, the Committee had to consider that the Code."[30]
death penalty was imposed originally in the Revised Penal Code.
From March 17, 1993, when the death penalty bill was presented for
So, when the Constitution was approved in order to do away with the discussion until August 16, 1993, the Members of the Senate debated
death penalty, unless Congress should, for compelling reasons on its provisions.
reimpose that penalty on heinous crimes, it was obvious that it was the
The stiffest opposition thereto was bannered by Senator Lina who kept
Revised Penal Code that was affected by that provision of the
prodding the sponsors of the bill to state the compelling reason for each
Constitution. The death penalty, as provided in the Revised Penal
and every crime for which the supreme penalty of death was
Code, would be considered as having been repealed -- all provisions on
sought. Zeroing in on the statement in the preamble of the death penalty
the death penalty would be considered as having been repealed by the
bill that the same is warranted in the face of "the alarming upsurge of
Constitution, until Congress should, for compelling reasons, reimpose
[heinous] crimes", Senator Lina demanded for solid statistics showing
such penalty on heinous crimes. Therefore, it was not only one article
that in the case of each and every crime in the death penalty bill, there
but many articles of the Revised Penal Code that were actually affected
was a significantly higher incidence of each crime after the suspension
by the Constitution.
of the death penalty on February 2, 1987 when the 1987 Constitution
And it is in consideration of this consequence of the constitutional was ratified by the majority of the Filipino people, than before such
provision that our Special Committee had to consider the Revised Penal ratification.[31]Inasmuch as the re-impositionists could not satisfy the
Code itself in making this compromise bill or text of the bill. That is why, abolitionists with sufficient statistical data for the latter to accept the
in the proposed draft now under consideration which we are sponsoring, alarming upsurge of heinous crimes as a compelling reason justifying
the specific provisions of the Revised Penal Code are actually either the reimposition of the death penalty, Senator Lina concluded that there
reenacted or amended or both. Because by the effect of the were, in fact, no compelling reasons therefor. In the alternative, Senator
Constitution, some provisions were totally repealed, and they had to be Lina argued that the compelling reason required by the constitution was
reenacted so that the provisions could be retained. And some of them that "the State has done everything in its command so that it can be
had to be amended because the Committee thought that amendments justified to use an inhuman punishment called death penalty".[32] The
were proper."[29] problem, Senator Lina emphasized, was that even the re-impositionists
admit that there were still numerous reforms in the criminal justice
In response to a query by Senator Gloria Macapagal-Arroyo as to
system that may and must be put in place, and so clearly, the recourse
whether or not it would have been better if the Senate were to enact a
to the enactment of a death penalty bill was not in the nature of a last
special law which merely defined and imposed the death penalty for
resort, hence, unconstitutional in the absence of compelling
heinous crimes, Senator Tolentino explicated, thus:
reasons. As an initial reaction to Senator Lina's contentions, Senator
"x x x [T]hat may be a way presenting the bill. But we must bear in mind Tolentino explained that the statement in the preamble is a general one
that the death penalty is imposed in the Revised Penal and refers to all the crimes covered by the bill and not to specific
Code. Therefore, when the Constitution abolished the death penalty, it crimes. He added that one crime may not have the same degree of
actually was amending the Revised Penal Code to such an extent that increase in incidence as the other crimes and that the public demand to
the Constitution provides that where the death penalty has already been impose the death penalty is enough compelling reason.[33]
imposed but not yet carried out, then the penalty shall be reclusion
Equally fit to the task was Senator Wigberto Taada to whom the battle
perpetua, that is the penalty in the Revised Penal Code. So we thought
lines were clearly drawn. He put to issue two things: first, the definition
that it would be best to just amend the provisions of the Revised Penal
of "heinous crimes" as provided for in the death penalty bill; and second,
Code, restoring the death penalty for some crimes that may be
the statement of compelling reasons for each and every capital
considered as heinous. That is why the bill is in this form amending the
crime. His interpellation of Senator Tolentino clearly showed his
provisions of the Revised Penal Code.
objections to the bill:
Of course, if some people want to present a special bill . . . the whole
"Senator Taada. x x x But what would make crimes heinous, Mr.
trouble is, when a special bill is presented and we want to punish in the
President? Are crimes heinous by their nature or elements as they are
special bill the case of murder, for instance, we will have to reproduce
described in the bill or are crimes heinous because they are punished
the provisions of the Revised Penal Code on murder in order to define
by death, as bribery and malversation are proposed to be punished in
the crime for which the death penalty shall be imposed. Or if we want
the bill?
to impose the death penalty in the case of kidnapping which is punished
in the Revised Penal Code, we will do the same -- merely Senator Tolentino. They are heinous by their nature, Mr. President, but
reproduce. Why will we do that? So we just followed the simpler that is not supposed to be the exclusive criterion. The nature of the
method of keeping the definition of the crime as the same and merely offense is the most important element in considering it heinous but, at
adding some aggravating circumstances and reimposing the death
the same time, we should consider the relation of the offense to society Senator Taada. Under the Constitution, Mr. President, it appears that
in order to have a complete idea of the heinous nature of these offenses. the reimposition of the death penalty is subject to three conditions and
these are:
In the case of malversation or bribery, for instance, these offenses by
themselves connected with the effect upon society and the government 1. Congress should so provide such reimposition of the death
have made them fall under the classification of heinous crimes. The penalty;
compelling reason for imposing the death penalty is when the offenses
2. There are compelling reasons; and
of malversation and bribery becomes so grave and so serious as
indicated in the substitute bill itself, then there is a compelling reason for 3. These involve heinous crimes.
the death penalty.
Under these provision of the Constitution, paragraph 1, Section 13, does
Senator Taada. With respect to the compelling reasons, Mr. President, the distinguished Gentleman not feel that Congress is bound to state
does the Gentleman believe that these compelling reasons, which would clearly the compelling reasons for the reimposition of the death penalty
call for the reimposition of the death penalty, should be separately, for each crime, as well as the elements that make each of the crimes
distinctly and clearly stated for each crime so that it will be very clear to heinous included in the bill?
one and all that not only are these crimes heinous but also one can see
the compelling reasons for the reimposition of the death penalty Senator Tolentino. Mr. President, that is a matter of opinion already. I
therefor? believe that whether we state the compelling reasons or not, whether we
state why a certain offense is heinous, is not very important. If the
Senator Tolentino. Mr. President, that matter was actually considered question is raised in the Supreme Court, it is not what we say in the bill
by the Committee. But the decision of the Committee was to avoid that will be controlling but what the Supreme Court will fell as a sufficient
stating the compelling reason for each and every offense that is included compelling reason or as to the heinous nature whether the crime is
in the substitute measure. That is why in the preamble, general heinous or not. The accused can certainly raise the matter of
statements were made to show these compelling reasons. And that, we constitutionality but it will not go into the matter of due process. It will go
believe, included in the bill, when converted into law, would be sufficient into the very power of Congress to enact a bill imposing the death
notice as to what were considered compelling reasons by the Congress, penalty. So that would be entirely separate from the matter of due
in providing the death penalty for these different offenses. process." [34]
If a matter like this is questioned before the Supreme Court, I would Senator Francisco Tatad, on his part, pointed out that the death penalty
suppose that with the preamble already in general terms, the Supreme bill violated our international commitment in support of the worldwide
Court would feel that it was the sense of Congress that this preamble abolition of capital punishment, the Philippines being a signatory to the
would be applicable to each and every offense described or punishable International Covenant on Civil and Political Rights and its Second
in the measure. Optional Protocol. Senator Ernesto Herrera clarified, however, that in
the United Nations, subject matters are submitted to the different
So we felt that it was not necessary to repeat these compelling reasons
committees which vote on them for consideration in the plenary
for each and every offense.
session. He stressed that unless approved in the plenary session, a
Senator Taada. Mr. President, I am thinking about the constitutional declaration would have no binding effect on signatory countries. In this
limitations upon the power of Congress to enact criminal legislation, respect, the Philippines cannot be deemed irrevocably bound by said
especially the provisions on the Bill of Rights, particularly the one which covenant and protocol considering that these agreements have reached
says that no person shall be held to answer for a criminal offense without only the committee level.[35]
due process of law.
After the protracted debate, the Members of the Senate voted on Senate
Can we not say that under this provision, it is required that the Bill No. 891 on third reading. With seventeen (17) affirmative votes, four
compelling reasons be so stated in the bill so that the bill, when it (4) negative votes, and one abstention, the death penalty bill was
becomes a law, will clearly define the acts and the omissions punished approved on third reading on August 16, 1993.
as crimes?
The Senate's vote to pass Senate Bill No. 891 on third reading on August
Senator Tolentino. Mr. President, I believe that in itself, as substantive 16, 1993 was a vindication of, the House of Representatives. The
law, this is sufficient. The question of whether there is due process will House had, in the Eight Congress, earlier approved on third reading
more or less be a matter of procedure in the compliance with the House Bill No. 295 on the restoration of the death penalty for certain
requirements of the Constitution with respect to due process itself which heinous crimes. The House was in effect rebuffed by the Senate when
is a separate matter from the substantive law as to the definition and the Senate killed House Bill No. 295 along with other bills coming from
penalty for crimes. the House. House Bill No. 295 was resurrected during the Ninth
Congress in the form of House Bill No. 62 which was introduced by
twenty one (21) Members of the House of Representatives on October inherent viciousness, shows a patent disregard and mockery of the law,
27, 1992. House Bill No. 62 was a merger of House Bill Nos. 125, 187, public peace and order, or public morals. It is an
411, 764, 506, 781, 955, 1565, 1586, 2206, 3238, 3576 and 3632 offense whoseessential and inherent viciousness and atrocity are
authored by various Members of the Lower House. repugnant and outrageous to a civilized society and hence, shock the
moral self of a people.
In his Sponsorship Speech, Representative Manuel R. Sanchez of Rizal
ably essayed the constitutional vesting in Congress of the power to re- Of late, we are witness to such kind of barbaric crimes.
impose the death penalty for compelling reasons invoking heinous
The Vizconde massacre that took the lives of a mother and her two
crimes as well as the nature of this constitutional pre-requisite to the
lovely daughters, will stand in the people's memory for many long years
exercise of such power.
as the epitome of viciousness and atrocity that are repugnant to civilized
"Mr. Speaker, in Article III, Section 19(1) of Constitution reads, a I quote: society.
'Neither shall death penalty be imposed, unless, for compelling reasons The senseless murder of Eldon Maguan, and up-and-coming young
involving heinous crimes, the Congress shall thereafter provide for it . . business executive, was and still is an outrage that shocks the moral self
.' of our people.
The phrase 'unless, for compelling reasons involving heinous crimes, The mind-boggling death of Maureen Hultmann, a comely 16 year-old
the Congress shall thereafter provide for it was introduced as an high school student who dreamt of becoming a commercial model
amendment by then Comm. Christian Monsod. someday, at the hands of a crazed man was so repulsive, so brutal that
it offends the sensibilities of Christians and non-Christians alike
The import of this amendment is unmistakable. By this amendment, the
death penalty was not completely abolished by the 1987 The cold-blooded double murder of Cochise Bernabe and Beebom
Constitution. Rather, it merely suspended the death penalty and gave Castanos, the lovely and promising couple from the University of the
Congress the discretion to review it at the propitious time. Philippines, is eternally lodged in the recesses of our minds and still
makes our stomach turn in utter disgust.
Arguing for the inclusion of said amendment in the fine provision, Comm.
Ricardo Romulo said, and I quote: xxx xxx
xxx
"'The people should have the final say on the subject, because, at some
future time, the people might want to restore death penalty through The seriousness of the situation is such that if no radical action is taken
initiative and referendum. by this body in restoring death penalty as a positive response to the
overwhelming clamor of the people, then, as Professor Esteban Bautista
Commissioner Monsod further argued, and I quote:
of the Philippine Law Center said, and I quote:
We cannot presume to have the wisdom of the ages. Therefore, it is
'When people begin to believe that organized society is unwilling or
entirely possible in the future that circumstances may arise which we
unable to impose upon criminal offenders the punishment they deserve,
should not preclude today.
there are sown the seeds of anarchy of self-help, of vigilante justice and
xxx xxx lynch law. The people will take the law upon their hands and exact
xxx vengeance in the nature of personal vendetta.'
I believe that [there] are enough compelling reasons that merit the It is for this reason, Mr. Speaker, that I stand here and support House
reimposition of the capital punishment. The violent manner and the Bill No. 62.
viciousness in which crimes are now committed with alarming regularity,
As duly elected Representatives of our people, collectively, we ought to
show very clearly a patent disregard of the law and a mockery of public
listen to our constituents and heed their plea a plea for life, liberty and
peace and order.
pursuit of their happiness under a regime of justice and democracy, and
In the public gallery section today are the relatives of the victims of without threat that their loves ones will be kidnapped, raped or
heinous crimes the Hultmans, the Maguans, the Vizcondes, the butchered.
Castanoses, and many more, and they are all crying for justice. We
But if such a misfortune befalls them, there is the law they could rely on
ought to listen to them because their lives, their hopes, their dreams,
for justice. A law that will exact retribution for the victims. A law that will
their future have fallen asunder by the cruel and vicious criminality of a
deter future animalistic behavior of the criminal who take their selfish
few who put their selfish interest above that of society.
interest over and above that of society. A law that will deal a deathblow
Heinous crime is an act or series of acts which, by the flagrantly violent upon all heinous crimes.
manner in which the same was committed or by the reason of its
Mr. Speaker, my distinguished colleagues, for the preservation of all that In the crime of rape, not only do we speak of the pain and agony of the
we hold dear and sacred, let us restore the death penalty."[36] parents over the personal shock and suffering of their child but the
stigma of the traumatic and degrading incident which has shattered the
A studious comparison of the legislative proceedings in the Senate and
victim's life and permanently destroyed her reputation, not to mention
in the House of Representatives reveals that, while both Chambers were
the ordeal of having to undergo the shameful experience of police
not wanting of oppositors to the death penalty, the Lower House seemed
interrogation and court hearings.
less quarrelsome about the form of the death penalty bill as a special
law specifying certain heinous crimes without regard to the provisions of Piracy, which is merely a higher form of robbery, is punished for the
the Revised Penal Code and more unified in the perception of what universal hostility of the perpetrators against their victims who are
crimes are heinous and that the fact of their very heinousness involves passengers and complement of the vessel, and because of the fact that,
the compulsion and the imperative to suppress, if not completely in the high seas, no one may be expected to be able to come to the
eradicate, their occurrence. Be it the foregoing general statement of rescue of the helpless victims. For the same reason, Mr. Speaker, the
Representative Sanchez or the following details of the nature of the crime of air piracy is punished due to the evil motive of the hijackers in
heinous crimes enumerated in House Bill No. 62 by Representative making unreasonable demands upon the sovereignty of an entire nation
Miguel L. Romero of Negros Oriental, there was clearly, among the or nations, coupled with the attendant circumstance of subjecting the
hundred or so re-impositionists in the Lower House, no doubt as to their passengers to terrorism." [37]
cause:
The debate on House Bill No. 62 lasted from October 27, 1992 to
"My friends, this bill provides for the imposition of the death penalty not February 11, 1993. On February 11, 1993, the Members of the House
only for the importation, manufacture and sale of dangerous drugs, but of Representatives overwhelmingly approved the death penalty bill on
also for other heinous crimes such as reason; parricide; murder; second reading.
kidnapping; robbery; rape as defined by the Revised Penal Code with or
On February 23, 1993, after explaining their votes, the Members of the
without additionally defined circumstances; plunder, as defined in R.A.
House of Representatives cast their vote on House Bill No. 62 when it
7080; piracy, as defined under Section 2 of PD 532; carnapping, as
was up for consideration on third reading. [38] The results were 123
defined in Section 2 of RA 6539, when the owner, driver or occupant is
votes in favor, 26 votes against, and 2 abstentions
killed; hijacking, as defined in xxx RA 6235; and arson resulting in the
death of any occupants. After the approval on third reading of House Bill No. 62 on February 23,
1993 and of Senate Bill No. 891 on August 16, 1993, the Bicameral
All these crimes have a common denominator which qualifies them to
Conference Committee convened to incorporate and consolidate them.
the level of heinous crimes. A heinous crime is one which, by reason of
its inherent or manifest wickedness, viciousness, atrocity or perversity, On December 31, 1993, Republic Act (R.A.) No. 7659, entitled, "An Act
is repugnant and outrageous to the common standards of decency and to Impose the Death Penalty on Certain Heinous Crimes, Amending for
morality in a just and civilized society. that Purpose the Revised Penal Code, as Amended, Other Special
Penal Laws, and for Other Purposes," took effect.[39]
For instance, the crime of treason is defined as a breach of allegiance
to a government, committed by a person who owes allegiance to it (U.S. Between December 31, 1993, when R.A. No. 7659 took effect, and the
v. Abad 1 Phil. 437). By the 'allegiance' is meant the obligation of fidelity present time, criminal offenders have been prosecuted under said law,
and obedience which individuals owe to the government under which and one of them, herein accused-appellant, has been, pursuant to said
they live or to their sovereign in return for the protection which they law, meted out the supreme penalty of death for raping his ten-year old
receive (52 Am Jur 797). daughter. Upon his conviction, his case was elevated to us on
automatic review. On June 25, 1996, we affirmed his conviction and the
In kidnapping, the though alone of one's loved one being held against
death sentence.
his or her own will in some unidentified xxx house by a group of
scoundrels who are strangers is enough terrify and send shivers of fear Now, accused-appellant comes to us in the heels of this court's
through the spine of any person, even scoundrels themselves. affirmation of his death sentence and raises for the first time the issue
of the constitutionality of R.A. 7659. His thesis is two-fold: (1) that the
In robbery accompanied by rape, intentional mutilation or arson, what is
death penalty law is unconstitutional per se for having been enacted in
being punished by death is the fact that the perpetrator, at the time of
the absence of compelling reasons therefor; and (2) that the death
the commission of the crime, thinks nothing of the other crime he
penalty for rape is a cruel, excessive and inhuman punishment in
commits and sees it merely as a form of self-amusement. When a
violation of the constitutional proscription against punishment of such
homicide is committed by reason of the robbery, the culprits are
nature.
perceived as willing to take human life in exchange for money or other
personal property. We reject accused-appellant's proposition.
Three justices interposed their dissent hereto, agreeing with accused- elements that make them heinous. They were oblivious to the fact that
appellant's view that Congress enacted R.A. No. 7659 without there were two types of crimes in the death penalty bill: first, there were
complying with the twin requirements of compelling reasons and crimes penalized by reclusion perpetua to death; and second, there
heinous crimes. were crimes penalized by mandatory capital punishment upon the
attendance of certain specified qualifying circumstances.
At this juncture, the detailed events leading to the enactment of R.A. No.
7659 as unfurled in the beginning of this disquisition, necessarily provide Under R.A. No. 7659, the following crimes are penalized by reclusion
the context for the following analysis. perpetua to death:
Article III, Section 19 (1) of the 1987 Constitution plainly vests in (1) Treason (Sec. 2);
Congress the power to re-impose the death penalty "for compelling
(2) Qualified piracy (Sec. 3);
reasons involving heinous crimes". This power is not subsumed in the
plenary legislative power of Congress, for it is subject to a clear showing (3) Parricide (Sec. 5);
of "compelling reasons involving heinous crimes."
(4) Murder (Sec. 6);
The constitutional exercise of this limited power to re-impose the death
penalty entails (1) that Congress define or describe what is meant by (5) Infanticide (Sec. 7);
heinous crimes; (2) that Congress specify and penalize by death, only
(6) Kidnapping and serious illegal detention if attended by any of the
crimes that qualify as heinous in accordance with the definition or
following four circumstances: (a) the victim was detained for more than
description set in the death penalty bill and/or designate crimes
three days; (b) it was committed simulating public authority; (c) serious
punishable by reclusion perpetua to death in which latter case, death
physical injuries were inflicted on the victim or threats to kill him were
can only be imposed upon the attendance of circumstances duly proven
made; and (d) if the victim is a minor, except when the accused is any
in court that characterize the crime to be heinous in accordance with the
of the parents, female or a public officer (Sec. 8);
definition or description set in the death penalty bill; and (3) that
Congress, in enacting this death penalty bill be singularly motivated by (7) Robbery with homicide, rape or intentional mutilation (Sec. 9);
"compelling reasons involving heinous crimes."
(8) Destructive arson if what is burned is (a) one or more buildings or
In the second whereas clause of the preamble of R.A. No. 7659, we find edifice; (b) a building where people usually gather; (c) a train, ship or
the definition or description of heinous crimes. Said clause provides that airplane for public use; (d) a building or factory in the service of public
utilities; (e) a building for the purpose of concealing or destroying
"x x x the crimes punishable by death under this Act are heinous for
evidence Or a crime; (f) an arsenal, fireworks factory, or government
being grievous, odious and hateful offenses and which, by reason of
museum; and (g) a storehouse or factory of explosive materials located
their inherent or manifest wickedness, viciousness, atrocity and
in an inhabited place; or regardless of what is burned, if the arson is
perversity are repugnant and outrageous to the common standards and
perpetrated by two or more persons (Sec. 10);
norms of decency and morality in a just, civilized and ordered society."
(9) Rape attended by any of the following circumstances: (a) the rape
Justice Santiago Kapunan, in his dissenting opinion in People v.
is committed with a deadly weapon; (b) the rape is committed by two or
Alicando, [40] traced the etymological root of the word "heinous" to the
more persons; and (c) the rape is attempted or frustrated and committed
Early Spartans' word, "haineus", meaning, hateful and abominable,
with homicide (Sec. 11);
which, in turn, was from the Greek prefix "haton", denoting acts so
hatefully or shockingly evil. (10) Plunder involving at least P50 million (Sec. 12);
We find the foregoing definition or description to be a sufficient criterion (11) Importation of prohibited drugs (Sec. 13);
of what is to be considered a heinous crime. This criterion is deliberately
(12) Sale, administration, delivery, distribution, and transportation of
undetailed as to the circumstances of the victim, the accused, place,
prohibited drugs (id.);
time, the manner of commission of crime, its proximate consequences
and effects on the victim as well as on society, to afford the sentencing (13) Maintenance of den, dive or resort for users of prohibited drugs
authority sufficient leeway to exercise his discretion in imposing the (id.);
appropriate penalty in cases where R.A. No. 7659 imposes not a
(14) Manufacture of prohibited drugs (id.);
mandatory penalty of death but the more flexible penalty of reclusion
perpetua to death. (15) Possession or use of prohibited drugs in certain specified amounts
(id.);
During the debates on the proposed death penalty bill, Senators Lina
and Taada grilled the sponsors of the bill as regards what they perceived (16) Cultivation of plants which are sources of prohibited drugs (id.)
as a mere enumeration of capital crimes without a specification of the
(17) Importation of regulated drugs (Sec. 14);
(18) Manufacture of regulated drugs (id.); "The penalty shall be death where the kidnapping or detention was
committed for the purpose of ransom from the victim or any other
(19) Sale, administration, dispensation, delivery, transportation, and
person, even if none of the circumstances above-mentioned were
distribution of regulated drugs (id.);
present in the commission of the offense.
(20) Maintenance of den, dive, or resort for users of regulated drugs
When the victim is killed or dies as a consequence of the detention or is
(Sec. 15);
raped, or is subject to torture or dehumanizing acts, the maximum
(21) Possession or use of regulated drugs in specified amounts (Sec. penalty [of death] shall be imposed." (Sec. 8)
16);
(3) Destructive arson resulting in death
All the foregoing crimes are not capital crimes per se, the uniform insane, the penalty shall be death.
penalty for all of them being not mandatory death but the flexible penalty
xxx xxx xxx
of reclusion perpetua to death. In other words, it is premature to demand
for a specification of the heinous elements in each of foregoing crimes When by reason or on the occasion of the rape, a homicide is committed,
because they are not anyway mandatorily penalized with death. The the penalty shall be death.
elements that call for the imposition of the supreme penalty of death in
The death penalty shall also be imposed if the crime of rape is committed
these crimes, would only be relevant when the trial court, given the
with any of the following attendant circumstances:
prerogative to impose reclusion perpetua, instead actually imposes the
death penalty because it has, in appreciating the evidence proffered 1. when the victim is under eighteen (18) years of age and the offender
before it, found the attendance of certain circumstances in the manner is a parent, ascendant, step-parent, guardian, relative by consanguinity
by which the crime was committed, or in the person of the accused on or affinity within the third civil degree, or the common-law spouse of the
his own or in relation to the victim, or in any other matter of significance parent or the victim.
to the commission of the crime or its effects on the victim or on society,
which circumstances characterize the criminal acts as grievous, odious, 2. when the victim is under the custody of the police or military
If it is the public officer who asks or demands such gift or present, he (5) Sale, administration, delivery, distribution and transportation of
shall suffer the penalty of death." (Sec. 4) prohibited drugs where the victim is a minor or the victim dies
(2) Kidnapping and serious illegal detention for ransom resulting in "Notwithstanding the provision of Section 20 of this Act to the contrary,
the death of the victim or the victim is raped, tortured or subjected to if the victim of the offense is a minor, or should a prohibited drug involved
dehumanizing acts in any offense under this Section be the proximate cause of the death of
victim thereof, the maximum penalty [of death] herein provided shall be vicinity of another as evidence to implicate the latter, shall suffer the
imposed." (Sec. 13) same penalty as therein provided." (Sec. 19)
(6) Maintenance of den, dive, or resort for users of prohibited drugs (11) In all the crimes in RA. No. 7659 in their qualified form
where the victim is a minor or the victim dies
"When in the commission of the crime, advantage was taken by the
"Notwithstanding the provisions of Section 20 of this Act to the contrary, offender of his public position, the penalty to be imposed shall be in its
the maximum of the penalty [of death] shall be imposed in every case maximum [of death] regardless of mitigating circumstances.
where a prohibited drug is administered, delivered or sold to a minor who
The maximum penalty [of death] shall be imposed if the offense was
is allowed to use the same in such place.
committed by any person who belongs to an organized/syndicated crime
Should a prohibited drug be the proximate case of the death of a person group.
using the same in such den, dive or resort, the maximum penalty herein
An organized/syndicated crime group means a group of two or more
provided shall be imposed on the maintainer notwithstanding the
persons collaborating, confederating or mutually helping one another for
provisions of Section 20 of this Act to the contrary." (Sec. 13)
purposes of gain in the commission of any crime." (Sec. 23)
(7) Sale, administration, dispensation, delivery, distribution and
It is specifically against the foregoing capital crimes that the test of
transportation of regulated drugs where the victim is a minor or the victim
heinousness must be squarely applied.
dies
The evil of a crime may take various forms. There are crimes that are,
"Notwithstanding the provisions of Section 20 of this Act to the contrary,
by their very nature, despicable, either because life was callously taken
if the victim of the offense is a minor, or should a regulated drug involved
or the victim is treated like an animal and utterly dehumanized as to
in any offense under this Section be the proximate cause of the death of
completely disrupt the normal course of his or her growth as a human
a victim thereof, the maximum penalty [of death] herein provided shall
being. The right of a person is not only to live but to live a quality life,
be imposed." (Sec. 14)
and this means that the rest of society is obligated to respect his or her
(8) Maintenance of den, dive, or resort for users of regulated drugs individual personality, the integrity and the sanctity of his or her own
where the victim is a minor or the victim dies physical body, and the value he or she puts in his or her own spiritual,
psychological, material and social preferences and needs. Seen in this
"Notwithstanding the provisions of Section 20 of this Act to the contrary,
light, the capital crimes of kidnapping and serious illegal detention for
the maximum penalty [of death] herein provided shall be imposed in
ransom resulting in the death of the victim or the victim is raped, tortured,
every case where a regulated drug is administered, delivered or sold to
or subjected to dehumanizing acts; destructive arson resulting in death,
a minor who is allowed to use the same in such place.
and drug offenses involving minors or resulting in the death of the victim
Should a regulated drug be the proximate cause of death of a person in the case of other crimes; as well as murder, rape, parricide,
using the same in such den, dive or resort, the maximum penalty herein infanticide, kidnapping and serious illegal detention where the victim is
provided shall be imposed on the maintainer notwithstanding the detained for more than three days or serious physical injuries were
provisions of Section 20 of this Act to the contrary." (Sec. 15) inflicted on the victim or threats to kill him were made or the victim is a
minor, robbery with homicide, rape or intentional mutilation, destructive
(9) Drug offenses if convicted are government officials, employees or arson, and carnapping where the owner, driver or occupant of the
officers including members of police agencies and armed forces carnapped vehicle is killed or raped, which are penalized by reclusion
perpetua to death, are clearly heinous by their very nature.
"The maximum penalties [of death] provided for in Section 3, 4 (1), 5(1),
6, 7, 8, 9, 11,12 and 13 of Article II and Sections 14, 14-A, 14(1), 15A There are crimes, however, in which the abomination lies in the
(1), 16, and 19 of Article III [of the Dangerous Drugs Act of 1972] shall significance and implications of the subject criminal acts in the scheme
be imposed, if those found guilty or any of the same offenses are of the larger socio-political and economic context in which the state finds
government officials, employees or officers including members of police itself to be struggling to develop and provide for its poor and
agencies and the armed forces." (Sec. 19) underprivileged masses. Reeling from decades of corrupt tyrannical
rule that bankrupted the government and impoverished the population,
(10) Planting of dangerous drugs as evidence in drug offenses with the
the Philippine Government must muster the political will to dismantle the
mandatory death penalty if convicted are government officials,
culture of corruption, dishonesty, greed and syndicated criminality that
employees or officers
so deeply entrenched itself in the structures of society and psyche of the
"Any such above government official, employee or officer who is found populace. Terribly lacking the money to provide even the most basic
guilty of 'planting' any dangerous drugs punished in Section s 3, 4, 7, 8, services to its people, any form of misappropriation or misapplication of
9 and 13 of Article II and Sections 14, 14-A, 15, and 16 of Article III (of government funds translates to an actual threat to the very existence of
the Dangerous Drugs Act of 1972) in the person or in the immediate government, and in turn, the very survival of the people it governs
over. Viewed in this context, no less heinous are the effects and In the course of the congressional debates on the constitutional
repercussions of crimes like qualified bribery, destructive arson resulting requirement that the death penalty be re-imposed for compelling
in death, and drug offenses involving government officials, employees reasons involving heinous crimes, we note that the main objection to the
or officers, that their perpetrators must not be allowed to cause further death penalty bill revolved around the persistent demand of the
destruction and damage to society. abolitionists for a statement of the reason in each and every heinous
crime and statistical proof the such compelling reason actually exists.
We have no doubt, therefore, that insofar as the element of heinousness
is concerned, R.A. No. 7659 has correctly identified crimes warranting We believe, however, that the elements of heinousness and compulsion
the mandatory penalty of death. As to the other crimes in R.A. No. 7659 are inseparable and are, in fact, interspersed with each other. Because
punished by reclusion perpetua to death, they are admittingly no less the subject crimes are either so revolting and debasing as to violate the
abominable than those mandatorily penalized by death. The proper most minimum of the human standards of decency or its effects,
time to determine their heinousness in contemplation of law, is when on repercussions, implications and consequences so destructive,
automatic review, we are called to pass on a death sentence involving destabilizing, debilitating, or aggravating in the context of our socio-
crimes punishable by reclusion perpetua to death under R.A. No. 7659, political and economic agenda as a developing nation, these crimes
with the trial court meting out the death sentence in exercise of judicial must be frustrated, curtailed and altogether eradicated. There can be
discretion. This is not to say, however, that the aggravating no ifs or buts in the face of evil, and we cannot afford to wait until we rub
circumstances under the Revised Penal Code need be additionally elbows with it before grasping it by the ears and thrashing it to its
alleged as establishing the heinousness of the crime for the trial court to demission.
validly impose the death penalty in the crimes under R.A. No. 7659
The abolitionists in congress insisted that all criminal reforms first be
which are punished with the flexible penalty of reclusion perpetua to
pursued and implemented before the death penalty be re-imposed in
death.
case such reforms prove unsuccessful. They claimed that the only
In the first place, the 1987 Constitution did not amend or repeal the compelling reason contemplated of by the constitution is that nothing
provisions of the Revised Penal Code relating to aggravating else but the death penalty is left for the government to resort to that could
circumstances. Secondly, R.A. No. 7659, while it specifies check the chaos and the destruction that is being caused by unbridled
circumstances that generally qualify a crime provided therein to be criminality. Three of our colleagues, are of the opinion that the
punished by the maximum penalty of death, neither amends nor repeals compelling reason required by the constitution is that there occurred a
the aggravating circumstances under the Revised Penal Code. Thus, dramatic and significant change in the socio-cultural milieu after the
construing R.A. No. 7659 in parimateria with the Revised Penal Code, suspension of the death penalty on February 2, 1987 such as an
death may be imposed when (1) aggravating circumstances attend the unprecedented rise in the incidence of criminality. Such are, however,
commission of the crime as to make operative the provision of the interpretations only of the phrase "compelling reasons" but not of the
Revised Penal Code regarding the imposition of the maximum penalty; conjunctive phrase "compelling reasons involving heinous crimes". The
and (2) other circumstances attend the commission of the crime which imposition of the requirement that there be a rise in the incidence of
indubitably characterize the same as heinous in contemplation of R.A. criminality because of the suspension of the death penalty, moreover, is
No. 7659 that justify the imposition of the death, albeit the imposable an unfair and misplaced demand, for what it amounts to, in fact, is a
penalty is reclusion perpetua to death. Without difficulty, we understand requirement that the death penalty first proves itself to be a truly
the rationale for the guided discretion granted in the trial court to cognize deterrent factor in criminal behavior. If there was a dramatically higher
circumstances that characterize the commission of the crime as incidence of criminality during the time that the death penalty was
heinous. Certainly there is an infinity of circumstances that may attend suspended, that would have proven that the death penalty was indeed
the commission of a crime to the same extent that there is no telling the a deterrent during the years before its suspension. Suffice it to say that
evil that man is capable of. The legislature cannot and need not foresee the constitution in the first place did not require that the death penalty be
and inscribe in law each and every loathsome act man is capable of. It first proven to be a deterrent; what it requires is that there be compelling
is sufficient thus that R.A. 7659 provides the test and yardstick for the reasons involving heinous crimes.
determination of the legal situation warranting the imposition of the
Article III, Section 19 (1) of the 1987 Constitution simply states that
supreme penalty of death. Needless to say, we are not unaware of the
congress, for compelling reasons involving heinous crimes, may re-
ever existing danger of abuse of discretion on the part of the trial court
impose the death penalty. Nothing in the said provision imposes a
in meting out the death sentence. Precisely to reduce to nil the
requirement that for a death penalty bill to be valid, a positive
possibility of executing an innocent man or one criminal but not
manifestation in the form of a higher incidence of crime should first be
heinously criminal, R.A. 7659 is replete with both procedural and
perceived and statistically proven following the suspension of the death
substantive safeguards that ensure only the correct application of the
penalty. Neither does the said provision require that the death penalty
mandate of R.A. No. 7659.
be resorted to as a last recourse when all other criminal reforms have
failed to abate criminality in society. It is immaterial and irrelevant that
R.A. No. 7659 cites that there has been an "alarming upsurge of such death penalty statutes in Furman, it did so because the discretion which
crimes", for the same was never intended by said law to be the yardstick these statutes vested in the trial judges and sentencing juries was
to determine the existence of compelling reasons involving heinous uncontrolled and without any parameters, guidelines, or standards
crimes. Fittingly, thus, what R.A. No. 7659 states is that "the Congress, intended to lessen, if not altogether eliminate, the intervention of
in the interest of justice, public order and rule of law, and the need to personal biases, prejudices and discriminatory acts on the part of the
rationalize and harmonize the penal sanctions for heinous crimes, finds trial judges and sentencing juries.
compelling reasons to impose the death penalty for said crimes."
Consequently, in the aftermath of Furman, when most of the states re-
We now proceed to answer accused-appellant's other ground for enacted their death penalty statutes now bearing the procedural checks
attacking the constitutionality of R.A. No. 7659, i.e., that the death that were required by the U.S. Supreme Court, said court affirmed the
penalty imposed in rape is violative of the constitutional proscription constitutionality of the new death penalty statutes in the cases of Gregg
against cruel, degrading or inhuman punishment. v. Georgia,[42] Jurek v. Texas,[43] and Profitt v. Florida.[44]
Accused-appellant first claims that the death penalty is per se a cruel, Next, accused-appellant asseverates that the death penalty is a cruel,
degrading or inhuman punishment as ruled by the United States (U.S.) inhuman or degrading punishment for the crime of rape mainly because
Supreme Court in Furman v. Georgia.[41] To state, however, that the the latter, unlike murder, does not involve the taking of life. In support
U.S. Supreme Court, in Furman, categorically ruled that the death of his contention, accused-appellant largely relies on the ruling of the
penalty is a cruel, degrading or inhuman punishment, is misleading and U.S. Supreme Court in Coker v. Georgia.[45]
inaccurate.
In Coker, the U.S. Supreme Court ruled as follows:
The issue in Furman was not so much death penalty itself but the
"x x x It is now settled that the death penalty is not invariably cruel and
arbitrariness pervading the procedures by which the death penalty was
unusual punishment within the meaning of the Eighth Amendment; it is
imposed on the accused by the sentencing jury. Thus, the defense
not inherently barbaric or an unacceptable mode of punishment for
theory in Furman centered not so much on the nature of the death
crime; neither is it always disproportionate to the crime for which it is
penalty as a criminal sanction but on the discrimination against the black
imposed. It is also established that imposing capital punishment, at
accused who is meted out the death penalty by a white jury that is given
least for murder, in accordance with the procedures provided under the
the unconditional discretion to determine whether or not to impose the
Georgia statutes saves the sentence from the infirmities which led the
death penalty. In fact, the long road of the American abolitionist
Court to invalidate the prior Georgia capital punishment statute in
movement leading to the landmark case of Furman was trekked by
Furman v. Georgia x x x.
American civil rights advocates zealously fighting against racial
discrimination. Thus, the U.S. Supreme Court stated in Furman: xxx
"We cannot say from facts disclosed in these records that these In Gregg [v. Georgia] x x x the Court's judgment was that the death
defendants were sentenced to death because they were black. Yet our penalty for deliberate murder was neither the purposeless imposition of
task is not restricted to an effort to divine what motives impelled these severe punishment nor a punishment grossly disproportionate to the
death penalties. Rather, we deal with a system of law and of justice that crime. But the Court reserved the question of the constitutionality of the
leaves to the uncontrolled discretion of judges or juries the determination death penalty when imposed for other crimes. x x x
whether defendants committing these crimes should die x x x.
That question, with respect to rape of an adult woman, is now before us.
xxx
xxx
In a Nation committed to equal protection of the laws there is no
permissible 'caste' aspect of law enforcement. Yet we know that the x x x [T]he public judgment with respect to rape, as reflected in the
discretion of judges and juries in imposing the death penalty enables the statutes providing the punishment for that crime, has been dramatically
penalty to be selectively applied, feeding prejudices against the accused different. In reviving death penalty laws to satisfy Furman's mandate,
if he is poor and despised x x x. none of the States that had not previously authorized death for rape
chose to include rape among capital felonies. Of the 16 States in which
xxx rape had been a capital offense, only three provided the death penalty
for rape of an adult woman in their revised statutes -- Georgia, North
Thus, these discretionary statutes are unconstitutional in their
Carolina. and Louisiana. In the latter two States, the death penalty was
operation. They are pregnant with discrimination and discrimination is
mandatory for those found guilty, and those laws were invalidated by
an ingredient not compatible with the idea of equal protection of the laws
Woodson and Roberts. When Louisiana and North Carolina,
that is implicit in the ban on 'cruel and unusual' punishments."
respondent to those decisions, again revised their capital punishment
Furman, thus, did not outlaw the death penalty because it was cruel and laws, they reenacted the death penalty for murder but not for rape; none
unusual per se. While the U.S. Supreme Court nullified all discretionary of the seven other legislatures that to our knowledge have amended or
replaced their death penalty statutes since July 2, 1976, including four dastardly contemptuous violation of a woman's spiritual integrity,
States (in addition to Louisiana and North Carolina) that had authorized physical privacy, and psychological balance, does not involve the taking
the death sentence for rape prior to 1972 and had reacted to Furman of life.
with mandatory statutes, included rape among the crimes for which
Anent the first ground, we fail to see how this could have any bearing on
death was an authorized punishment.
the Philippine experience and in the context of our own culture.
xxx
Anent the second ground, we disagree with the court's predicate that the
It should be noted that Florida, Mississippi, and Tennessee also gauge of whether or not a crime warrants the death penalty or not, is the
authorized the death penalty in some rape cases, but only where the attendance of the circumstance of death on the part of the victim. Such
victim was a child, and the rapist an adult, the Tennessee statute has a premise is in fact an ennobling of the biblical notion of retributive justice
since been invalidated because the death sentence was mandatory. x x of "an eye for an eye, a tooth for a tooth". We have already
x The upshot is that Georgia is the sole jurisdiction in the United States demonstrated earlier in our discussion of heinous crimes that the
at the present time that authorizes a sentence of death when the rape forfeiture of life simply because life was taken, never was a defining
victim is an adult woman, and only two other jurisdictions provide capital essence of the death penalty in the context of our legal history and
punishment when the victim is a child cultural experience; rather, the death penalty is imposed in heinous
crimes because the perpetrators thereof have committed unforgivably
The current judgment with respect to the death penalty for rape is not
execrable acts that have so deeply dehumanized a person or criminal
wholly unanimous among state legislatures, but it obviously weighs very
acts with severely destructive effects on the national efforts to lift the
heavily on the side of rejecting capital punishment as a suitable penalty
masses from abject poverty through organized governmental strategies
for raping an adult woman.
based on a disciplined and honest citizenry, and because they have so
x x x [T]he legislative rejection of capital punishment for rape strongly caused irreparable and substantial injury to both their victim and the
confirms our own judgment, which is that death is indeed a society and a repetition of their acts would pose actual threat to the
disproportionate penalty for the crime of raping an adult woman. safety of individuals and the survival of government, they must be
permanently prevented from doing so. At any rate, this court has no
We do not discount the seriousness of rape as a crime. It is highly doubts as to the innate heinousness of the crime of rape, as we have
reprehensible, both in a moral sense and in its almost total contempt for held in the case of People v. Cristobal: [46]
the personal integrity and autonomy of the female victim and for the
latter's privilege of choosing those with whom intimate relationships are "Rape is the forcible violation of the sexual intimacy of another person.
to be established. Short of homicide, it is the 'ultimate violation of self.' It does injury to justice and charity. Rape deeply wounds the respect,
It is also a violent crime because it normally involves force, or the threat freedom, and physical and moral integrity to which every person has a
of force or intimidation, to over come the will and the capacity of the right. It causes grave damage that can mark the victim for life. It is
victim to resist. Rape is very often accompanied by physical injury to always an intrinsically evil act xxx an outrage upon decency and dignity
the female and can also inflict mental and psychological that hurts not only the victim but the society itself."
damage. Because it undermines the community's sense of security,
We are not unaware that for all the legal posturings we have so essayed
there is public injury as well.
here, at the heart of the issue of capital punishment is the wistful,
Rape is without doubt deserving of serious punishment; but in terms of sentimental life-and-death question to which all of us, without thinking,
moral depravity and of the injury to the person and to the public, it does would answer, "life, of course, over death". But dealing with the
not compare with murder, which does involve the unjustified taking of fundamental question of death provides a context for struggling with
human life. Although it may be accompanied by another crime, rape by even more basic questions, for to grapple with the meaning of death is,
definition does not include the death of or even the serious injury to in an indirect way, to ask the meaning of life. Otherwise put, to ask what
another person. The murderer kills; the rapist, if no more than that, does the rights are of the dying is to ask what the rights are of the living.
not. Life is over for the victim of the murderer; for the rape victim, life
"Capital punishment ought not to be abolished solely because it is
may not be nearly so happy as it was, but it is not over and normally is
substantially repulsive, if infinitely less repulsive than the acts which
not beyond repair. We have the abiding conviction that the death
invoke it. Yet the mounting zeal for its abolition seems to arise from a
penalty, which 'is unique in its severity and irrevocability' x x x is an
sentimentalized hyperfastidiousness that seeks to expunge from the
excessive penalty for the rapist who, as such, does not take human life."
society all that appears harsh and suppressive. If we are to preserve
The U.S. Supreme Court based its foregoing ruling on two grounds: first, the humane society we will have to retain sufficient strength of character
that the public has manifested its rejection of the death penalty as a and will to do the unpleasant in order that tranquillity and civility may rule
proper punishment for the crime of rape through the willful omission by comprehensively. It seems very likely that capital punishment is a x x x
the state legislatures to include rape in their new death penalty statutes necessary, if limited factor in that maintenance of social tranquillity and
in the aftermath of Furman; and second, that rape, while concededly a ought to be retained on this ground. To do otherwise is to indulge in the
luxury of permitting a sense of false delicacy to reign over the necessity [21] 155 SCRA 327 [1987].
of social survival." [47]
[22] Id., p. 335.
WHEREFORE, in view of all the foregoing, the Motion for
[23] 155 SCRA 113 [1987].
Reconsideration and the Supplemental Motion for Reconsideration are
hereby DENIED[48] for LACK OF MERIT. [24] 156 SCRA 242 [1987].
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, [26] 170 SCRA 107 [1989].
Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr.,
Panganiban, and Torres, Jr., JJ., concur. [27] Id., p. 121.
[2] See Amigo v. Court of Appeals, 253 SCRA 382, 390 [1996]; De
[32] Journal, February 10 & 11, 1993, Vol. II, p.1223.
Leon v. Court of Appeals, 245 SCRA 166, 172 [1995].
[33] Journal, Senate, March 22, 1993, Vol. II, pp.1574-1575.
[3] RTC Decision, p. 3; Rollo, p. 19.
[34] Record, Senate, May 11, 1993, Vol. IV, pp. 500-501.
[4] G.R. No. 108871 promulgated on November 19, 1996.
[35] Journal, Senate, February 2, 1993, Vol. II, p. 1161.
[5] People v. Pimentel, 118 SCRA 695 [1982]; citing
People v. Manigbas, 109 Phil. 469 [1960]. [36] Record, House of Representatives, Vol. III, November 9, 1992,
pp.417-418.
[6] Greenhills Airconditioning and Services, Inc. v. National Labor
Relations Commission, 245 SCRA 384, 389 [1995]; Arambulo v. Court [37] Record, House of Representatives, Vol. III, November 9, 1992,
of Appeals, 226 SCRA 589, 601 [1993]; Que v. Court of Appeals, 101 pp.419-20.
SCRA 13 [1980].
[38] Record, House of Representatives, Vol. V, February 23, 1993, p.
[7] Suarez v. Court of Appeals, 220 SCRA 274, 279-280 [1993]. 98.
[8] 81 Phil. 741 [1948]. [39] People v. Simon, 234 SCRA 555 [1994]; People v. Timple, 237
SCRA 52 [1994].
[9] 88 Phil. 36 [1951].
[40] 251 SCRA 293 [1995].
[10] 115 SCRA 688 [1982].
[41] 408 US 238, 33 L Ed 2d 346, 92 S Ct. 2726.
[11] 133 SCRA 1 [1984].
[42] 428 US 153 49 L Ed 2d 859, 96 S Ct 2909.
[12] 147 SCRA 204 [1987].
[43] 428 US 262, 49 L Ed 2d 929, 96 S Ct 2950.
[13] 81 Phil. 741, 747 [1948].
[44] 428 US 242, 49 L Ed 2d 913, 96 S Ct 2960.
[14] 88 Phil. 36, 43 [1951].
[45] 433 US 584, 53 L Ed 2d 982, 97 S Ct 286.
[15] 249 SCRA 246, 253 [1995].
[46] G.R. No. 116279, promulgated on January 29, 1996.
[16] Record, CONCOM, July 17, 1986, Vol. I, p.676.
[47] Donald Atwell Zoll, "A Wistful Goodbye to Capital
[17] Id., p. 678.
Punishment," National Review, December 3, 1971, pp.1351-1354.
[19] Record, CONCOM, July 17, 1986, Vol. I, p.712. unconstitutional insofar as it reimposes the death penalty. Two of them
wrote Separate Opinions, which are attached as annexes hereto,
[20] Id., p. 744. without indicating the names of the authors consistent with the Court's
policy that, in death cases, ponentes of opinions whether majority or
minority are not to be indicated.
EN BANC
DECISION
PERALTA, J.:
petitioner, the latter promised the former that he will pay the value of the circumstance/s to vary the penalty imposable;
Thus, an Information was filed against petitioner for the crime of estafa, deprivation of liberty consisting of an imprisonment under the
which reads as follows: Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2)
MONTHS of Prision Correccional in its medium period AS MINIMUM, to
That on or about the fifth (5th) day of July 1991, in the City of Olongapo, FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of Reclusion
Philippines, and within the jurisdiction of this Honorable Court, the Temporal in its minimum period AS MAXIMUM; to indemnify private
above-named accused, after having received from one Danilo Tangcoy, complainant Danilo Tangcoy the amount of P98,000.00 as actual
one (1) men's diamond ring, 18k, worth P45,000.00; one (1) three-baht damages, and to pay the costs of suit.
men's bracelet, 22k, worth P25,000.00; one (1) two-baht ladies'
bracelet, 22k, worth P12,000.00, or in the total amount of Ninety-Eight SO ORDERED.
Petitioner and private complainant were collecting agents of Antonio B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
Balajadia, who is engaged in the financing business of extending loans THE LOWER COURT'S FINDING THAT THE CRIMINAL
to Base employees. For every collection made, they earn a commission. INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE
Petitioner denied having transacted any business with private ALTHOUGH THE SAME DID NOT CHARGE THE OFFENSE UNDER
complainant. ARTICLE 315 (1) (B) OF THE REVISED PENAL CODE IN THAT -
1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE show that petitioner never objected to the admissibility of the said
SUBJECT [PIECES OF] JEWELRY SHOULD BE RETURNED, IF evidence at the time it was identified, marked and testified upon in court
UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD; by private complainant. The CA also correctly pointed out that petitioner
also failed to raise an objection in his Comment to the prosecution's
2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN
formal offer of evidence and even admitted having signed the said
THE INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY
receipt. The established doctrine is that when a party failed to interpose
DIFFERENT FROM THE ONE TESTIFIED TO BY THE PRIVATE
a timely objection to evidence at the time they were offered in evidence,
COMPLAINANT WHICH WAS 02 MAY 1991;
such objection shall be considered as waived.5
C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
Another procedural issue raised is, as claimed by petitioner, the formally
THE LOWER COURT'S FINDING THAT DEMAND TO RETURN THE
defective Information filed against him. He contends that the Information
SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE
does not contain the period when the pieces of jewelry were supposed
PROCEEDS, IF SOLD AN ELEMENT OF THE OFFENSE WAS
to be returned and that the date when the crime occurred was different
PROVED;
from the one testified to by private complainant. This argument is
D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING untenable. The CA did not err in finding that the Information was
THE LOWER COURT'S FINDING THAT THE PROSECUTION'S CASE substantially complete and in reiterating that objections as to the matters
WAS PROVEN BEYOND REASONABLE DOUBT ALTHOUGH - of form and substance in the Information cannot be made for the first
time on appeal. It is true that the gravamen of the crime of estafa under
1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS Article 315, paragraph 1, subparagraph (b) of the RPC is the
OF THE INCIDENT; appropriation or conversion of money or property received to the
prejudice of the owner6 and that the time of occurrence is not a material
2. THE VERSION OF THE PETITIONER ACCUSED IS MORE
ingredient of the crime, hence, the exclusion of the period and the wrong
STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH HUMAN
date of the occurrence of the crime, as reflected in the Information, do
EXPERIENCE;
not make the latter fatally defective. The CA ruled:
3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND
x x x An information is legally viable as long as it distinctly states the
APPLIED TO THIS CASE;
statutory designation of the offense and the acts or omissions
4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE constitutive thereof. Then Section 6, Rule 110 of the Rules of Court
STATE. provides that a complaint or information is sufficient if it states the name
of the accused;
In its Comment dated May 5, 2008, the Office of the Solicitor General
(OSG) stated the following counter-arguments: the designation of the offense by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended
The exhibits were properly admitted inasmuch as petitioner failed to
party; the approximate time of the commission of the offense, and the
object to their admissibility.
place wherein the offense was committed. In the case at bar, a reading
The information was not defective inasmuch as it sufficiently established of the subject Information shows compliance with the foregoing rule.
the designation of the offense and the acts complained of. That the time of the commission of the offense was stated as " on or
about the fifth (5th) day of July, 1991" is not likewise fatal to the
The prosecution sufficiently established all the elements of the crime
prosecution's cause considering that Section 11 of the same Rule
charged.
requires a statement of the precise time only when the same is a
This Court finds the present petition devoid of any merit. material ingredient of the offense. The gravamen of the crime of estafa
under Article 315, paragraph 1 (b) of the Revised Penal Code (RPC) is
The factual findings of the appellate court generally are conclusive, and the appropriation or conversion of money or property received to the
carry even more weight when said court affirms the findings of the trial prejudice of the offender. Thus, aside from the fact that the date of the
court, absent any showing that the findings are totally devoid of support commission thereof is not an essential element of the crime herein
in the records, or that they are so glaringly erroneous as to constitute charged, the failure of the prosecution to specify the exact date does not
grave abuse of discretion.4 Petitioner is of the opinion that the CA erred render the Information ipso facto defective. Moreover, the said date is
in affirming the factual findings of the trial court. He now comes to this also near the due date within which accused-appellant should have
Court raising both procedural and substantive issues. delivered the proceeds or returned the said [pieces of jewelry] as
testified upon by Tangkoy, hence, there was sufficient compliance with
According to petitioner, the CA erred in affirming the ruling of the trial
the rules. Accused-appellant, therefore, cannot now be allowed to claim
court, admitting in evidence a receipt dated May 2, 1991 marked as
that he was not properly apprised of the charges proferred against him.7
Exhibit "A" and its submarkings, although the same was merely a
photocopy, thus, violating the best evidence rule. However, the records
It must be remembered that petitioner was convicted of the crime of a No, sir.
Estafa under Article 315, paragraph 1 (b) of the RPC, which reads:
q Were you able to talk to him since 5 July 1991?
ART. 315. Swindling (estafa). Any person who shall defraud another
a I talked to him, sir.
by any of the means mentioned hereinbelow.
q How many times?
1. With unfaithfulness or abuse of confidence, namely:
The elements of estafa with abuse of confidence are as follows: (a) that
q Up to this time that you were here, were you able to collect from him
money, goods or other personal property is received by the offender in
partially or full?
trust, or on commission, or for administration, or under any other
obligation involving the duty to make delivery of, or to return the same; a No, sir.9
(b) that there be misappropriation or conversion of such money or
No specific type of proof is required to show that there was
property by the offender or denial on his part of such receipt; (c) that
demand.10 Demand need not even be formal; it may be verbal.11 The
such misappropriation or conversion or denial is to the prejudice of
specific word "demand" need not even be used to show that it has
another; and (d) that there is a demand made by the offended party on
indeed been made upon the person charged, since even a mere query
the offender.8
as to the whereabouts of the money [in this case, property], would be
Petitioner argues that the last element, which is, that there is a demand tantamount to a demand.12 As expounded in Asejo v. People:13
by the offended party on the offender, was not proved. This Court
With regard to the necessity of demand, we agree with the CA that
disagrees. In his testimony, private complainant narrated how he was
demand under this kind of estafa need not be formal or written. The
able to locate petitioner after almost two (2) months from the time he
appellate court observed that the law is silent with regard to the form of
gave the pieces of jewelry and asked petitioner about the same items
demand in estafa under Art. 315 1(b), thus:
with the latter promising to pay them. Thus:
When the law does not qualify, We should not qualify. Should a written
PROS. MARTINEZ
demand be necessary, the law would have stated so. Otherwise, the
q Now, Mr. Witness, this was executed on 2 May 1991, and this word "demand" should be interpreted in its general meaning as to
transaction could have been finished on 5 July 1991, the question is include both written and oral demand. Thus, the failure of the
what happens (sic) when the deadline came? prosecution to present a written demand as evidence is not fatal.
a I went looking for him, sir. In Tubb v. People, where the complainant merely verbally inquired about
the money entrusted to the accused, we held that the query was
q For whom?
tantamount to a demand, thus:
q Were you able to look (sic) for him? the existence of the crime of embezzlement. It so happens only that
failure to account, upon demand for funds or property held in trust, is
a I looked for him for a week, sir. circumstantial evidence of misappropriation. The same way, however,
be established by other proof, such as that introduced in the case at
q Did you know his residence?
bar.14
a Yes, sir.
In view of the foregoing and based on the records, the prosecution was
q Did you go there? able to prove the existence of all the elements of the crime. Private
complainant gave petitioner the pieces of jewelry in trust, or on
a Yes, sir.
commission basis, as shown in the receipt dated May 2, 1991 with an
q Did you find him? obligation to sell or return the same within sixty (60) days, if unsold.
There was misappropriation when petitioner failed to remit the proceeds it may deem proper to repress and which is not punishable by law, it
of those pieces of jewelry sold, or if no sale took place, failed to return shall render the proper decision, and shall report to the Chief Executive,
the same pieces of jewelry within or after the agreed period despite through the Department of Justice, the reasons which induce the court
demand from the private complainant, to the prejudice of the latter. to believe that said act should be made the subject of penal legislation.
Anent the credibility of the prosecution's sole witness, which is In the same way, the court shall submit to the Chief Executive, through
questioned by petitioner, the same is unmeritorious. Settled is the rule the Department of Justice, such statement as may be deemed proper,
that in assessing the credibility of witnesses, this Court gives great without suspending the execution of the sentence, when a strict
respect to the evaluation of the trial court for it had the unique enforcement of the provisions of this Code would result in the imposition
opportunity to observe the demeanor of witnesses and their deportment of a clearly excessive penalty, taking into consideration the degree of
on the witness stand, an opportunity denied the appellate courts, which malice and the injury caused by the offense.18
merely rely on the records of the case.15 The assessment by the trial
The first paragraph of the above provision clearly states that for acts
court is even conclusive and binding if not tainted with arbitrariness or
bourne out of a case which is not punishable by law and the court finds
oversight of some fact or circumstance of weight and influence,
it proper to repress, the remedy is to render the proper decision and
especially when such finding is affirmed by the CA.16 Truth is
thereafter, report to the Chief Executive, through the Department of
established not by the number of witnesses, but by the quality of their
Justice, the reasons why the same act should be the subject of penal
testimonies, for in determining the value and credibility of evidence, the
legislation. The premise here is that a deplorable act is present but is
witnesses are to be weighed not numbered.17
not the subject of any penal legislation, thus, the court is tasked to inform
As regards the penalty, while this Court's Third Division was deliberating the Chief Executive of the need to make that act punishable by law
on this case, the question of the continued validity of imposing on through legislation. The second paragraph is similar to the first except
persons convicted of crimes involving property came up. The legislature for the situation wherein the act is already punishable by law but the
apparently pegged these penalties to the value of the money and corresponding penalty is deemed by the court as excessive. The remedy
property in 1930 when it enacted the Revised Penal Code. Since the therefore, as in the first paragraph is not to suspend the execution of the
members of the division reached no unanimity on this question and since sentence but to submit to the Chief Executive the reasons why the court
the issues are of first impression, they decided to refer the case to the considers the said penalty to be non-commensurate with the act
Court en banc for consideration and resolution. Thus, several amici committed. Again, the court is tasked to inform the Chief Executive, this
curiae were invited at the behest of the Court to give their academic time, of the need for a legislation to provide the proper penalty.
opinions on the matter. Among those that graciously complied were
In his book, Commentaries on the Revised Penal Code,19 Guillermo B.
Dean Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor
Guevara opined that in Article 5, the duty of the court is merely to report
Alfredo F. Tadiar, the Senate President, and the Speaker of the House
to the Chief Executive, with a recommendation for an amendment or
of Representatives. The parties were later heard on oral arguments
modification of the legal provisions which it believes to be harsh. Thus:
before the Court en banc, with Atty. Mario L. Bautista appearing as
counsel de oficio of the petitioner. This provision is based under the legal maxim "nullum crimen, nulla
poena sige lege," that is, that there can exist no punishable act except
After a thorough consideration of the arguments presented on the
those previously and specifically provided for by penal statute.
matter, this Court finds the following:
No matter how reprehensible an act is, if the law-making body does not
There seems to be a perceived injustice brought about by the range of
deem it necessary to prohibit its perpetration with penal sanction, the
penalties that the courts continue to impose on crimes against property
Court of justice will be entirely powerless to punish such act.
committed today, based on the amount of damage measured by the
value of money eighty years ago in 1932. However, this Court cannot Under the provisions of this article the Court cannot suspend the
modify the said range of penalties because that would constitute judicial execution of a sentence on the ground that the strict enforcement of the
legislation. What the legislature's perceived failure in amending the provisions of this Code would cause excessive or harsh penalty. All that
penalties provided for in the said crimes cannot be remedied through the Court could do in such eventuality is to report the matter to the Chief
this Court's decisions, as that would be encroaching upon the power of Executive with a recommendation for an amendment or modification of
another branch of the government. This, however, does not render the the legal provisions which it believes to be harsh.20
whole situation without any remedy. It can be appropriately presumed
that the framers of the Revised Penal Code (RPC) had anticipated this Anent the non-suspension of the execution of the sentence, retired Chief
matter by including Article 5, which reads: Justice Ramon C. Aquino and retired Associate Justice Carolina C.
Grio-Aquino, in their book, The Revised Penal Code,21 echoed the
ART. 5. Duty of the court in connection with acts which should be above-cited commentary, thus:
repressed but which are not covered by the law, and in cases of
excessive penalties. - Whenever a court has knowledge of any act which
The second paragraph of Art. 5 is an application of the humanitarian 3. The penalty of prision correccional in its minimum and medium
principle that justice must be tempered with mercy. Generally, the courts periods, if the value of the property stolen is more than 200 pesos but
have nothing to do with the wisdom or justness of the penalties fixed by does not exceed 6,000 pesos.
law. "Whether or not the penalties prescribed by law upon conviction of
4. Arresto mayor in its medium period to prision correccional in its
violations of particular statutes are too severe or are not severe enough,
minimum period, if the value of the property stolen is over 50 pesos but
are questions as to which commentators on the law may fairly differ; but
does not exceed 200 pesos.
it is the duty of the courts to enforce the will of the legislator in all cases
unless it clearly appears that a given penalty falls within the prohibited 5. Arresto mayor to its full extent, if such value is over 5 pesos but does
class of excessive fines or cruel and unusual punishment." A petition for not exceed 50 pesos.
clemency should be addressed to the Chief Executive.22
6. Arresto mayor in its minimum and medium periods, if such value does
There is an opinion that the penalties provided for in crimes against not exceed 5 pesos.
property be based on the current inflation rate or at the ratio of P1.00 is
equal to P100.00 . However, it would be dangerous as this would result 7. Arresto menor or a fine not exceeding 200 pesos, if the theft is
in uncertainties, as opposed to the definite imposition of the penalties. It committed under the circumstances enumerated in paragraph 3 of the
must be remembered that the economy fluctuates and if the proposed next preceding article and the value of the thing stolen does not exceed
imposition of the penalties in crimes against property be adopted, the 5 pesos. If such value exceeds said amount, the provision of any of the
penalties will not cease to change, thus, making the RPC, a self- five preceding subdivisions shall be made applicable.
amending law. Had the framers of the RPC intended that to be so, it
8. Arresto menor in its minimum period or a fine not exceeding 50 pesos,
should have provided the same, instead, it included the earlier cited
when the value of the thing stolen is not over 5 pesos, and the offender
Article 5 as a remedy. It is also improper to presume why the present
shall have acted under the impulse of hunger, poverty, or the difficulty
legislature has not made any moves to amend the subject penalties in
of earning a livelihood for the support of himself or his family.
order to conform with the present times. For all we know, the legislature
intends to retain the same penalties in order to deter the further In a case wherein the value of the thing stolen is P6,000.00, the above-
commission of those punishable acts which have increased provision states that the penalty is prision correccional in its minimum
tremendously through the years. In fact, in recent moves of the and medium periods (6 months and 1 day to 4 years and 2 months).
legislature, it is apparent that it aims to broaden the coverage of those Applying the proposal, if the value of the thing stolen is P6,000.00, the
who violate penal laws. In the crime of Plunder, from its original minimum penalty is imprisonment of arresto mayor in its medium period to prision
amount of P100,000,000.00 plundered, the legislature lowered it correccional minimum period (2 months and 1 day to 2 years and 4
to P50,000,000.00. In the same way, the legislature lowered the months). It would seem that under the present law, the penalty imposed
threshold amount upon which the Anti-Money Laundering Act may is almost the same as the penalty proposed. In fact, after the application
apply, from P1,000,000.00 to P500,000.00. of the Indeterminate Sentence Law under the existing law, the minimum
penalty is still lowered by one degree; hence, the minimum penalty is
It is also worth noting that in the crimes of Theft and Estafa, the present
arresto mayor in its medium period to maximum period (2 months and 1
penalties do not seem to be excessive compared to the proposed
day to 6 months), making the offender qualified for pardon or parole after
imposition of their corresponding penalties. In Theft, the provisions state
serving the said minimum period and may even apply for probation.
that:
Moreover, under the proposal, the minimum penalty after applying the
Art. 309. Penalties. Any person guilty of theft shall be punished by: Indeterminate Sentence Law is arresto menor in its maximum period to
arresto mayor in its minimum period (21 days to 2 months) is not too far
1. The penalty of prision mayor in its minimum and medium periods, if from the minimum period under the existing law. Thus, it would seem
the value of the thing stolen is more than 12,000 pesos but does not that the present penalty imposed under the law is not at all excessive.
exceed 22,000 pesos, but if the value of the thing stolen exceeds the The same is also true in the crime of Estafa.23
latter amount the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each additional ten Moreover, if we apply the ratio of 1:100, as suggested to the value of the
thousand pesos, but the total of the penalty which may be imposed shall thing stolen in the crime of Theft and the damage caused in the crime of
not exceed twenty years. In such cases, and in connection with the Estafa, the gap between the minimum and the maximum amounts,
accessory penalties which may be imposed and for the purpose of the which is the basis of determining the proper penalty to be imposed,
other provisions of this Code, the penalty shall be termed prision mayor would be too wide and the penalty imposable would no longer be
or reclusion temporal, as the case may be. commensurate to the act committed and the value of the thing stolen or
the damage caused:
2. The penalty of prision correccional in its medium and maximum
periods, if the value of the thing stolen is more than 6,000 pesos but I. Article 309, or the penalties for the crime of Theft, the value would be
does not exceed 12,000 pesos. modified but the penalties are not changed:
1. P12,000.00 to P22,000.00 will become P1,200,000.00 According to Dean Diokno, the Incremental Penalty Rule (IPR) does not
to P2,200,000.00, punished by prision mayor minimum to prision mayor rest on substantial distinctions as P10,000.00 may have been
medium (6 years and 1 day to 10 years). substantial in the past, but it is not so today, which violates the first
requisite; the IPR was devised so that those who commit estafa involving
2. P6,000.00 to P12,000.00 will become P600,000.00
higher amounts would receive heavier penalties; however, this is no
to P1,200,000.00, punished by prision correccional medium and to
longer achieved, because a person who steals P142,000.00 would
prision correccional maximum (2 years, 4 months and 1 day to 6
receive the same penalty as someone who steals hundreds of millions,
years).24
which violates the second requisite; and, the IPR violates requisite no.
3. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, 3, considering that the IPR is limited to existing conditions at the time
punishable by prision correccional minimum to prision correccional the law was promulgated, conditions that no longer exist today.
medium (6 months and 1 day to 4 years and 2 months).
Assuming that the Court submits to the argument of Dean Diokno and
4. P50.00 to P200.00 will become P5,000.00 to P20,000.00, punishable declares the incremental penalty in Article 315 unconstitutional for
by arresto mayor medium to prision correccional minimum (2 months violating the equal protection clause, what then is the penalty that should
and 1 day to 2 years and 4 months). be applied in case the amount of the thing subject matter of the crime
exceeds P22,000.00? It seems that the proposition poses more
5. P5.00 to P50.00 will become P500.00 to P5,000.00, punishable by questions than answers, which leads us even more to conclude that the
arresto mayor (1 month and 1 day to 6 months). appropriate remedy is to refer these matters to Congress for them to
exercise their inherent power to legislate laws.
6. P5.00 will become P500.00, punishable by arresto mayor minimum to
arresto mayor medium. Even Dean Diokno was of the opinion that if the Court declares the IPR
unconstitutional, the remedy is to go to Congress. Thus:
x x x x.
xxxx
II. Article 315, or the penalties for the crime of Estafa, the value would
also be modified but the penalties are not changed, as follows: JUSTICE PERALTA:
1st. P12,000.00 to P22,000.00, will become P1,200,000.00 Now, your position is to declare that the incremental penalty should be
to P2,200,000.00, punishable by prision correccional maximum to struck down as unconstitutional because it is absurd.
prision mayor minimum (4 years, 2 months and 1 day to 8 years).25
DEAN DIOKNO:
2nd. P6,000.00 to P12,000.00 will become P600,000.00
to P1,200,000.00, punishable by prision correccional minimum to prision Absurd, it violates equal protection, Your Honor, and cruel and unusual
correccional medium (6 months and 1 day to 4 years and 2 months).26 punishment.
DEAN DIOKNO:
JUSTICE PERALTA:
Yes, Your Honor.
Ah ...
JUSTICE PERALTA:
DEAN DIOKNO:
The amount in excess of Twenty-Two Thousand (P22,000.00) Pesos.
If the Court will say that they can go beyond the literal wording of the
law... Thank you, Dean.
....then.... Dean Diokno also contends that Article 315 of the Revised Penal Code
constitutes cruel and unusual punishment. Citing Solem v.
JUSTICE PERALTA:
Helm,30 Dean Diokno avers that the United States Federal Supreme
Ah, yeah. But if we declare the incremental penalty as unsconstitutional, Court has expanded the application of a similar Constitutional provision
the court cannot fix the amount ... prohibiting cruel and unusual punishment, to the duration of the penalty,
and not just its form. The court therein ruled that three things must be
DEAN DIOKNO:
done to decide whether a sentence is proportional to a specific crime,
No, Your Honor. viz.; (1) Compare the nature and gravity of the offense, and the
harshness of the penalty; (2) Compare the sentences imposed on other
JUSTICE PERALTA: criminals in the same jurisdiction, i.e., whether more serious crimes are
subject to the same penalty or to less serious penalties; and (3)
... as the equivalent of one, as an incremental penalty in excess of
Compare the sentences imposed for commission of the same crime in
Twenty-Two Thousand (P22,000.00) Pesos.
other jurisdictions.
DEAN DIOKNO:
However, the case of Solem v. Helm cannot be applied in the present
No, Your Honor. case, because in Solem what respondent therein deemed cruel was the
penalty imposed by the state court of South Dakota after it took into
JUSTICE PERALTA:
account the latters recidivist statute and not the original penalty for
The Court cannot do that. uttering a "no account" check. Normally, the maximum punishment for
the crime would have been five years imprisonment and a $5,000.00
DEAN DIOKNO:
fine. Nonetheless, respondent was sentenced to life imprisonment
Could not be. without the possibility of parole under South Dakotas recidivist statute
because of his six prior felony convictions. Surely, the factual
JUSTICE PERALTA: antecedents of Solem are different from the present controversy.
The only remedy is to go to Congress... With respect to the crime of Qualified Theft, however, it is true that the
imposable penalty for the offense is high. Nevertheless, the rationale for
DEAN DIOKNO:
the imposition of a higher penalty against a domestic servant is the fact
Yes, Your Honor. that in the commission of the crime, the helper will essentially gravely
abuse the trust and confidence reposed upon her by her employer. After
JUSTICE PERALTA:
accepting and allowing the helper to be a member of the household, thus
... and determine the value or the amount. entrusting upon such person the protection and safekeeping of the
employers loved ones and properties, a subsequent betrayal of that
trust is so repulsive as to warrant the necessity of imposing a higher years)32 under the Anti-Graft Law will now become higher. This should
penalty to deter the commission of such wrongful acts. not be the case, because in the crime of malversation, the public official
takes advantage of his public position to embezzle the fund or property
There are other crimes where the penalty of fine and/or imprisonment
of the government entrusted to him.
are dependent on the subject matter of the crime and which, by adopting
the proposal, may create serious implications. For example, in the crime The said inequity is also apparent in the crime of Robbery with force
of Malversation, the penalty imposed depends on the amount of the upon things (inhabited or uninhabited) where the value of the thing
money malversed by the public official, thus: unlawfully taken and the act of unlawful entry are the bases of the
penalty imposable, and also, in Malicious Mischief, where the penalty of
Art. 217. Malversation of public funds or property; Presumption of
imprisonment or fine is dependent on the cost of the damage caused.
malversation. Any public officer who, by reason of the duties of his
office, is accountable for public funds or property, shall appropriate the In Robbery with force upon things (inhabited or uninhabited), if we
same or shall take or misappropriate or shall consent, through increase the value of the thing unlawfully taken, as proposed in the
abandonment or negligence, shall permit any other person to take such ponencia, the sole basis of the penalty will now be the value of the thing
public funds, or property, wholly or partially, or shall otherwise be guilty unlawfully taken and no longer the element of force employed in entering
of the misappropriation or malversation of such funds or property, shall the premises. It may likewise cause an inequity between the crime of
suffer: Qualified Trespass to Dwelling under Article 280, and this kind of
robbery because the former is punishable by prision correccional in its
1. The penalty of prision correccional in its medium and maximum
medium and maximum periods (2 years, 4 months and 1 day to 6 years)
periods, if the amount involved in the misappropriation or malversation
and a fine not exceeding P1,000.00 (P100,000.00 now if the ratio is
does not exceed two hundred pesos.
1:100) where entrance to the premises is with violence or intimidation,
2. The penalty of prision mayor in its minimum and medium periods, if which is the main justification of the penalty. Whereas in the crime of
the amount involved is more than two hundred pesos but does not Robbery with force upon things, it is punished with a penalty of prision
exceed six thousand pesos. mayor (6 years and 1 day to 12 years) if the intruder is unarmed without
the penalty of Fine despite the fact that it is not merely the illegal entry
3. The penalty of prision mayor in its maximum period to reclusion that is the basis of the penalty but likewise the unlawful taking.
temporal in its minimum period, if the amount involved is more than six
thousand pesos but is less than twelve thousand pesos. Furthermore, in the crime of Other Mischiefs under Article 329, the
highest penalty that can be imposed is arresto mayor in its medium and
4. The penalty of reclusion temporal, in its medium and maximum maximum periods (2 months and 1 day to 6 months) if the value of the
periods, if the amount involved is more than twelve thousand pesos but damage caused exceeds P1,000.00, but under the proposal, the value
is less than twenty-two thousand pesos. If the amount exceeds the latter, of the damage will now become P100,000.00 (1:100), and still
the penalty shall be reclusion temporal in its maximum period to punishable by arresto mayor (1 month and 1 day to 6 months). And, if
reclusion perpetua. the value of the damaged property does not exceed P200.00, the
penalty is arresto menor or a fine of not less than the value of the
In all cases, persons guilty of malversation shall also suffer the penalty
damage caused and not more than P200.00, if the amount involved
of perpetual special disqualification and a fine equal to the amount of the
does not exceed P200.00 or cannot be estimated. Under the
funds malversed or equal to the total value of the property embezzled.
proposal, P200.00 will now become P20,000.00, which simply means
The failure of a public officer to have duly forthcoming any public funds that the fine of P200.00 under the existing law will now
or property with which he is chargeable, upon demand by any duly become P20,000.00. The amount of Fine under this situation will now
authorized officer, shall be prima facie evidence that he has put such become excessive and afflictive in nature despite the fact that the
missing funds or property to personal use. offense is categorized as a light felony penalized with a light penalty
under Article 26 of the RPC.33 Unless we also amend Article 26 of the
The above-provisions contemplate a situation wherein the Government
RPC, there will be grave implications on the penalty of Fine, but
loses money due to the unlawful acts of the offender. Thus, following the
changing the same through Court decision, either expressly or impliedly,
proposal, if the amount malversed is P200.00 (under the existing law),
may not be legally and constitutionally feasible.
the amount now becomes P20,000.00 and the penalty is prision
correccional in its medium and maximum periods (2 years 4 months and There are other crimes against property and swindling in the RPC that
1 day to 6 years). The penalty may not be commensurate to the act of may also be affected by the proposal, such as those that impose
embezzlement of P20,000.00 compared to the acts committed by public imprisonment and/or Fine as a penalty based on the value of the
officials punishable by a special law, i.e., Republic Act No. 3019 or the damage caused, to wit: Article 311 (Theft of the property of the National
Anti-Graft and Corrupt Practices Act, specifically Section 3,31 wherein Library and National Museum), Article 312 (Occupation of real property
the injury caused to the government is not generally defined by any or usurpation of real rights in property), Article 313 (Altering boundaries
monetary amount, the penalty (6 years and 1 month to 15 or landmarks), Article 316 (Other forms of swindling), Article 317
(Swindling a minor), Article 318 (Other deceits), Article 328 (Special revise, amend, distort, remodel, or rewrite the law, or give the law a
cases of malicious mischief) and Article 331 (Destroying or damaging construction which is repugnant to its terms.38 The Court should apply
statues, public monuments or paintings). Other crimes that impose Fine the law in a manner that would give effect to their letter and spirit,
as a penalty will also be affected, such as: Article 213 (Frauds against especially when the law is clear as to its intent and purpose. Succinctly
the public treasury and similar offenses), Article 215 (Prohibited put, the Court should shy away from encroaching upon the primary
Transactions), function of a co-equal branch of the Government; otherwise, this would
lead to an inexcusable breach of the doctrine of separation of powers by
Article 216 (Possession of prohibited interest by a public officer), Article
means of judicial legislation.
218 (Failure of accountable officer to render accounts), Article 219
(Failure of a responsible public officer to render accounts before leaving Moreover, it is to be noted that civil indemnity is, technically, not a
the country). penalty or a Fine; hence, it can be increased by the Court when
appropriate. Article 2206 of the Civil Code provides:
In addition, the proposal will not only affect crimes under the RPC. It will
also affect crimes which are punishable by special penal laws, such as Art. 2206. The amount of damages for death caused by a crime or quasi-
Illegal Logging or Violation of Section 68 of Presidential Decree No. 705, delict shall be at least three thousand pesos, even though there may
as amended.34The law treats cutting, gathering, collecting and have been mitigating circumstances. In addition:
possessing timber or other forest products without license as an offense
(1) The defendant shall be liable for the loss of the earning capacity of
as grave as and equivalent to the felony of qualified theft.35 Under the
the deceased, and the indemnity shall be paid to the heirs of the latter;
law, the offender shall be punished with the penalties imposed under
such indemnity shall in every case be assessed and awarded by the
Articles 309 and 31036 of the Revised Penal Code, which means that
court, unless the deceased on account of permanent physical disability
the penalty imposable for the offense is, again, based on the value of
not caused by the defendant, had no earning capacity at the time of his
the timber or forest products involved in the offense. Now, if we accept
death;
the said proposal in the crime of Theft, will this particular crime of Illegal
Logging be amended also in so far as the penalty is concerned because (2) If the deceased was obliged to give support according to the
the penalty is dependent on Articles 309 and 310 of the RPC? The provisions of Article 291, the recipient who is not an heir called to the
answer is in the negative because the soundness of this particular law decedent's inheritance by the law of testate or intestate succession, may
is not in question. demand support from the person causing the death, for a period not
exceeding five years, the exact duration to be fixed by the court;
With the numerous crimes defined and penalized under the Revised
Penal Code and Special Laws, and other related provisions of these (3) The spouse, legitimate and illegitimate descendants and ascendants
laws affected by the proposal, a thorough study is needed to determine of the deceased may demand moral damages for mental anguish by
its effectivity and necessity. There may be some provisions of the law reason of the death of the deceased.
that should be amended; nevertheless, this Court is in no position to
conclude as to the intentions of the framers of the Revised Penal Code In our jurisdiction, civil indemnity is awarded to the offended party as a
by merely making a study of the applicability of the penalties imposable kind of monetary restitution or compensation to the victim for the
in the present times. Such is not within the competence of the Court but damage or infraction that was done to the latter by the accused, which
of the Legislature which is empowered to conduct public hearings on the in a sense only covers the civil aspect. Precisely, it is civil indemnity.
matter, consult legal luminaries and who, after due proceedings, can Thus, in a crime where a person dies, in addition to the penalty of
decide whether or not to amend or to revise the questioned law or other imprisonment imposed to the offender, the accused is also ordered to
laws, or even create a new legislation which will adopt to the times. pay the victim a sum of money as restitution. Clearly, this award of civil
indemnity due to the death of the victim could not be contemplated as
Admittedly, Congress is aware that there is an urgent need to amend akin to the value of a thing that is unlawfully taken which is the basis in
the Revised Penal Code. During the oral arguments, counsel for the the imposition of the proper penalty in certain crimes. Thus, the
Senate informed the Court that at present, fifty-six (56) bills are now reasoning in increasing the value of civil indemnity awarded in some
pending in the Senate seeking to amend the Revised Penal offense cannot be the same reasoning that would sustain the adoption
Code,37 each one proposing much needed change and updates to of the suggested ratio. Also, it is apparent from Article 2206 that the law
archaic laws that were promulgated decades ago when the political, only imposes a minimum amount for awards of civil indemnity, which
socio-economic, and cultural settings were far different from todays is P3,000.00. The law did not provide for a ceiling. Thus, although the
conditions. minimum amount for the award cannot be changed, increasing the
amount awarded as civil indemnity can be validly modified and
Verily, the primordial duty of the Court is merely to apply the law in such
increased when the present circumstance warrants it. Corollarily, moral
a way that it shall not usurp legislative powers by judicial legislation and
damages under Article 222039 of the Civil Code also does not fix the
that in the course of such application or construction, it should not make
amount of damages that can be awarded. It is discretionary upon the
or supervise legislation, or under the guise of interpretation, modify,
court, depending on the mental anguish or the suffering of the private
offended party. The amount of moral damages can, in relation to civil the like. Fine and imprisonment would not thus be within the
indemnity, be adjusted so long as it does not exceed the award of civil prohibition.44
indemnity.
It takes more than merely being harsh, excessive, out of proportion, or
In addition, some may view the penalty provided by law for the offense severe for a penalty to be obnoxious to the Constitution. The fact that
committed as tantamount to cruel punishment. However, all penalties the punishment authorized by the statute is severe does not make it
are generally harsh, being punitive in nature. Whether or not they are cruel and unusual. Expressed in other terms, it has been held that to
excessive or amount to cruel punishment is a matter that should be left come under the ban, the punishment must be "flagrantly and plainly
to lawmakers. It is the prerogative of the courts to apply the law, oppressive," "wholly disproportionate to the nature of the offense as to
especially when they are clear and not subject to any other interpretation shock the moral sense of the community."45
than that which is plainly written.
Cruel as it may be, as discussed above, it is for the Congress to amend
Similar to the argument of Dean Diokno, one of Justice Antonio Carpios the law and adapt it to our modern time.
opinions is that the incremental penalty provision should be declared
The solution to the present controversy could not be solved by merely
unconstitutional and that the courts should only impose the penalty
adjusting the questioned monetary values to the present value of money
corresponding to the amount of P22,000.00, regardless if the actual
based only on the current inflation rate. There are other factors and
amount involved exceeds P22,000.00. As suggested, however, from
variables that need to be taken into consideration, researched, and
now until the law is properly amended by Congress, all crimes of Estafa
deliberated upon before the said values could be accurately and
will no longer be punished by the appropriate penalty. A conundrum in
properly adjusted. The effects on the society, the injured party, the
the regular course of criminal justice would occur when every accused
accused, its socio-economic impact, and the likes must be painstakingly
convicted of the crime of estafa will be meted penalties different from the
evaluated and weighed upon in order to arrive at a wholistic change that
proper penalty that should be imposed. Such drastic twist in the
all of us believe should be made to our existing law. Dejectedly, the
application of the law has no legal basis and directly runs counter to
Court is ill-equipped, has no resources, and lacks sufficient personnel to
what the law provides.
conduct public hearings and sponsor studies and surveys to validly
It should be noted that the death penalty was reintroduced in the effect these changes in our Revised Penal Code. This function clearly
dispensation of criminal justice by the Ramos Administration by virtue of and appropriately belongs to Congress. Even Professor Tadiar
Republic Act No. 765940 in December 1993. The said law has been concedes to this conclusion, to wit:
questioned before this Court. There is, arguably, no punishment more
xxxx
cruel than that of death. Yet still, from the time the death penalty was re-
imposed until its lifting in June 2006 by Republic Act No. 9346,41 the JUSTICE PERALTA:
Court did not impede the imposition of the death penalty on the ground
that it is a "cruel punishment" within the purview of Section 19 Yeah, Just one question. You are suggesting that in order to determine
(1),42 Article III of the Constitution. Ultimately, it was through an act of the value of Peso you have to take into consideration several factors.
Congress suspending the imposition of the death penalty that led to its
PROFESSOR TADIAR:
non-imposition and not via the intervention of the Court.
Yes.
Even if the imposable penalty amounts to cruel punishment, the Court
cannot declare the provision of the law from which the proper penalty JUSTICE PERALTA:
emanates unconstitutional in the present action. Not only is it violative
Per capita income.
of due process, considering that the State and the concerned parties
were not given the opportunity to comment on the subject matter, it is PROFESSOR TADIAR:
settled that the constitutionality of a statute cannot be attacked
Per capita income.
collaterally because constitutionality issues must be pleaded directly
and not collaterally,43 more so in the present controversy wherein the JUSTICE PERALTA:
issues never touched upon the constitutionality of any of the provisions
of the Revised Penal Code. Consumer price index.
Besides, it has long been held that the prohibition of cruel and unusual PROFESSOR TADIAR:
Yeah. money, but on several other factors. Further, since the law is silent as to
the maximum amount that can be awarded and only pegged the
PROFESSOR TADIAR: minimum sum, increasing the amount granted as civil indemnity is not
proscribed. Thus, it can be adjusted in light of current conditions.
... One (P1.00.00) Peso in 1930.
Now, with regard to the penalty imposed in the present case, the CA
JUSTICE PERALTA:
modified the ruling of the RTC. The RTC imposed the indeterminate
That is legislative in nature. penalty of four (4) years and two (2) months of prision correccional in its
medium period, as minimum, to fourteen (14) years and eight (8) months
PROFESSOR TADIAR:
of reclusion temporal in its minimum period, as maximum. However, the
That is my position that the Supreme Court ... CA imposed the indeterminate penalty of four (4) years and two (2)
months of prision correccional, as minimum, to eight (8) years of prision
JUSTICE PERALTA:
mayor, as maximum, plus one (1) year for each additional P10,000.00,
PROFESSOR TADIAR: In computing the penalty for this type of estafa, this Court's ruling in
Cosme, Jr. v. People48 is highly instructive, thus:
... has no power to utilize the power of judicial review to in order to adjust,
to make the adjustment that is a power that belongs to the legislature. With respect to the imposable penalty, Article 315 of the Revised Penal
Code provides:
JUSTICE PERALTA:
ART. 315 Swindling (estafa). - Any person who shall defraud another by
Thank you, Professor. any of the means mentioned hereinbelow shall be punished by:
PROFESSOR TADIAR: 1st. The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000
Thank you.46
but does not exceed 22,000 pesos, and if such amount exceeds the
Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. latter sum, the penalty provided in this paragraph shall be imposed in its
Sereno echoes the view that the role of the Court is not merely to maximum period, adding one year for each additional 10,000 pesos; but
dispense justice, but also the active duty to prevent injustice. Thus, in the total penalty which may be imposed shall not exceed twenty years.
order to prevent injustice in the present controversy, the Court should In such case, and in connection with the accessory penalties which may
not impose an obsolete penalty pegged eighty three years ago, but be imposed and for the purpose of the other provisions of this Code, the
consider the proposed ratio of 1:100 as simply compensating for penalty shall be termed prision mayor or reclusion temporal, as the case
inflation. Furthermore, the Court has in the past taken into consideration may be.
The penalty prescribed by Article 315 is composed of only two, not three, MODIFICATION that the penalty imposed is the indeterminate penalty
periods, in which case, Article 65 of the same Code requires the division of imprisonment ranging from THREE (3) YEARS, TWO (2) MONTHS
of the time included in the penalty into three equal portions of time and ELEVEN DAYS of prision correccional, as minimum, to FIFTEEN
included in the penalty prescribed, forming one period of each of the (15) YEARS of reclusion temporal as maximum.
three portions. Applying the latter provisions, the maximum, medium and
Pursuant to Article 5 of the Revised Penal Code, let a Copy of this
minimum periods of the penalty prescribed are:
Decision be furnished the President of the Republic of the Philippines,
Maximum - 6 years, 8 months, 21 days to 8 years through the Department of Justice.
Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days Also, let a copy of this Decision be furnished the President of the Senate
and the Speaker of the House of Representatives.
Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49
SO ORDERED.
To compute the maximum period of the prescribed penalty, prisin
correccional maximum to prisin mayor minimum should be divided into DIOSDADO M. PERALTA
three equal portions of time each of which portion shall be deemed to Associate Justice
form one period in accordance with Article 6550 of the RPC.51 In the
WE CONCUR:
present case, the amount involved is P98,000.00, which
exceeds P22,000.00, thus, the maximum penalty imposable should be See Concurring and Dissenting Opinion
within the maximum period of 6 years, 8 months and 21 days to 8 years MARIA LOURDES P.A. SERENO
of prision mayor. Article 315 also states that a period of one year shall Chief Justice
be added to the penalty for every additional P10,000.00 defrauded in
excess of P22,000.00, but in no case shall the total penalty which may
See Dissenting Opinion PRESBITERO J.
be imposed exceed 20 years.
ANTONIO T. CARPIO VELASCO, JR.
Considering that the amount of P98,000.00 is P76,000.00 more than Associate Justice Associate Justice
the P22,000.00 ceiling set by law, then, adding one year for each
additional P10,000.00, the maximum period of 6 years, 8 months and 21
TERESITA J. See: Concurring Opinion
days to 8 years of prision mayor minimum would be increased by 7
LEONARDO-DE CASTRO ARTURO D. BRION
years. Taking the maximum of the prescribed penalty, which is 8 years,
Associate Justice Associate Justice
plus an additional 7 years, the maximum of the indeterminate penalty is
15 years.
Applying the Indeterminate Sentence Law, since the penalty prescribed I take no part due to prior I join the Dissent of J. Abad
by law for the estafa charge against petitioner is prision correccional action in the CA MARIANO C. DEL
maximum to prision mayor minimum, the penalty next lower would then LUCAS P. BERSAMIN* CASTILLO
be prision correccional in its minimum and medium periods. Associate Justice Associate Justice
4 Libuit v. People, 506 Phil. 591, 599 (2005). 3rd. The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period if such amount is over 200 pesos but
5 Blas v. Angeles- Hutalla, 482 Phil. 485, 501 (2004).
does not exceed 6,000 pesos; and
6 Quinto v. People, 365 Phil. 259, 270 (1999).
4th. By arresto mayor in its maximum period, if such amount does not
7 Rollo, p. 37. (Citations omitted.) exceed 200 pesos, provided that in the four cases mentioned, the fraud
be committed by any of the following means:
8 Diaz v. People, 585 Phil. 318, 332 (2008), citing Pangilinan v. Court of
Appeals, 378 Phil. 670, 675 (1999). 1. With unfaithfulness or abuse of confidence, namely:
9 TSN, December 17, 1992, pp. 9-10. (Emphasis supplied.) (a) By altering the substance, quantity, or quality or anything of value
which the offender shall deliver by virtue of an obligation to do so, even
10 Tan v. People, 542 Phil. 188, 201 (2007).
though such obligation be based on an immoral or illegal consideration.
12 Id. money, goods, or any other personal property received by the offender
in trust or on commission, or for administration, or under any other
13 555 Phil. 106 (2007). obligation involving the duty to make delivery of or to return the same,
even though such obligation be totally or partially guaranteed by a bond;
14 Id. at 114. (Citations omitted.)
or by denying having received such money, goods, or other property.
15 Cosme, Jr. v. People, 538 Phil. 52, 66 (2006), citing People v. Garillo,
(c) By taking undue advantage of the signature of the offended party in
446 Phil. 163, 174-175 (2003).
blank, and by writing any document above such signature in blank, to
16 Id., citing Sullon v. People, 500 Phil. 39, 45 (2005) ; People v. Bulan, the prejudice of the offended party or of any third person.
498 Phil. 586, 598 (2005).
2. By means of any of the following false pretenses or fraudulent acts
17 Id. at 67, citing People v. Gaspar, 376 Phil. 762, 779 (1999). executed prior to or simultaneously with the commission of the fraud:
18 Emphasis supplied. (a) By using fictitious name, or falsely pretending to possess power,
influence, qualifications, property, credit, agency, business or imaginary
19 Third Edition, 1940.
transactions, or by means of other similar deceits.
20 Id. at 16. (Emphasis supplied)
(b) By altering the quality, fineness or weight of anything pertaining to
21 1997 Edition. his art or business.
(c) By pretending to have bribed any Government employee, without by competent authority or an offense in connection with the official duties
prejudice to the action for calumny which the offended party may deem of the latter, or allowing himself to be persuaded, induced, or influenced
proper to bring against the offender. In this case, the offender shall be to commit such violation or offense.
punished by the maximum period of the penalty.
(b) Directly or indirectly requesting or receiving any gift, present, share,
(d) [By post-dating a check, or issuing a check in payment of an percentage, or benefit, for himself or for any other person, in connection
obligation when the offender therein were not sufficient to cover the with any contract or transaction between the Government and any other
amount of the check. The failure of the drawer of the check to deposit part, wherein the public officer in his official capacity has to intervene
the amount necessary to cover his check within three (3) days from under the law.
receipt of notice from the bank and/or the payee or holder that said
(c) Directly or indirectly requesting or receiving any gift, present or other
check has been dishonored for lack of insufficiency of funds shall be
pecuniary or material benefit, for himself or for another, from any person
prima facie evidence of deceit constituting false pretense or fraudulent
for whom the public officer, in any manner or capacity, has secured or
act. (As amended by R.A. 4885, approved June 17, 1967.)]
obtained, or will secure or obtain, any Government permit or license, in
(e) By obtaining any food, refreshment or accommodation at a hotel, inn, consideration for the help given or to be given, without prejudice to
restaurant, boarding house, lodging house, or apartment house and the Section thirteen of this Act.
like without paying therefor, with intent to defraud the proprietor or
(d) Accepting or having any member of his family accept employment in
manager thereof, or by obtaining credit at hotel, inn, restaurant, boarding
a private enterprise which has pending official business with him during
house, lodging house, or apartment house by the use of any false
the pendency thereof or within one year after its termination.
pretense, or by abandoning or surreptitiously removing any part of his
baggage from a hotel, inn, restaurant, boarding house, lodging house or (e) Causing any undue injury to any party, including the Government, or
apartment house after obtaining credit, food, refreshment or giving any private party any unwarranted benefits, advantage or
accommodation therein without paying for his food, refreshment or preference in the discharge of his official administrative or judicial
accommodation. functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and
3. Through any of the following fraudulent means:
employees of offices or government corporations charged with the grant
(a) By inducing another, by means of deceit, to sign any document. of licenses or permits or other concessions.
(b) By resorting to some fraudulent practice to insure success in a (f) Neglecting or refusing, after due demand or request, without sufficient
gambling game. justification, to act within a reasonable time on any matter pending
before him for the purpose of obtaining, directly or indirectly, from any
(c) By removing, concealing or destroying, in whole or in part, any court
person interested in the matter some pecuniary or material benefit or
record, office files, document or any other papers.
advantage, or for the purpose of favoring his own interest or giving
24 May be entitled to Probation. undue advantage in favor of or discriminating against any other
interested party.
25 May be entitled to Probation if the maximum penalty imposed is 6
years. (g) Entering, on behalf of the Government, into any contract or
transaction manifestly and grossly disadvantageous to the same,
26 May be entitled to Probation. whether or not the public officer profited or will profit thereby.
27 Quinto v. Commission on Elections, G.R. No. 189698, February 22, (h) Director or indirectly having financing or pecuniary interest in any
2010, 613 SCRA 385, 414. business, contract or transaction in connection with which he intervenes
or takes part in his official capacity, or in which he is prohibited by the
28 People v. Cayat, 68 Phil. 12, 18 (1939).
Constitution or by any law from having any interest.
29 TSN, Oral Arguments, February 25, 2014, pp. 192-195.
(i) Directly or indirectly becoming interested, for personal gain, or having
30 463 U.S. 277 (1983) a material interest in any transaction or act requiring the approval of a
board, panel or group of which he is a member, and which exercises
31 Section 3. Corrupt practices of public officers. - In addition to acts or
discretion in such approval, even if he votes against the same or does
omissions of public officers already penalized by existing law, the
not participate in the action of the board, committee, panel or group.
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful: Interest for personal gain shall be presumed against those public officers
responsible for the approval of manifestly unlawful, inequitable, or
(a) Persuading, inducing or influencing another public officer to perform
irregular transaction or acts by the board, panel or group to which they
an act constituting a violation of rules and regulations duly promulgated
belong.
(j) Knowingly approving or granting any license, permit, privilege or 41 AN ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN
benefit in favor of any person not qualified for or not legally entitled to THE PHILIPPINES.
such license, permit, privilege or advantage, or of a mere representative
42 Section 19.
or dummy of one who is not so qualified or entitled.
1. Excessive fines shall not be imposed, nor cruel, degrading or inhuman
(k) Divulging valuable information of a confidential character, acquired
punishment inflicted. x x x.
by his office or by him on account of his official position to unauthorized
persons, or releasing such information in advance of its authorized 43 Gutierrez v. Department of Budget and Management, G.R. No.
release date. 153266, 159007, 159029, 170084, 172713, 173119, 176477, 177990,
A.M. No. 06-4-02-SB, March 18, 2010, 616 SCRA 1, 25.
The person giving the gift, present, share, percentage or benefit referred
to in subparagraphs (b) and (c); or offering or giving to the public officer 44 People v. De la Cruz, 92 Phil. 906, 908 (1953); People v. Tongko,
the employment mentioned in subparagraph (d); or urging the divulging 353 Phil. 37, 43 (1998).
or untimely release of the confidential information referred to in
subparagraph (k) of this section shall, together with the offending public 45 People v. Estoista, 93 Phil. 647, 655 (1953); People v. Dionisio, No.
officer, be punished under Section nine of this Act and shall be L-15513, March 27, 1968, 22 SCRA 1299, 1301-1302.
EN BANC (b) That the crime was committed by a band; and afford impunity.
(c) With the aid of armed men or persons who insure or afford impunity.
G.R. Nos. L-32613-14 December 27, 1972 Co moved to quash on the ground that the Anti-Subversion Act is a bill
of attainder.
PEOPLE OF THE PHILIPPINES, petitioner,
vs. Meanwhile, on May 25, 1970, another criminal complaint was filed with
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First the same court, sharing the respondent Nilo Tayag and five others with
Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO CO alias subversion. After preliminary investigation was had, an information was
"Bob," and NILO S. TAYAG alias Romy Reyes alias filed, which, as amended, reads:
"Taba," respondents.
The undersigned provincial Fiscal of Tarlac and State Prosecutors duly
Solicitor R. Mutuc for respondent Feliciano Co. designated by the Secretary of Justice to collaborate with the Provincial
Fiscal of Tarlac, pursuant to the Order dated June 5, above entitled
Jose W. Diokno for respondent Nilo Tayag.
case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA,
ARTHUR GARCIA, RENATO (REY) CASIPE, ABELARDO GARCIA,
MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER MELODY
CASTRO, J.:p and several JOHN DOES, whose identities are still unknown, for
violation of REPUBLIC ACT No. 1700, otherwise known as the Anti-
I. Statement of the Case
Subversion Law, committed as follows:
Posed in issue in these two cases is the constitutionality of the Anti-
That in or about March 1969 and for sometime prior thereto and
Subversion
thereafter, in the Province of Tarlac, within the jurisdiction of this
Act, 1 which outlaws the Communist Party of the Philippines and other
Honorable Court, and elsewhere in the Philippines, the above-named
"subversive associations," and punishes any person who "knowingly,
accused knowingly, willfully and by overt acts organized, joined and/or
willfully and by overt acts affiliates himself with, becomes or remains a
remained as offices and/or ranking leaders, of the KABATAANG
member" of the Party or of any other similar "subversive" organization.
MAKABAYAN, a subversive organization as defined in Republic Act No.
On March 5, 1970 a criminal complaint for violation of section 4 of the 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition
Anti-Subversion Act was filed against the respondent Feliciano Co in the thereto, knowingly, willfully and by over acts joined and/or remained as
Court of First Instance of Tarlac. On March 10 Judge Jose C. de a member and became an officer and/or ranking leader not only of the
Guzman conducted a preliminary investigation and, finding a prima Communist Party of the Philippines but also of the New People's Army,
facie case against Co, directed the Government prosecutors to file the the military arm of the Communist Party of the Philippines; and that all
corresponding information. The twice-amended information, docketed the above-named accused, as such officers and/or ranking leaders of
as Criminal Case No. 27, recites: the aforestated subversive organizations, conspiring, confederating and
mutually helping one another, did then and there knowingly, willfully and
feloniously commit subversive and/or seditious acts, by inciting, it is against this evil that the constitutional prohibition is directed. The
instigating and stirring the people to unite and rise publicly and singling out of a definite class, the imposition of a burden on it, and a
tumultuously and take up arms against the government, and/or engage legislative intent, suffice to stigmatizea statute as a bill of attainder. 9
in rebellious conspiracies and riots to overthrow the government of the
In the case at bar, the Anti-Subversion Act was condemned by the
Republic of the Philippines by force, violence, deceit, subversion and/or
court a quo as a bill of attainder because it "tars and feathers" the
other illegal means among which are the following:
Communist Party of the Philippines as a "continuing menace to the
1. On several occasions within the province of Tarlac, the accused freedom and security of the country; its existence, a 'clear, present and
conducted meetings and/or seminars wherein the said accused grave danger to the security of the Philippines.'" By means of the Act,
delivered speeches instigating and inciting the people to unite, rise in the trial court said, Congress usurped "the powers of the judge," and
arms and overthrow the Government of the Republic of the Philippines, assumed "judicial magistracy by pronouncing the guilt of the CCP
by force, violence, deceit, subversion and/or other illegal means; and without any of the forms or safeguards of judicial trial." Finally, according
toward this end, the said accused organized, among others a chapter of to the trial court, "if the only issue [to be determined] is whether or not
the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the the accused is a knowing and voluntary member, the law is still a bill of
avowed purpose of undertaking or promoting an armed revolution, attainder because it has expressly created a presumption of
subversive and/or seditious propaganda, conspiracies, and/or riots organizational guilt which the accused can never hope to overthrow."
and/or other illegal means to discredit and overthrow the Government of
1. When the Act is viewed in its actual operation, it will be seen that it
the Republic of the Philippines and to established in the Philippines a
does not specify the Communist Party of the Philippines or the members
Communist regime.
thereof for the purpose of punishment. What it does is simply to declare
2. The accused NILO TAYAG alias ROMY REYES alias TABA, together the Party to be an organized conspiracy for the overthrow of the
with FRANCISCO PORTEM alias KIKO Gonzales and others, pursued Government for the purposes of the prohibition, stated in section 4,
the above subversive and/or seditious activities in San Pablo City by against membership in the outlawed organization. The term "Communist
recruiting members for the New People's Army, and/or by instigating and Party of the Philippines" issued solely for definitional purposes. In fact
inciting the people to organize and unite for the purpose of overthrowing the Act applies not only to the Communist Party of the Philippines but
the Government of the Republic of the Philippines through armed also to "any other organization having the same purpose and their
revolution, deceit, subversion and/or other illegal means, and successors." Its focus is not on individuals but on conduct. 10
establishing in the Philippines a Communist Government.
This feature of the Act distinguishes it from section 504 of the U.S.
That the following aggravating circumstances attended the commission Federal Labor-Management Reporting and Disclosure Act of
of the offense: (a) aid of armed men or persons to insure or afford 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder
impunity; and (b) craft, fraud, or disguise was employed. and therefore unconstitutional. Section 504 provided in its pertinent
parts as follows:
On July 21, 1970 Tayag moved to quash, impugning the validity of the
statute on the grounds that (1) it is a bill of attainder; (2) it is vague; (3) (a) No person who is or has been a member of the Communist
it embraces more than one subject not expressed in the title thereof; and Party ... shall serve
(4) it denied him the equal protection of the laws.
(1) as an officer, director, trustee, member of any executive board or
Resolving the constitutional issues raised, the trial court, in its resolution similar governing body, business agent, manager, organizer, or other
of September 15, 1970, declared the statute void on the grounds that it employee (other than as an employee performing exclusively clerical or
is a bill of attainder and that it is vague and overboard, and dismissed custodial duties) of any labor organization.
the informations against the two accused. The Government appealed.
during or for five years after the termination of his membership in the
We resolved to treat its appeal as a special civil action for certiorari.
Communist Party....
II. Is the Act a Bill of Attainder?
(b) Any person who willfully violates this section shall be fined not more
Article III, section 1 (11) of the Constitution states that "No bill of than $10,000 or imprisoned for not more than one year, or both.
attainder or ex port facto law shall be enacted." 2 A bill of attainder is a
This statute specified the Communist Party, and imposes disability and
legislative act which inflicts punishment without trial. 3 Its essence is the
penalties on its members. Membership in the Party, without more, ipso
substitution of a legislative for a judicial determination of guilt. 4 The
facto disqualifies a person from becoming an officer or a member of the
constitutional ban against bills of attainder serves to implement the
governing body of any labor organization. As the Supreme Court of the
principle of separation of powers 5 by confining legislatures to
United States pointed out:
rule-making 6 and thereby forestalling legislative usurpation of the
judicial function. 7 History in perspective, bills of attainder were Under the line of cases just outlined, sec. 504 of the Labor Management
employed to suppress unpopular causes and political minorities, 8 and Reporting and Disclosure Act plainly constitutes a bill of attainder.
Congress undoubtedly possesses power under the Commerce Clause deceit, and other illegal means and place the country under the control
to enact legislation designed to keep from positions affecting interstate and domination of a foreign power.
commerce persons who may use of such positions to bring about
As to the claim that under the statute organizationl guilt is nonetheless
political strikes. In section 504, however, Congress has exceeded the
imputed despite the requirement of proof of knowing membership in the
authority granted it by the Constitution. The statute does not set forth a
Party, suffice it to say that is precisely the nature of conspiracy, which
generally applicable rule decreeing that any person who commits certain
has been referred to as a "dragneet device" whereby all who participate
acts or possesses certain characteristics (acts and characteristics
in the criminal covenant are liable. The contention would be correct if the
which, in Congress' view, make them likely to initiate political strikes)
statute were construed as punishing mere membership devoid of any
shall not hold union office, and leaves to courts and juries the job of
specific intent to further the unlawful goals of the Party. 13 But the
deciding what persons have committed the specified acts or possessed
statute specifically required that membership must be knowing or active,
the specified characteristics. Instead, it designates in no uncertain terms
with specific intent to further the illegal objectives of the Party. That is
the persons who possess the feared characteristics and therefore
what section 4 means when it requires that membership, to be unlawful,
cannot hold union office without incurring criminal liability members
must be shown to have been acquired "knowingly, willfully and by overt
of the Communist Party.
acts." 14 The ingredient of specific intent to pursue the unlawful goals of
Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L the Party must be shown by "overt acts." 15 This constitutes an element
ed 2d 625, 81 S CT 1357, lend a support to our conclusion. That case of "membership" distinct from the ingredient of guilty knowledge. The
involved an appeal from an order by the Control Board ordering the former requires proof of direct participation in the organization's unlawful
Communist Party to register as a "Communist-action organization," activities, while the latter requires proof of mere adherence to the
under the Subversive Activities Control Act of 1950, 64 Stat 987, 50 USC organization's illegal objectives.
sec. 781 et seq. (1958 ed). The definition of "Communist-action
2. Even assuming, however, that the Act specifies individuals and not
organization" which the Board is to apply is set forth in sec. 3 of the Act:
activities, this feature is not enough to render it a bill of attainder. A
[A]ny organization in the United States ... which (i)is substantially statute prohibiting partners or employees of securities underwriting firms
directed, dominated, or controlled by the foreign government or foreign from serving as officers or employees of national banks on the basis of
organization controlling the world Communist movement referred to in a legislative finding that the persons mentioned would be subject to the
section 2 of this title, and(ii) operates primarily to advance the objectives temptation to commit acts deemed inimical to the national economy, has
of such world Communist movement... 64 Stat 989, 50 USC sec. 782 been declared not to be a bill of attainder. 16 Similarly, a statute
(1958 ed.) requiring every secret, oath-bound society having a membership of at
least twenty to register, and punishing any person who becomes a
A majority of the Court rejected the argument that the Act was a bill of
member of such society which fails to register or remains a member
attainder, reasoning that sec. 3 does not specify the persons or groups
thereof, was declared valid even if in its operation it was shown to apply
upon which the deprivations setforth in the Act are to be imposed, but
only to the members of the Ku Klux Klan. 17
instead sets forth a general definition. Although the Board has
determined in 1953 that the Communist Party was a "Communist-action In the Philippines the validity of section 23 (b) of the Industrial Peace
organization," the Court found the statutory definition not to be so narrow Act, 18 requiring labor unions to file with the Department of Labor
as to insure that the Party would always come within it: affidavits of union officers "to the effect that they are not members of the
Communist Party and that they are not members of any organization
In this proceeding the Board had found, and the Court of Appeals has
which teaches the overthrow of the Government by force or by any illegal
sustained its conclusion, that the Communist Party, by virtud of the
or unconstitutional method," was upheld by this Court. 19
activities in which it now engages, comes within the terms of the Act. If
the Party should at anytime choose to abandon these activities, after it Indeed, it is only when a statute applies either to named individuals or
is once registered pursuant to sec. 7, the Act provides adequate means to easily ascertainable members of a group in such a way as to inflict
of relief. (367 US, at 87, 6 L ed 2d at 683) punishment on them without a judicial trial does it become a bill of
attainder. 20 It is upon this ground that statutes which disqualified those
Indeed, were the Anti-Subversion Act a bill of attainder, it would be
who had taken part in the rebellion against the Government of the United
totally unnecessary to charge Communists in court, as the law alone,
States during the Civil War from holding office, 21 or from exercising
without more, would suffice to secure their punishment. But the
their profession, 22 or which prohibited the payment of further
undeniable fact is that their guilt still has to be judicially established. The
compensation to individuals named in the Act on the basis of a finding
Government has yet to prove at the trial that the accused joined the
that they had engages in subversive activities, 23 or which made it a
Party knowingly, willfully and by overt acts, and that they joined the
crime for a member of the Communist Party to serve as an officer or
Party, knowing its subversive character and with specific intent to further
employee of a labor union, 24 have been invalidated as bills of attainder.
its basic objective, i.e., to overthrow the existing Government by force
But when the judgment expressed in legislation is so universally so it was advised putting aside controverted evidence that the
acknowledged to be certain as to be "judicially noticeable," the order was a revival of the Ku Klux Klan of an earlier time with additional
legislature may apply its own rules, and judicial hearing is not needed features borrowed from the Know Nothing and the A. P. A. orders of
fairly to make such determination. 25 other periods; that its memberships was limited to native-born, gentile,
protestant whites; that in part of its constitution and printed creed it
In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature
proclaimed the widest freedom for all and full adherence to the
passed a law requiring every secret, oath-bound society with a
Constitution of the United States; in another exacted of its member an
membership of at least twenty to register, and punishing any person who
oath to shield and preserve "white supremacy;" and in still another
joined or remained a member of such a society failing to register. While
declared any person actively opposing its principles to be "a dangerous
the statute did not specify the Ku Klux Klan, in its operation the law
ingredient in the body politic of our country and an enemy to the weal of
applied to the KKK exclusively. In sustaining the statute against the
our national commonwealth;" that it was conducting a crusade against
claim that it discriminated against the Ku Klux Klan while exempting
Catholics, Jews, and Negroes, and stimulating hurtful religious and race
other secret, oath-bound organizations like masonic societies and the
prejudices; that it was striving for political power and assuming a sort of
Knights of Columbus, the United States Supreme Court relied on
guardianship over the administration of local, state and national affairs;
common knowledge of the nature and activities of the Ku Klux Klan. The
and that at times it was taking into its own hands the punishment of what
Court said:
some of its members conceived to be crimes. 27
The courts below recognized the principle shown in the cases just cited
In the Philippines the character of the Communist Party has been the
and reached the conclusion that the classification was justified by a
object of continuing scrutiny by this Court. In 1932 we found the
difference between the two classes of associations shown by
Communist Party of the Philippines to be an illegal association. 28 In
experience, and that the difference consisted (a) in a manifest tendency
1969 we again found that the objective of the Party was the "overthrow
on the part of one class to make the secrecy surrounding its purpose
of the Philippine Government by armed struggle and to establish in the
and membership a cloak for acts and conduct inimical to personal rights
Philippines a communist form of government similar to that of Soviet
and public welfare, and (b) in the absence of such a tendency on the
Russia and Red China." 29 More recently, in Lansang vs. Garcia, 30we
part of the other class. In pointing out this difference one of the courts
noted the growth of the Communist Party of the Philippines and the
said of the Ku Klux Klan, the principal association in the included class:
organization of Communist fronts among youth organizations such as
"It is a matter of common knowledge that this organization functions
the Kabataang Makabayan (KM) and the emergence of the New
largely at night, its members disguised by hoods and gowns and doing
People's Army. After meticulously reviewing the evidence, we said: "We
things calculated to strike terror into the minds of the people;" and later
entertain, therefore, no doubts about the existence of a sizeable group
said of the other class: "These organizations and their purposes are well
of men who have publicly risen in arms to overthrow the government and
known, many of them having been in existence for many years. Many of
have thus been and still are engaged in rebellion against the
them are oath-bound and secret. But we hear no complaint against them
Government of the Philippines.
regarding violation of the peace or interfering with the rights of others."
Another of the courts said: "It is a matter of common knowledge that the 3. Nor is it enough that the statute specify persons or groups in order
association or organization of which the relator is concededly a member that it may fall within the ambit of the prohibition against bills of attainder.
exercises activities tending to the prejudice and intimidation of sundry It is also necessary that it must apply retroactively and reach past
classes of our citizens. But the legislation is not confined to this society;" conduct. This requirement follows from the nature of a bill of attainder
and later said of the other class: "Labor unions have a recognized lawful as a legislative adjudication of guilt. As Justice Frankfurter observed,
purpose. The benevolent orders mentioned in the Benevolent Orders "frequently a bill of attainder was ... doubly objectionable because of
Law have already received legislative scrutiny and have been granted its ex post facto features. This is the historic explanation for uniting the
special privileges so that the legislature may well consider them two mischiefs in one
beneficial rather than harmful agencies." The third court, after clause 'No Bill of Attainder or ex post facto law shall be passed.' ...
recognizing "the potentialities of evil in secret societies," and observing Therefore, if [a statute] is a bill of attainder it is also an ex post facto law.
that "the danger of certain organizations has been judicially But if it is not an ex post facto law, the reasons that establish that it is
demonstrated," meaning in that state, said: "Benevolent orders, not are persuasive that it cannot be a bill of attainder." 31
labor unions and college fraternities have existed for many years, and,
Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court
while not immune from hostile criticism, have on the whole justified their
upheld the validity of the Charter of the City of Los Angeles which
existence."
provided:
We assume that the legislature had before it such information as was
... [N]o person shall hold or retain or be eligible for any public office or
readily available including the published report of a hearing, before a
employment in the service of the City of Los Angeles, in any office or
committee of the House of Representatives of the 57th Congress
department thereof, either elective or appointive, who has within five (5)
relating to the formation, purposes and activities of the Klu Klux Klan. If
years prior to the effective date of this section advised, advocated, or
taught, or who may, after this section becomes effective, become a and under oath their membershipin the Party. The law expressly
member of or affiliated with any group, society, association, organization provides that such renunciationshall operate to exempt such persons
or party which advises, advocates or teaches or has within said period from penalliability. 34 The penalties prescribed by the Act are
of five (5) years advised, advocated, or taught the overthrow by force or thereforenot inescapable.
violence of the Government of the United States of America or of the
III. The Act and the Requirements of Due Process
State of California.
1. As already stated, the legislative declaration in section 2 of the Act
In upholding the statute, the Court stressed the prospective application
that the Communist Party of the Philippinesis an organized conspiracy
of the Act to the petitioner therein, thus:
for the overthrow of theGovernment is inteded not to provide the basis
... Immaterial here is any opinion we might have as to the charter for a legislativefinding of guilt of the members of the Party butrather to
provision insofar as it purported to apply restrospectively for a five-year justify the proscription spelled out in section 4. Freedom of expression
period to its effective date. We assume that under the Federal and freedom of association are sofundamental that they are thought by
Constitution the Charter Amendment is valid to the extent that it bars some to occupy a"preferred position" in the hierarchy of constitutional
from the city's public service persons who, subsequently to its adoption values. 35 Accordingly, any limitation on their exercise mustbe justified
in 1941, advise, advocate, or reach the violent overthrow of the by the existence of a substantive evil. This isthe reason why before
Government or who are or become affiliated with any group doing so. enacting the statute in question Congressconducted careful
The provisions operating thus prospectively were a reasonable investigations and then stated itsfindings in the preamble, thus:
regulation to protect the municipal service by establishing an
... [T]he Communist Party of the Philippines althoughpurportedly a
employment qualification of loyalty to the State and the United States.
political party, is in fact an organized conspiracyto overthrow the
... Unlike the provisions of the charter and ordinance under which Government of the Republic of the Philippinesnot only by force and
petitioners were removed, the statute in the Lovett case did not declare violence but also by deceit, subversionand other illegal means, for the
general and prospectively operative standards of qualification and purpose of establishing in thePhilippines a totalitarian regime subject to
eligibility for public employment. Rather, by its terms it prohibited any alien dominationand control;
further payment of compensationto named individuals or employees.
... [T]he continued existence and activities of the CommunistParty of the
Under these circumstances, viewed against the legislative background,
Philippines constitutes a clear, present andgrave danger to the security
the statutewas held to have imposed penalties without judicial trial.
of the Philippines;
Indeed, if one objection to the bill of attainder is thatCongress thereby
... [I]n the face of the organized, systematice and persistentsubversion,
assumed judicial magistracy, them it mustbe demonstrated that the
national in scope but international in direction,posed by the Communist
statute claimed to be a bill of attainderreaches past conduct and that the
Party of the Philippines and its activities,there is urgent need for special
penalties it imposesare inescapable. As the U.S. Supreme Court
legislation to cope withthis continuing menace to the freedom and
observedwith respect to the U.S. Federal Subversive Activities
security of the country.
ControlAct of 1950:
In truth, the constitutionality of the Act would be opento question if,
Nor is the statute made an act of "outlawry" or of attainderby the fact that
instead of making these findings in enactingthe statute, Congress
the conduct which it regulates is describedwith such particularity that, in
omitted to do so.
probability, few organizationswill come within the statutory terms.
Legislatures may act tocurb behaviour which they regard as harmful to In saying that by means of the Act Congress has assumed judicial
the public welfare,whether that conduct is found to be engaged in by magistracy, the trial courd failed to takeproper account of the distinction
manypersons or by one. So long as the incidence of legislation issuch between legislative fact and adjudicative fact. Professor Paul Freund
that the persons who engage in the regulated conduct, bethey many or elucidatesthe crucial distinction, thus:
few, can escape regulation merely by altering thecourse of their own
present activities, there can be no complaintof an attainder. 33 ... A law forbidding the sale of beverages containingmore than 3.2 per
cent of alcohol would raise a question of legislativefact, i.e., whether this
This statement, mutatis mutandis, may be said of theAnti-Subversion standard has a reasonable relationto public health, morals, and the
Act. Section 4 thereof expressly statesthat the prohibition therein applies enforcement problem. Alaw forbidding the sale of intoxicating beverages
only to acts committed"After the approval of this Act." Only those who (assuming itis not so vague as to require supplementation by rule-
"knowingly,willfully and by overt acts affiliate themselves with,become or making)would raise a question of adjudicative fact, i.e., whether thisor
remain members of the Communist Party of thePhilippines and/or its that beverage is intoxicating within the meaning of the statuteand the
successors or of any subversive association"after June 20, 1957, are limits on governmental action imposed by the Constitution. Of course
punished. Those whowere members of the Party or of any other what we mean by fact in each case is itselfan ultimate conclusion
subversive associationat the time of the enactment of the law, weregiven
the opportunity of purging themselves of liability byrenouncing in writing
founded on underlying facts and oncriteria of judgment for weighing 2. By carefully delimiting the reach of the Act to conduct (as explicitly
them. described in sectin 4 thereof), Congressreaffirmed its respect for the rule
that "even throughthe governmental purpose be legitimate and
A conventional formulation is that legislative facts those facts which
substantial,that purpose cannot be pursued by means that broadly
are relevant to the legislative judgment will not be canvassed save to
stiflefundamental personal liberties when the end can be more narrowly
determine whether there is a rationalbasis for believing that they exist,
achieved." 42 The requirement of knowing membership,as
while adjudicativefacts those which tie the legislative enactment to
distinguished from nominal membership, hasbeen held as a sufficient
the litigant are to be demonstrated and found according to the
basis for penalizing membershipin a subversive organization. 43 For, as
ordinarystandards prevailing for judicial trials. 36
has been stated:
The test formulated in Nebbia vs. new York, 37 andadopted by this
Membership in an organization renders aid and encouragement to the
Court in Lansang vs. Garcia, 38 is that 'if laws are seen to have a
organization; and when membership is acceptedor retained with
reasonable relation to a proper legislative purpose, and are neither
knowledge that the organization is engaged inan unlawful purpose, the
arbitrary nor discriminatory, the requirements of due process are
one accepting or retaining membershipwith such knowledge makes
satisfied, and judicial determination to that effect renders a court functus
himself a party to the unlawfulenterprise in which it is engaged. 44
officio." The recital of legislative findings implements this test.
3. The argument that the Act is unconstitutionallyoverbroad because
With respect to a similar statement of legislative findingsin the U.S.
section 2 merely speaks of "overthrow"of the Government and overthrow
Federal Subversive Activities Control Actof 1950 (that "Communist-
may be achieved by peaceful means, misconceives the function of the
action organizations" are controlledby the foreign government
phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is
controlling the worldCommunist movement and that they operate
merely a legislative declaration; the definitionsof and the penalties
primarily to"advance the objectives of such world Communist
prescribed for the different acts prescribedare stated in section 4 which
movement"),the U.S. Supreme Court said:
requires that membershipin the Communist Party of the Philippines, to
It is not for the courts to reexamine the validity of theselegislative be unlawful, must be acquired "knowingly, willfully and by overt acts."
findings and reject them....They are the productof extensive Indeed, the first "whereas" clause makes clear thatthe overthrow
investigation by Committes of Congress over morethan a decade and a contemplated is "overthrow not only by forceand violence but also be
half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We certainly deceit, subversion and other illegalmeans." The absence of this
cannot dismiss them as unfoundedirrational imaginings. ... And if we qualificatio in section 2 appearsto be due more to an oversight rather
accept them, as we mustas a not unentertainable appraisal by Congress than to deliberateomission.
of the threatwhich Communist organizations pose not only to existing
Moreover, the word "overthrow' sufficiently connotesthe use of violent
governmentin the United States, but to the United States as asovereign,
and other illegal means. Only in a metaphoricalsense may one speak of
independent Nation. ...we must recognize that thepower of Congress to
peaceful overthrow ofgovernments, and certainly the law does not speak
regulate Communist organizations of thisnature is
in metaphors.In the case of the Anti-Subversion Act, the use ofthe word
extensive. 39
"overthrow" in a metaphorical sense is hardlyconsistent with the clearly
This statement, mutatis mutandis, may be said of thelegislative findings delineated objective of the "overthrow,"namely, "establishing in the
articulated in the Anti-Subversion Act. Philippines a totalitarianregime and place [sic] the Government under
thecontrol and domination of an alien power." What thisCourt once said
That the Government has a right to protect itself againstsubversion is a in a prosecution for sedition is appropos: "The language used by the
proposition too plain to require elaboration.Self-preservation is the appellant clearly imported anoverthrow of the Government by violence,
"ultimate value" of society. It surpasses and transcendes every other and it should beinterpreted in the plain and obvious sense in which it
value, "forif a society cannot protect its very structure from armedinternal wasevidently intended to be understood. The word 'overthrow'could not
attack, ...no subordinate value can be protected" 40 As Chief Justice have been intended as referring to an ordinarychange by the exercise
Vinson so aptly said in Dennis vs. United States: 41 of the elective franchise. The useof the whip [which the accused
exhorted his audience to useagainst the Constabulary], an instrument
Whatever theoretical merit there may be to the argumentthat there is a
designed toleave marks on the sides of adversaries, is inconsistentwith
'right' to rebellion against dictatorial governmentsis without force where
the mild interpretation which the appellant wouldhave us impute to the
the existing structure of government provides for peaceful and orderly
language." 45
change. We rejectany principle of governmental helplessness in the face
of preparationfor revolution, which principle, carried to its logical IV. The Act and the Guaranty of Free Expression
conclusion,must lead to anarchy. No one could conceive that it isnot
within the power of Congress to prohibit acts intended tooverthrow the As already pointed out, the Act is aimed against conspiracies to
government by force and violence. overthrow the Government by force, violence orother illegal means.
Whatever interest in freedom of speechand freedom of association is
infringed by the prohibitionagainst knowing membership in the And provided, finally, That one who conspires with anyother person to
Communist Party ofthe Philippines, is so indirect and so insubstantial as overthrow the Government of the Republic ofthe Philippines, or the
to beclearly and heavily outweighed by the overriding considerationsof government of any of its political subdivisionsby force, violence, deceit,
national security and the preservartion of democraticinstitutions in his subversion or illegal means,for the purpose of placing such Government
country. or political subdivisionunder the control and domination of any lien
power, shallbe punished by prision correccional to prision mayor with
The membership clause of the U.S. Federal Smith Actis similar in many
allthe accessory penalties provided therefor in the same code.
respects to the membership provision ofthe Anti-Subversion Act. The
former provides: It is argued that the said proviso, in reality, punishes notonly
membership in the Communist Party of the Philippinesor similar
Whoever organizes or helps or attempts to organize anysociety, group,
associations, but as well "any conspiracyby two persons to overthrow
or assembly of persons who teach, advocate, orencourage the
the national or any local governmentby illegal means, even if their intent
overthrow or destruction of any such governmentby force or violence; or
is not to establisha totalitarian regime, burt a democratic regime, evenif
becomes or is a member of, or affiliatedwith, any such society, group or
their purpose is not to place the nation under an aliencommunist power,
assembly of persons, knowingthe purpose thereof
but under an alien democratic power likethe United States or England or
Shall be fined not more than $20,000 or imprisoned notmore than twenty Malaysia or even an anti-communistpower like Spain, Japan, Thailand
years, or both, and shall be ineligible for emplymentby the United States or Taiwanor Indonesia."
or any department or agencythereof, for the five years next following his
The Act, in addition to its main title ("An Act to Outlawthe Communist
conviction.... 46
Party of the Philippines and SimilarAssociations, Penalizing
In sustaining the validity of this provision, the "Court said in Scales vs. Membership Therein, and forOther Purposes"), has a short title. Section
United States: 47 1 providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the
It was settled in Dennis that advocacy with which we arehere concerned statuteunequivocally indicates that the subject matter is subversionin
is not constitutionally protected speech, and itwas further established general which has for its fundamental purpose the substitutionof a
that a combination to promote suchadvocacy, albeit under the aegis of foreign totalitarian regime in place of theexisting Government and not
what purports to be a politicalparty, is not such association as is merely subversion by Communistconspiracies..
protected by the firstAmendment. We can discern no reason why
membership, whenit constitutes a purposeful form of complicity in a The title of a bill need not be a catalogue or an indexof its contents, and
group engagingin this same forbidden advocacy, should receive need not recite the details of the Act. 51 It is a valid title if it indicates in
anygreater degree of protection from the guarantees of that broad but clear termsthe nature, scope, and consequences of the
Amendment. proposed lawand its operation. 52 A narrow or technical construction
isto be avoided, and the statute will be read fairly and reasonablyin order
Moreover, as was held in another case, where the problemsof not to thwart the legislative intent. We holdthat the Anti-Subversion Act
accommodating the exigencies of self-preservationand the values of fully satisfies these requirements.
liberty are as complex and intricate as inthe situation described in the
legislative findings stated inthe U.S. Federal Subversive Activities VI. Conclusion and Guidelines
Control Act of 1950,the legislative judgment as to how that threat may
In conclusion, even as we uphold the validity of theAnti-Subversion Act,
best bemet consistently with the safeguards of personal freedomsis not
we cannot overemphasize the needfor prudence and circumspection in
to be set aside merely because the judgment of judgeswould, in the first
its enforcement, operatingas it does in the sensitive area of freedom of
instance, have chosen other methods. 48 For in truth, legislation,
expressionand belief. Accordingly, we set the following basic
"whether it restrains freedom tohire or freedom to speak, is itself an effort
guidelines to be observed in any prosecution under the Act.The
at compromisebetween the claims of the social order and individual
Government, in addition to proving such circumstancesas may affect
freedom,and when the legislative compromise in either case isbrought
liability, must establish the following elementsof the crime of joining the
to the judicial test the court stands one step removedfrom the conflict
Communist Party of the Philippinesor any other subversive association:
and its resolution through law." 49
(1) In the case of subversive organizations other thanthe Communist
V. The Act and its Title
Party of the Philippines, (a) that thepurpose of the organization is to
The respondent Tayag invokes the constitutional commandthat "no bill overthrow the presentGovernment of the Philippines and to establish in
which may be enacted into law shall embrace more than one subject thiscountry a totalitarian regime under the domination of aforeign power;
which shall be expressed in the title of the bill." 50 (b) that the accused joined such organization;and (c) that he did so
knowingly, willfully and byovert acts; and
What is assailed as not germane to or embraced in thetitle of the Act is
the last proviso of section 4 which reads:
(2) In the case of the Communist Party of the Philippines,(a) that the weakening the senseof allegiance have introduced complexities in
CPP continues to pursue the objectiveswhich led Congress in 1957 to coping withsuch problems. There must be then, and I am the firstto
declare it to be an organizedconspiracy for the overthrow of the recognize it, a greater understanding for the governmentalresponde to
Government by illegalmeans for the purpose of placing the country situations of that character. It is inthat light that the validity of the Anti-
under thecontrol of a foreign power; (b) that the accused joined theCPP; Subversion Act isto be appraised. From ny standpoint, and I am not
and (c) that he did so willfully, knowingly and byovert acts. presumptuousenough to claim that it is the only perspectiveor that is the
most realistic, I feel that there was an insufficientappreciation of the
We refrain from making any pronouncement as to thecrime or remaining
compulsion of the constitutionalcommands against bills of attainder and
a member of the Communist Party ofthe Philippines or of any other
abridgmentof free speech. I am comforted by the thought that evenhad
subversive association: weleave this matter to future determination.
my view prevailed, all that it would mean is that anew legislation, more
ACCORDINGLY, the questioned resolution of September15, 1970 is set in comformity to my way of thinkingto what is ordained by the
aside, and these two cases are herebyremanded to the court a quo for fundamental law, wouldhave to be enacted. No valid fear need be
trial on the merits. Costs de oficio. entertained thenthat a setback would be occasioned to legitilate state
effortsto stem the tide of subversive activities, in whateverform
Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur. manifested.
Concepcion, C.J., concurs in the result. 2. The starting point in any inquiry as to the significanceof the bill of
attainder clause is the meaning attachedto it by the Constitutional
Makasiar and Antonio, JJ., took no part.
Convention of 1934 and by the people who adopted it. As was explained
by the then Delegate, later Justice, Jose P. Laurel in his address on
November19, 1934 as Chairman of the Committee on the Bill of Rights
quoted in the opinion of the Court: "A billof attainder is a legislative act
which inflicts punishment without judicial trial. (Cummings v. United
States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was
Separate Opinions
an act of Parliament by which a man was tried, convictedand sentenced
to death without a jury, without ahearing in court, without hearing the
witnesses againsthim and without regard to the rules of evidence. His
FERNANDO, J., dissenting: bloodwas attainted or corrupted, rendering him devoid of allheritable
quality of acquiring and disposing property bydescent. (Ex
It is with regard that I find myself unable to join therest of my brethren in
parteGarland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less
the decision reached upholding thevalidity of the Anti-Subversion
than death, the act wasknown as a 'bill of pains and penalties.' Bills of
Act. 1 It is to be admittedthat the learned and scholarly opinbion of
attainder, like ex post facto laws, were favorite methods of
Justice Castro hasthe impress of conscientious and painstaking scrutiny
Stuartoppression. Once, the name of Thomas Jefferson was includedin
ofthe constitutional issues raised. What is more, the stressin the
a bill of attainder presented to Parliament becauseof his reform
concluding portion thereof on basic guidelines thatwill assure in the trial
activities." 5Two American SupremeCourt decision were thus in the
of those prosecuted under suchAct respect for their constitutional rights
minds of the framers.They are Cummings v. Missouri 6 and Ex
is to be commended.Nonetheless, my own reading of the decisionscited,
parteGarland. 7 They speak unequivocally. Legislative acts, no matter
interpreting the bill of attainder clause 2 coupled withthe fears, perhaps
whattheir form, that apply either to named individuals or
induced by a too-latitudinarian constructionof the guarantees of freedom
easilyascertainable members of a group in such a way as to inflicton
of belief and expression 3 as well as freedom of association 4 as to
them punishment amounting to a deprivation ofany right, civil or political,
impermissible inroadsto which they may be exposed, compels a
without judicial trial are billsof attainder prohibited by the Constitution. 8
differentconclusion. Hence this dissent.
powerto prosecute overt actions in violation of valid lawsbut withheld any is hereunder reproduced in full:
Section 3. As used in this Act, the term 'Communist Party of the who is a member of the Communist Party of the Philippines or of any
Philippines' shall me and and include the organizations now known as such association or conspiracy, who desires to renounce such
the Communist Party of the Philippines and its military arm, the Hukbong membership may do so in writing and under oath before a municipal or
Mapagpalayang Bayan, formerly known as HUKBALAHAPS, and any city mayor, a provincial governor, or a person authorized by law to
successors of such organizations. administer oaths. Such renunciation shall exempt such person or
persons from the penal sanction of this Act, but the same shall in no way
"Section 4. After the approval of this Act, whoever knowingly, willfully exempt him from liability for criminal acts or for any violation of the
and by overt acts affiliates himself with, becomes or remains a member existing laws of the Republic of the Philippines committed before this Act
of the Communist Party of the Philippines and/or its successor or of any takes effect.
subversive association as defined in section two hereof shall be
punished by the penalty of arresto mayor and shall be disqualified "Section 9. Nothing in this Act shall be interpreted as a restriction to
permanently from holding any public office, appointive and elective, and freedom of thought, of assembly and of association for purposes not
from exercising the right to vote; in case of a second conviction, the contrary to law as guaranteed by the Constitution.
principal penalty shall be prision correccional, and in all subsequent
"Approved, June 20, 1957."
convictions the penalty of prision mayor shall be imposed; and any alien
convicted under this Act shall be deported immediately after he shall 2 Delegate Jose P. Laurel (of the 1934 Constitutional Convention)
have served the sentence imposed upon him: Provided, That if such referred to the Anglo-American origin of this right thus:
member is an officer or a ranking leader of the Communist Party of the
"No ex post facto law or bill of attainder shall be enacted. This provision
Philippines or of any subversive association as defined in section two
is found in the American Federal Constitution (Art. 1, Sec. 9) and is
hereof, or if such member takes up arms against the Government he
applicable to the States (id. Sec. 10). An ex post facto law is a law which
shall be punished by prision mayor to deal with all the accessory
makes an act punishable in a manner in which it was not punishable
penalties provided therefor in the Revised Penal Code: And provided,
when committed. It creates or aggravates the crime or increases the
finally, That one who conspires with any other person to overthrow the
punishment, or changes the rules of evidence for the purpose of
Government of the Republic of the Philippines or the government of any
conviction. The prohibition against the passage of ex post facto laws is
of its political subdivisions by force, violence, deceit, subversion or other
an additional bulwark of personal security protecting the citizen from 7 "The legislative body in enacting bills of attainder exercises the powers
punishment by legislative act which has a retrospective operation. and office of judge, it pronounces upon the guilt of the party, without any
of the forms or safeguards of trial...it fixes the degree of punishment in
"The phrase ex post facto has a technical meaning and refers to crimes
accordance with its own notions of the enormity of the offense."
and criminal proceedings. It is in this sense that it was used in England.
Cummings vs. Missouri, supra note 3.
It was in this sense that the convention of 1787 understood it. (Calder v.
Bull, supra; Watson v. Mercer, 8 Pet. 88, 110; Suterlee v. Mathewson, 2 8 Bills of this sort, says Mr. Justice Story, have been most usually
Peters, 380; Kring v. Missouri, 107 U.S. 221.) This interpretation was passed in England in times of rebellion or gross subserviency to the
upheld by our Supreme Court (U.S. vs. Ang Ken Ko, 6 Phil. 376.). crown, or of violent political excitements; periods, in which all nations
are most liable (as well as free as the enslabe) to forget their duties, and
"A bill of attainder is a legislative act which inflicts punishment without
to trample upon the rights and liberties of others." Comm. sec. 1344, in
judicial trial. (Cummings vs. United States, 4 Wall. 277, 18 L. ed. 356.)
re Young Sing Hee, 36 Fed. 347, 440. During the American revolution
In England, the Bill of Attainder was an act of Parliament by which a man
legislative punishments had been continued by state legislatures, when
was tried, convicted and sentenced to death without a jury, without a
numerous bills of attainder were enacted against the Torries. 1C.
hearing in court, without hearing the witnesses against him and without
Antieu, Modern Constitutional Law, 425.
regard to the rules of evidence. His blood was attained or corrupted,
rendering him devoid of all heritable quality of acquiring and disposing 9 C. Antieu, supra note 8 at 423.
property by descent. (Ex parte Garland, 4 Wall. 333, 18 L. ed 366.) If the
10 The Supreme Court of the United States said in Fleming vs. Nestor,
penalty imposed was less than death, the act was known as a "bill of
363 U.S. 603, 613-14 (1960):
pains and penalties." Bills of attainder, like ex post factolaws, were
favorite methods of Stuart oppression. Once, the name of Thomas "In determining whether legislation which bases a disqualification on the
Jefferson was included in a bill of attainder presented to Parliament happening of a certain past event imposes a punishment, the Court has
because of his reform activities. sought to discern the objects on which the enactment in question was
focused. Where the source of legislative concern can be thought to be
"Often, such bills were 'stimulated by ambition or personal resentment,
the activity or status from which the individual is barred, the
and vindictive malice.' (Calder v. Bull, supra.) A well known case
disqualification is not punishment even though it may bear harshly upon
illustrating the ruthless manner in which a bill of attainder was resorted
one affected."
to was that of Thomas Wentworth, chief adviser of Charles I. He was
brought to impeachment charged with attempting to subvert the liberties 11 73 Stat. 536, 29 U.S.C. sec. 504 (1958 ed. Supp. IV).
of England. He defended himself so ably that his enemies, fearing his
acquittal, withdrew the impeachment and a bill of attainder was passed 12 381 U.S. 437 (1965) (5-4 vote).
29 People vs. Lava, L-4974-78, May 16, 1969. 3 According to Art. III, Sec. 1, par. 8: "No law shall be passed abridging
the freedom of speech, or of the press, or the right of the people
30 L-33864, Dec. 11, 1971, 42 SCRA 448.
peacebly to assemble and petition the Government for redress of
31 United States vs. Lovett, 328 U.S. 303, 318 (1946). grievances."
32 341 U.S. 716 (1951). 4 According to Art. III, Sec. 1 par. 4: "The liberty of abode and of
changing the same within the limits prescribed by law shall not be
33 Communist Party vs. Subversive Activities Control Board, 367 U.S. 1 impaired."
(1960).
5 Footnote 2, p. 9 of Opinion of the Court.
34 Sec. 8.
6 4 Wall. 277 (1867).
35 E. g., Kovacs vs. Cooper, 336 U.S. 77 (1949); Vera vs. Arca, L-
25721, May 26, 1969, 28 SCRA 351. 7 4 Wall. 333 (1867).
36 Freund, Review of Facts in Constitutional Cases, in Supreme Court 8 Cf. United States v. A Lovett, 328 US 303 )1946).
and Supreme Law 47-48 (Cahn ed. 1954).
9 4 Wall. 277 (1867).
37 291 U.S. 502, 537 (1934).
10 Ibid, 323, 325.
38 L-33964, Dec. 11, 1971, 41 SCRA 448.
11 4 Wall. 333 (1867).
26 Communist Party v. Subversive Activities Control Board, 367 US 1, The essential facts constituting the basis of the criminal action are not in
148. dispute, and may be stated as follows: (1) That on the 30th day of
December, 1915, the alleged offended persons Bartolome Oliveros and
Engracia Lianco executed and delivered to the defendants a contract
(Exhibit B) evidencing the fact that the former had borrowed from the
latter the sum of P300, and (2) that, by virtue of the terms of said
contract, the said Bartolome Oliveros and Engracia Lianco obligated
themselves to pay to the defendants interest at the rate of five per cent
(5%) per month, payable within the first ten days of each and every
month, the first payment to be made on the 10th day of January, 1916.
There were other terms in the contract which, however, are not important
for the decision in the present case.
Republic of the Philippines
SUPREME COURT The lower court, in the course of its opinion, stated that at the time of the
Manila execution and delivery of said contract (Exhibit B), there was no law in
force in the Philippine Islands punishing usury; but, inasmuch as the
EN BANC defendants had collected a usurious rate of interest after the adoption of
the Usury Law in the Philippine Islands (Act No. 2655), they were guilty
G.R. No. L-18208 February 14, 1922
of a violation of that law and should be punished in accordance with its
THE UNITED STATES, plaintiff-appellee, provisions.
vs.
The law, we think, is well established that when a contract contains an
VICENTE DIAZ CONDE and APOLINARIA R. DE CONDE, defendants-
obligation to pay interest upon the principal, the interest thereby
appellants.
becomes part of the principal and is included within the promise to pay.
Araneta & Zaragoza for appellants. In other words, the obligation to pay interest on money due under a
Attorney-General Villareal for appellee. contract, be it express or implied, is a part of the obligation of the
contract. Laws adopted after the execution of a contract, changing or
JOHNSON, J.:
altering the rate of interest, cannot be made to apply to such contract
It appears from the record that on the 6th day of May, 1921, a complaint without violating the provisions of the constitution which prohibit the
was presented in the Court of First Instance of the city of Manila, adoption of a law "impairing the obligation of contract." (8 Cyc., 996; 12
charging the defendants with a violation of the Usury Law (Act No. Corpus Juris, 1058-1059.)
2655). Upon said complaint they were each arrested, arraigned, and
The obligation of the contract is the law which binds the parties to
pleaded not guilty. The cause was finally brought on for trial on the 1st
perform their agreement if it is not contrary to the law of the land, morals
day of September, 1921. At the close of the trial, and after a
or public order. That law must govern and control the contract in every
consideration of the evidence adduced, the Honorable M. V. del Rosario,
aspect in which it is intended to bear upon it, whether it affect its validity,
judge, found that the defendants were guilty of the crime charged in the
construction, or discharge. Any law which enlarges, abridges, or in any
complaint and sentenced each of them to pay a fine of P120 and, in case
manner changes the intention of the parties, necessarily impairs the
of insolvency, to suffer subsidiary imprisonment in accordance with the
contract itself. If a law impairs the obligation of a contract, it is prohibited
by the Jones Law, and is null and void. The laws in force in the Philippine
Islands prior to any legislation by the American sovereignty, prohibited
the Legislature from giving to any penal law a retroactive effect unless
such law was favorable to the person accused. (Articles 21 and 22,
Penal Code.)
Ex post facto laws, unless they are favorable to the defendant, are
prohibited in this jurisdiction. Every law that makes an action, done
before the passage of the law, and which was innocent when done,
criminal, and punishes such action, is an ex post facto law. In the present
case Act No. 2655 made an act which had been done before the law
was adopted, a criminal act, and to make said Act applicable to the act
complained of would be to give it an ex post facto operation. The
Legislature is prohibited from adopting a law which will make an act done
before its adoption a crime. A law may be given a retroactive effect in
civil action, providing it is curative in character, but ex post facto laws
are absolutely prohibited unless its retroactive effect is favorable to the
defendant.
For the reason, therefore, that the acts complained of in the present case
were legal at the time of their occurrence, they cannot be made criminal
by any subsequent or ex post facto legislation. What the courts may say,
considering the provisions of article 1255 of the Civil Code, when a civil
action is brought upon said contract, cannot now be determined. A
contract may be annulled by the courts when it is shown that it is against
morals or public order.
For all of the foregoing reasons, we are of the opinion, and so decide,
that the acts complained of by the defendants did not constitute a crime
at the time they were committed, and therefore the sentence of the lower
court should be, and is hereby, revoked; and it is hereby ordered and
decreed that the complaint be dismissed, and that the defendants be
discharged from the custody of the law, with costs de oficio. So ordered.
EN BANC
G.R. No. L-1960 November 26, 1948 quebrantare su condena, fugandose mientras estuviere sufriendo
privacion de libertad por sentencia firme; . . . .
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. We agree with the Solicitor General that inasmuch as the Revised Penal
FLORENTINO ABILONG, defendant-appellant. Code was originally approved and enacted in Spanish, the Spanish text
governs (People vs. Manaba, 58 Phil., 665, 668). It is clear that the word
Carlos Perfecto for appellant.
"imprisonment" used in the English text is a wrong or erroneous
Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Manuel
translation of the phrase "sufriendo privacion de libertad" used in the
Tomacruz for appellee.
Spanish text. It is equally clear that although the Solicitor General
MONTEMAYOR, J.: impliedly admits destierro as not constituting imprisonment, it is a
deprivation of liberty, though partial, in the sense that as in the present
Florentino Abilong was charged in the Court of First Instance of Manila case, the appellant by his sentence of destierro was deprived of the
with evasion of service of sentence under the following information: liberty to enter the City of Manila. This view has been adopted in the
case of People vs. Samonte, No. 36559 (July 26, 1932; 57 Phil., 968)
That on or about the 17th day of September, 1947, in the City of Manila,
wherein this Court held, as quoted in the brief of the Solicitor General
Philippines, the said accused, being then a convict sentenced and
that "it is clear that a person under sentence of destierro is suffering
ordered to serve two (2) years, four (4) months and one (1) day of
deprivation of his liberty and escapes from the restrictions of the penalty
destierro during which he should not enter any place within the radius of
when he enters the prohibited area." Said ruling in that case was ratified
100 kilometers from the City of Manila, by virtue of final judgment
by this Court, though, indirectly in the case of People vs. Jose de Jesus,
rendered by the municipal court on April 5, 1946, in criminal case No. B-
(45 Off. Gaz. Supp. to No. 9, p. 370)1, where it was held that one evades
4795 for attempted robbery, did then and there wilfully, unlawfully and
the service of his sentence of destierro when he enters the prohibited
feloniously evade the service of said sentence by going beyond the limits
area specified in the judgment of conviction, and he cannot invoke the
made against him and commit vagrancy.
provisions of the Indeterminate Sentence Law which provides that its
Contrary to law. provisions do not apply to those who shall have escaped from
confinement or evaded sentence.
Upon arraignment he pleaded guilty and was sentenced to two (2) years,
four (4) months and one (1) day of prision correccional, with the In conclusion we find and hold that the appellant is guilty of evasion of
accessory penalties of the law and to pay the costs. He is appealing from service of sentence under article 157 of the Revised Penal Code
that decision with the following assignment of error: (Spanish text), in that during the period of his sentence of destierro by
virtue of final judgment wherein he was prohibited from entering the City
1. The lower court erred in imposing a penalty on the accused under
of Manila, he entered said City.
article 157 of the Revised Penal Code, which does not cover evasion of
service of "destierro." Finding no reversible error in the decision appealed from, the same is
hereby affirmed with costs against the appellant. So ordered.
Counsel for the appellant contends that a person like the accused
evading a sentence of destierro is not criminally liable under the Moran, C. J., Paras, Feria, Pablo, Bengzon and Tuason, JJ., concur.
provisions of the Revised Penal Code, particularly article 157 of the said
Code for the reason that said article 157 refers only to persons who are
imprisoned in a penal institution and completely deprived of their liberty.
He bases his contention on the word "imprisonment" used in the English Separate Opinions
text of said article which in part reads as follows:
PERFECTO, J., dissenting:
Evasion of service of sentence. The penalty of prision correccional in
its medium and maximum periods shall be imposed upon any convict The legal question raised in this case is whether or not appellant, for
who shall evade service of his sentence by escaping during the term of having violated his judgment of destierro rendered by the Municipal
his imprisonment by reason of final judgment. Court of Manila, can be sentenced under article 157 of the Revised
Penal Code which reads as follows:
The Solicitor General in his brief says that had the original text of the
Revised Penal Code been in the English language, then the theory of Evasion of service of sentence. The penalty of prision correccional in
the appellant could be uphold. However, it is the Spanish text that is its medium and maximum periods shall be imposed upon any convict
controlling in case of doubt. The Spanish text of article 157 in part reads who shall evade service of his sentence by escaping during the term of
thus: his imprisonment by reason of final judgment. However, if such evasion
or escape shall have taken place by means of unlawful entry, by
ART. 157. Quebrantamiento de sentencia. Sera castigado con breaking doors, windows, gates, walls, roofs, or floors, or by using
prision correccional en sus grados medio y maximo el sentenciado que picklocks, false keys, disguise, deceit, violence or intimidation, or
through connivance with other convicts or employees of the penal conditioned by the verb "fugandose," (by escaping). "Privacion de
institution, the penalty shall be prision correccional in its maximum libertad" cannot be considered independently of "fugandose."
period.
There seems to be no question that the Spanish "fugandose" is correctly
Appellant invokes in his favor the negative opinion of author Guillermo translated into the English "by escaping." Now, is there any sense in
Guevara (Revised Penal Code, 1946, p. 322). This negative position is escaping from destierro or banishment, where there is no enclosure
supported by another author, Ambrosio Padilla (Revised Penal Code binding the hypothetical fugitive? "Fugandose" is one of the forms of the
annotated, p. 474). Spanish verb "fugar," to escape. The specific idea of "evasion" or
"escape" is reiterated by the use of said words after the semi-colon in
The prosecution invokes the decision of this Court in People vs. De
the Spanish text and after the first period in the English text. Either the
Jesus, L-1411,2promulgated April 16, 1948, but said decision has no
verb "to escape" or the substantive noun "escape" essentially pre-
application because in said case the legal question involved in the case
supposes some kind of imprisonment or confinement, except
at bar was not raised. The Supreme Court did not consider the question
figuratively, and Article 157 does not talk in metaphors or parables.
of interpretation of the wording of article 157. Undoubtedly, there was
occasion for considering the question, but the Court nevertheless failed "To escape" means "to get away, as by flight or other conscious effort;
to do so. This failure to see the question, at the time, is only an evidence to break away, get free, or get clear, from or out of detention, danger,
that the tribunal is composed of human beings for whom infallibility is discomfort, or the like; as to escape from prison. To issue from
beyond reach. confinement or enclosure of any sort; as gas escapes from the mains."
(Webster's New International Dictionary.)
The prosecution maintains that appellant's contention, supported by two
authors who have considered the question, although tenable under the "Escape" means "act of escaping, or fact or having escaped; evasion of
English text of article 157, is not so under the Spanish text, which is the or deliverance from injury or any evil; also the means of escape. The
one controlling because the Revised Penal Code was originally enacted unlawful departure of a prisoner from the limits of his custody. When the
by the Legislature in Spanish. prisoner gets out of prison and unlawfully regains his liberty, it is an
actual escape." (Webster's New International Dictionary.)
There is no quarrel, therefore, that under the above quoted English text,
the appellant is entitled to acquittal. The question now is whether or not "Evasion" means "escape." (Webster's New International Dictionary.) .
the Spanish text conveys a thing different from that which can be read
The "destierro" imposed on appellant banished him from Manila alone,
in the English text. The Spanish text reads as follows:
and he was free to stay in all the remaining parts of the country, and to
ART. 157. Quebrantamiento de sentencia. Sera castigado con go and stay in any part of the globe outside the country. With freedom
prision correccional en sus grados medio y maximo el sentenciado que to move all over the world, it is farfetched to allege that he is in any
quebrantare su condena, fugandose mientras estuviere sufriendo confinement from which he could escape.
privacion de libertad por sentencia firme; pero si la evasion o fuga se
The words "privacion de libertad" have been correctly translated into the
hubiere llevado a efecto con escalamiento, fractura de puertas,
English "imprisonment," which gives the idea exactly conveyed by
ventanas, verjas, paredes, techos o suelos, o empleado ganzuas, llaves
"privacion de libertad" in the Spanish text. Undoubtedly, the drafters of
falsas, disfraz, engano, violencia o intimidacion, o poniendose de
the latter could have had used a more precise Spanish word, but the
acuerdo con otros sentenciados o dependientes del establecimiento
literary error cannot be taken as a pretext to give to the less precise
donde a hallare recluido la pena sera prision correccional en su grado
words a broader meaning than is usually given to them.
maximo.
"Privacion de libertad," literally meaning "deprivation of liberty or
The question boils down to the words "fugandose mientras estuviere
freedom," has always been used by jurist using the Spanish language
sufriendo privacion de libertad por sentencia firme," which are translated
to mean "imprisonment." They have never given them the unbounded
into English "by escaping during the term of his imprisonment by reason
philosophical scope that would lead to irretrievable absurdities.
of final judgment." The prosecution contends that the words "privacion
de libertad" in the Spanish text is not the same as the word Under that unlimited scope, no single individual in the more than two
"imprisonment" in the English text, and that while "imprisonment" cannot billion inhabitants of the world can be considered free, as the freest
include destierro, "privacion de libertad" may include it. citizen of the freest country is subject to many limitations or deprivations
of liberty. Under the prosecution's theory, should an accused, sentenced
The reason is, however, the result of a partial point of view because it
to pay a fine of one peso, evade the payment of it, because the fine
obliterates the grammatical, logical, ideological function of the words
deprives him of liberty to dispose of his one peso, he will be liable to be
"fugandose" and "by escaping" in the Spanish and English texts,
punished under article 157 of the Revised Penal Code to imprisonment
respectively. There should not be any question that, whatever meaning
of from more that two years to six years. The iniquity and cruelty of such
we may want to give to the words "privacion de libertad," it has to be
situation are too glaring and violent to be entertained for a moment under amount of P2,000, and to pay the costs. The following facts are not
our constitutional framework. disputed.
There is no gainsaying the proposition that to allow the violation of a In the month of November, 1946, the defendant Abelardo Formigones
sentence of destierro without punishment is undesirable, but even was living on his farm in Bahao, Libmanan, municipality of Sipocot,
without applying article 157 of the Revised Penal Code, the act of the Camarines Sur, with his wife, Julia Agricola, and his five children. From
appellant cannot remain unpunished, because his violation of the there they went to live in the house of his half-brother, Zacarias
sentence of destierro may be punished as contempt of court, for which Formigones, in the barrio of Binahian of the same municipality of
imprisonment up to six months is provided. Sipocot, to find employment as harvesters of palay. After about a
month's stay or rather on December 28, 1946, late in the afternoon, Julia
It is deplorable that article 157 should not provide for a situation
was sitting at the head of the stairs of the house. The accused, without
presented in this case, but the gap cannot be filled by this Court without
any previous quarrel or provocation whatsoever, took his bolo from the
encroaching upon the legislative powers of Congress.
wall of the house and stabbed his wife, Julia, in the back, the blade
Perhaps it is better that evasions of sentence be punished, as provided penetrating the right lung and causing a severe hemorrhage resulting in
by the old Penal Code, by an increased in the evaded penalty. This will her death not long thereafter. The blow sent Julia toppling down the
be more reasonable that the penalties provided by article 157, which stairs to the ground, immediately followed by her husband Abelardo
appear to be disproportionate and arbitrary, because they place on who, taking her up in his arms, carried her up the house, laid her on the
equal footing the evader of a sentence of one day of imprisonment and floor of the living room and then lay down beside her. In this position he
a life-termer, one who commits an insignificant offense and one who was found by the people who came in response to the shouts for help
perpetrates the most heinous crime. At any rate, this is a problem for made by his eldest daughter, Irene Formigones, who witnessed and
The appealed decision should be set aside. Investigated by the Constabulary, defendant Abelardo signed a written
statement, Exhibit D, wherein he admitted that he killed The motive was
BRIONES, J., concurring: admittedly of jealousy because according to his statement he used to
have quarrels with his wife for the reason that he often saw her in the
I concur in the foregoing dissenting opinion, because evidently the word
company of his brother Zacarias; that he suspected that the two were
"fugandose" in the Spanish text refers to imprisonment, not to destierro.
maintaining illicit relations because he noticed that his had become
indifferent to him (defendant).
Luis Contreras for appellant. The appeal is based merely on the theory that the appellant is an
Office of the Solicitor General Felix Bautista Angelo and Solicitor Felix imbecile and therefore exempt from criminal liability under article 12 of
V. Makasiar for appellee. the Revised Penal Code. The trial court rejected this same theory and
we are inclined to agree with the lower court. According to the very
MONTEMAYOR, J.:
witness of the defendant, Dr. Francisco Gomez, who examined him, it
This is an appeal from the decision of the Court of First Instance of was his opinion that Abelardo was suffering only from feeblemindedness
Camarines Sur finding the appellant guilty of parricide and sentencing and not imbecility and that he could distinguish right from wrong.
him to reclusion perpetua, to indemnify the heirs of the deceased in the
In order that a person could be regarded as an imbecile within the school age, with the fruits of his work. Occasionally, as a side line he
meaning of article 12 of the Revised Penal Code so as to be exempt made copra. And a man who could feel the pangs of jealousy to take
from criminal liability, he must be deprived completely of reason or violent measure to the extent of killing his wife whom he suspected of
discernment and freedom of the will at the time of committing the crime. being unfaithful to him, in the belief that in doing so he was vindicating
The provisions of article 12 of the Revised Penal Code are copied from his honor, could hardly be regarded as an imbecile. Whether or not his
and based on paragraph 1, article 8, of the old Penal Code of Spain. suspicions were justified, is of little or no import. The fact is that he
Consequently, the decisions of the Supreme Court of Spain interpreting believed her faithless.
and applying said provisions are pertinent and applicable. We quote
But to show that his feeling of jealousy had some color of justification
Judge Guillermo Guevara on his Commentaries on the Revised Penal
and was not a mere product of hallucination and aberrations of a
Code, 4th Edition, pages 42 to 43:
disordered mind as that an imbecile or a lunatic, there is evidence to the
The Supreme Court of Spain held that in order that this exempting following effect. In addition to the observations made by appellant in his
circumstances may be taken into account, it is necessary that there be written statement Exhibit D, it is said that when he and his wife first went
a complete deprivation of intelligence in committing the act, that is, that to live in the house of his half brother, Zacarias Formigones, the latter
the accused be deprived of reason; that there be no responsibility for his was living with his grandmother, and his house was vacant. However,
own acts; that he acts without the least discernment;1 that there be a after the family of Abelardo was settled in the house, Zacarias not only
complete absence of the power to discern, or that there be a total frequented said house but also used to sleep there nights. All this may
deprivation of freedom of the will. For this reason, it was held that the have aroused and even partly confirmed the suspicions of Abelardo, at
imbecility or insanity at the time of the commission of the act should least to his way of thinking.
absolutely deprive a person of intelligence or freedom of will, because
The appellant has all the sympathies of the Court. He seems to be one
mere abnormality of his mental faculties does not exclude imputability.2
of those unfortunate beings, simple, and even feebleminded, whose
The Supreme Court of Spain likewise held that deaf-muteness cannot faculties have not been fully developed. His action in picking up the body
be equaled to imbecility or insanity. of his wife after she fell down to the ground, dead, taking her upstairs,
laying her on the floor, and lying beside her for hours, shows his feeling
The allegation of insanity or imbecility must be clearly proved. Without
of remorse at having killed his loved one though he thought that she has
positive evidence that the defendant had previously lost his reason or
betrayed him. Although he did not exactly surrender to the authorities,
was demented, a few moments prior to or during the perpetration of the
still he made no effort to flee and compel the police to hunt him down
crime, it will be presumed that he was in a normal condition. Acts
and arrest him. In his written statement he readily admitted that he killed
penalized by law are always reputed to be voluntary, and it is improper
his wife, and at the trial he made no effort to deny or repudiate said
to conclude that a person acted unconsciously, in order to relieve him
written statement, thus saving the government all the trouble and
from liability, on the basis of his mental condition, unless his insanity and
expense of catching him, and insuring his conviction.
absence of will are proved.
Although the deceased was struck in the back, we are not prepared to
As to the strange behaviour of the accused during his confinement,
find that the aggravating circumstance of treachery attended the
assuming that it was not feigned to stimulate insanity, it may be
commission of the crime. It seems that the prosecution was not intent or
attributed either to his being feebleminded or eccentric, or to a morbid
proving it. At least said aggravating circumstance was not alleged in the
mental condition produced by remorse at having killed his wife. From the
complaint either in the justice of the peace court or in the Court of First
case of United States vs. Vaquilar (27 Phil. 88), we quote the following
Instance. We are inclined to give him the benefit of the doubt and we
syllabus:
therefore declined to find the existence of this aggravating circumstance.
Testimony of eye-witnesses to a parricide, which goes no further than to On the other hand, the fact that the accused is feebleminded warrants
indicate that the accused was moved by a wayward or hysterical burst the finding in his favor of the mitigating circumstance provided for in
of anger or passion, and other testimony to the effect that, while in either paragraph 8 or paragraph 9 of article 13 of the Revised Penal
confinement awaiting trial, defendant acted absentmindedly at times, is Code, namely that the accused is "suffering some physical defect which
not sufficient to establish the defense of insanity. The conduct of the thus restricts his means of action, defense, or communication with his
defendant while in confinement appears to have been due to a morbid fellow beings," or such illness "as would diminish the exercise of his will
mental condition produced by remorse. power." To this we may add the mitigating circumstance in paragraph 6
of the same article, that of having acted upon an impulse so powerful
After a careful study of the record, we are convinced that the appellant as naturally to have produced passion or obfuscation. The accused
is not an imbecile. According to the evidence, during his marriage of evidently killed his wife in a fit of jealousy.
about 16 years, he has not done anything or conducted himself in
anyway so as to warrant an opinion that he was or is an imbecile. He With the presence of two mitigating circumstances without any
regularly and dutifully cultivated his farm, raised five children, and aggravating circumstance to offset them, at first we thought of the
supported his family and even maintained in school his children of possible applicability of the provisions of article 64, paragraph 5 of the
Revised Penal Code for the purpose of imposing the penalty next lower with a view to executive clemency after appellant has served an
to that prescribed by article 246 for parricide, which is reclusion appreciable amount of confinement.
perpetuato death. It will be observed however, that article 64 refers to
In conclusion, we find the appellant guilty of parricide and we hereby
the application of penalties which contain three periods whether it be a
affirm the judgment of the lower court with the modification that the
single divisible penalty or composed of three different penalties, each
appellant will be credited with one-half of any preventive imprisonment
one of which forms a period in accordance with the provisions of articles
he has undergone. Appellant will pay costs.
76 and 77, which is not true in the present case where the penalty
applicable for parricide is composed only of two indivisible penalties. On Following the attitude adopted and the action taken by this same court
the other hand, article 63 of the same Code refers to the application of in the two cases above cited, and believing that the appellant is entitled
indivisible penalties whether it be a single divisible penalty, or two to a lighter penalty, this case should be brought to the attention of the
indivisible penalties like that of reclusion perpetua to death. It is Chief Executive who, in his discretion may reduce the penalty to that
therefore clear that article 63 is the one applicable in the present case. next lower to reclusion perpetua to death or otherwise apply executive
clemency in the manner he sees fit.
Paragraph 2, rule 3 of said article 63 provides that when the commission
of the act is attended by some mitigating circumstance and there is no Moran, Bengzon, C. J., Paras, Feria, Pablo, Tuason, Reyes, and Jugo,
aggravating circumstance, the lesser penalty shall be applied. JJ., concur.
Interpreting a similar legal provision the Supreme Court in the case
of United States vs. Guevara (10 Phil. 37), involving the crime of
parricide, in applying article 80, paragraph 2 (rule 3 of the old Penal PADILLA, J.:
And even though the court should take into consideration the presence
of two mitigating circumstances of a qualifying nature, which it can not
afford to overlook, without any aggravating one, the penalty could not be Footnotes
reduced to the next lower to that imposed by law, because, according to
1 Decision of Supreme Court of Spain of November 21, 1891; 47 Jur.
a ruling of the court of Spain, article 80 above-mentioned does not
Crim., 413.
contain a precept similar to that contained in Rule 5 of article 81 (now
Rule 5, art. 64 of the Rev. Penal Code.) (Decision of September 30, 2 Decision of Supreme Court of Spain of April 20, 1911; 86 Jur. Crim.,
1879.) 94, 97.
Yet, in view of the excessive penalty imposed, the strict application of SECOND DIVISION
which is inevitable and which, under the law, must be sustained, this
[G.R. No. 141066. February 17, 2005]
court now resorts to the discretional power conferred by paragraph 2 of
article 2 of the Penal Code; and. EVANGELINE LADONGA, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
Therefore, we affirm the judgment appealed from with costs, and hereby
order that a proper petition be filed with the executive branch of the DECISION
Government in order that the latter, if it be deemed proper in the exercise
of the prerogative vested in it by the sovereign power, may reduce the AUSTRIA-MARTINEZ, J.:
Then, in the case of People vs. Castaeda (60 Phil. 604), another May 17, 1999, of the Court of Appeals in CA-G.R. CR No. 20443,
parricide case, the Supreme Court in affirming the judgment of affirming the Decision dated August 24, 1996, of the Regional Trial Court
conviction sentencing defendant to reclusion perpetua, said that (RTC), Branch 3 of Bohol, in Criminal Case Nos. 7068, 7069 and 7070
notwithstanding the numerous mitigating circumstances found to exist, convicting her of violation of B.P. Blg. 22, otherwise known as The
inasmuch as the penalty for parricide as fixed by article 246 of the Bouncing Checks Law.
reason that the account of the accused with the United Coconut Planters for each of them, and a fine in the amount of P9,075.55, equivalent to
Bank, Tagbilaran Branch, had already been closed, to the damage and the amount of UCPB Check No. 284743;
Acts committed contrary to the provisions of Batas Pambansa to one (1) year and a fine of P12, 730.00, equivalent to the amount of
The accusatory portions of the Informations in Criminal Case Nos. 7069 3. In Criminal Case No. 7070, with (sic) an imprisonment of one year for
and 7070 are similarly worded, except for the allegations concerning the each of them and a fine of P8,496.55 equivalent to the amount of UCPB
number, date and amount of each check, that is: Check No. 106136;
(a) Criminal Case No. 7069 - UCPB Check No. 284744 dated July 22, 4. That both accused are further ordered to jointly and solidarily pay and
1990 in the amount of P12,730.00;[3] reimburse the complainant, Mr. Alfredo Oculam, the sum of P15,000.00
representing actual expenses incurred in prosecuting the instant
(b) Criminal Case No. 7070 UCPB Check No. 106136 dated July 22, cases; P10,000.00 as attorneys fee; and the amount of P30,302.10
1990 in the amount of P8,496.55.[4] which is the total value of the three (3) subject checks which bounced;
but without subsidiary imprisonment in case of insolvency.
The cases were consolidated and jointly tried. When arraigned on June
26, 1991, the two accused pleaded not guilty to the crimes charged.[5] With Costs against the accused.
Tagbilaran City, Bohol;[7] sometime in May 1990, the Ladonga spouses hand, petitioner brought the case to the Court of Appeals, arguing that
obtained a P9,075.55 loan from him, guaranteed by United Coconut the RTC erred in finding her criminally liable for conspiring with her
Planters Bank (UCPB) Check No. 284743, post dated to dated July 7, husband as the principle of conspiracy is inapplicable to B.P. Blg.
1990 issued by Adronico;[8] sometime in the last week of April 1990 and 22which is a special law; moreover, she is not a signatory of the checks
during the first week of May 1990, the Ladonga spouses obtained an and had no participation in the issuance thereof.[17]
While admitting that the checks issued by Adronico bounced because to cases involving violations of B.P. Blg. 22. Lastly, it ruled that the fact
there was no sufficient deposit or the account was closed, the Ladonga that petitioner did not make and issue or sign the checks did not
spouses claimed that the checks were issued only to guarantee the exculpate her from criminal liability as it is not indispensable that a co-
obligation, with an agreement that Oculam should not encash the checks conspirator takes a direct part in every act and knows the part which
everyone performed. The Court of Appeals underscored that in subject to the provisions of this Code. This Code shall be supplementary
conspiracy the act of one conspirator could be held to be the act of the to such laws, unless the latter should specially provide the contrary.
other.
The article is composed of two clauses. The first provides that offenses
Petitioner sought reconsideration of the decision but the Court of which in the future are made punishable under special laws are not
Appeals denied the same in a Resolution dated November 16, 1999.[22] subject to the provisions of the RPC, while the second makes the RPC
supplementary to such laws. While it seems that the two clauses are
Hence, the present petition.
contradictory, a sensible interpretation will show that they can perfectly
Petitioner presents to the Court the following issues for resolution: be reconciled.
1. WHETHER OR NOT THE PETITIONER WHO WAS NOT THE The first clause should be understood to mean only that the special
DRAWER OR ISSUER OF THE THREE CHECKS THAT BOUNCED penal laws are controlling with regard to offenses therein specifically
BUT HER CO-ACCUSED HUSBAND UNDER THE LATTERS punished. Said clause only restates the elemental rule of statutory
ACCOUNT COULD BE HELD LIABLE FOR VIOLATIONS OF BATAS construction that special legal provisions prevail over general
PAMBANSA BILANG22 AS CONSPIRATOR. ones.[24]Lex specialis derogant generali. In fact, the clause can be
considered as a superfluity, and could have been eliminated altogether.
2. ANCILLARY TO THE MAIN ISSUE ARE THE FOLLOWING ISSUES: The second clause contains the soul of the article. The main idea and
purpose of the article is embodied in the provision that the "code shall
A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN
be supplementary" to special laws, unless the latter should specifically
VIOLATIONS OF BATAS PAMBANSA BILANG 22 BY INVOKING THE
provide the contrary.
LAST SENTENCE OF ARTICLE 10 OF THE REVISED PENAL CODE
WHICH STATES: The appellate courts reliance on the cases of People vs. Parel,[25] U.S.
vs. Ponte,[26] and U.S. vs. Bruhez[27] rests on a firm basis. These
Art. 10. Offenses not subject of the provisions of this Code. Offenses
cases involved the suppletory application of principles under the then
which are or in the future may be punished under special laws are not
Penal Code to special laws. People vs. Parel is concerned with the
subject to the provisions of this Code. This Code shall be supplementary
application of Article 22[28] of the Code to violations of Act No. 3030,
to such laws, unless the latter should specially provide the contrary.
the Election Law, with reference to the retroactive effect of penal laws if
B. WHETHER OR NOT THE CASES CITED BY THE HONORABLE they favor the accused. U.S. vs. Ponte involved the application of Article
COURT OF APPEALS IN AFFIRMING IN TOTO THE CONVICTION OF 17[29] of the same Penal Code, with reference to the participation of
PETITIONER AS CONSPIRATOR APPLYING THE SUPPLETORY principals in the commission of the crime of misappropriation of public
CHARACTER OF THE REVISED PENAL CODE TO SPECIAL LAWS funds as defined and penalized by Act No. 1740. U.S. vs.
LIKE B.P. BLG. 22 IS APPLICABLE.[23] Bruhez covered Article 45[30] of the same Code, with reference to the
confiscation of the instruments used in violation of Act No. 1461, the
Petitioner staunchly insists that she cannot be held criminally liable for
Opium Law.
violation of B.P. Blg. 22 because she had no participation in the drawing
and issuance of the three checks subject of the three criminal cases, a B.P. Blg. 22 does not expressly proscribe the suppletory application of
fact proven by the checks themselves. She contends that the Court of the provisions of the RPC. Thus, in the absence of contrary provision
Appeals gravely erred in applying the principle of conspiracy, as defined in B.P. Blg. 22, the general provisions of the RPC which, by their nature,
under the RPC, to violations of B.P. Blg. 22. She posits that the are necessarily applicable, may be applied suppletorily. Indeed, in the
application of the principle of conspiracy would enlarge the scope of the recent case of Yu vs. People,[31] the Court applied suppletorily the
statute and include situations not provided for or intended by the provisions on subsidiary imprisonment under Article 39[32] of the RPC
lawmakers, such as penalizing a person, like petitioner, who had no to B.P. Blg. 22.
participation in the drawing or issuance of checks.
The suppletory application of the principle of conspiracy in this case is
The Office of the Solicitor General disagrees with petitioner and echoes analogous to the application of the provision on principals under Article
the declaration of the Court of Appeals that some provisions of the 17 in U.S. vs. Ponte. For once conspiracy or action in concert to achieve
Revised Penal Code, especially with the addition of the second sentence a criminal design is shown, the act of one is the act of all the
in Article 10, are applicable to special laws. It submits that B.P. conspirators, and the precise extent or modality of participation of each
Blg. 22 does not provide any prohibition regarding the applicability in a of them becomes secondary, since all the conspirators are
suppletory character of the provisions of the Revised Penal Code to it. principals.[33]
Article 10 of the RPC reads as follows: All these notwithstanding, the conviction of the petitioner must be set
aside.
ART. 10. Offenses not subject to the provisions of this Code. Offenses
which are or in the future may be punishable under special laws are not
Article 8 of the RPC provides that a conspiracy exists when two or more on the weakness of the evidence for the defense. The proof against him
persons come to an agreement concerning the commission of a felony must survive the test of reason; the strongest suspicion must not be
and decide to commit it. To be held guilty as a co-principal by reason of permitted to sway judgment. The conscience must be satisfied that on
conspiracy, the accused must be shown to have performed an overt act the defense could be laid the responsibility for the offense charged; that
in pursuance or furtherance of the complicity.[34] The overt act or acts not only did he perpetrate the act but that it amounted to a crime. What
of the accused may consist of active participation in the actual is required then is moral certainty.
commission of the crime itself or may consist of moral assistance to his
Verily, it is the role of the prosecution to prove the guilt of the appellant
co-conspirators by moving them to execute or implement the criminal
beyond reasonable doubt in order to overcome the constitutional
plan.[35]
presumption of innocence.
In the present case, the prosecution failed to prove that petitioner
In sum, conviction must rest on hard evidence showing that the accused
performed any overt act in furtherance of the alleged conspiracy. As
is guilty beyond reasonable doubt of the crime charged. In criminal
testified to by the lone prosecution witness, complainant Alfredo
cases, moral certainty -- not mere possibility -- determines the guilt or
Oculam, petitioner was merely present when her husband, Adronico,
the innocence of the accused. Even when the evidence for the defense
signed the check subject of Criminal Case No. 7068.[36] With respect to
is weak, the accused must be acquitted when the prosecution has not
Criminal Case Nos. 7069-7070, Oculam also did not describe the details
proven guilt with the requisite quantum of proof required in all criminal
of petitioners participation. He did not specify the nature of petitioners
cases. (Citations omitted)[41]
involvement in the commission of the crime, either by a direct act of
participation, a direct inducement of her co-conspirator, or cooperating All told, the prosecution failed to establish the guilt of the petitioner with
in the commission of the offense by another act without which it would moral certainty. Its evidence falls short of the quantum of proof required
not have been accomplished. Apparently, the only semblance of overt for conviction. Accordingly, the constitutional presumption of the
act that may be attributed to petitioner is that she was present when the petitioners innocence must be upheld and she must be acquitted.
first check was issued. However, this inference cannot be stretched to
mean concurrence with the criminal design. WHEREFORE, the instant petition is GRANTED. The assailed Decision,
dated May 17, 1999, of the Court of Appeals in CA-G.R. CR No. 20443
Conspiracy must be established, not by conjectures, but by positive and affirming the Decision, dated August 24, 1996, of the Regional Trial
conclusive evidence.[37] Conspiracy transcends mere companionship Court (Branch 3), Bohol, in Criminal Case Nos. 7068, 7069 and 7070
and mere presence at the scene of the crime does not in itself amount convicting the petitioner of violation of B.P. Blg. 22 is hereby
to conspiracy.[38] Even knowledge, acquiescence in or agreement to REVERSED and SET ASIDE. Petitioner Evangeline Ladonga is
cooperate, is not enough to constitute one as a party to a conspiracy, ACQUITTED of the charges against her under B.P. Blg. 22 for failure of
absent any active participation in the commission of the crime with a the prosecution to prove her guilt beyond reasonable doubt. No
view to the furtherance of the common design and purpose.[39] pronouncement as to costs.
[12] TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2 and third person not liable for the offense, but those articles which are not
4; TSN of January 28, 1992, Testimony of Alfredo Oculam, p. 2; Original subject of lawful commerce shall be destroyed.
Records, p. 125.
[31] G.R. No. 134172, September 20, 2004.
[13] TSN of August 23, 1993, Testimony of Evangeline Ladonga, pp. 7-
[32] ART. 39. Subsidiary penalty. If the convict has no property with
8, 11-12 and 15; TSN of December 20, 1993, Testimony of Adronico
which to meet the fine mentioned in paragraph 3 of the next preceding
Ladonga, p. 18.
article, he shall be subject to a subsidiary personal liability at the rate of
[14] TSN of August 23, 1993, Testimony of Evangeline Ladonga, p. 10; one day for each eight pesos, subject to the following rules:
TSN of December 20, 1993, Testimony of Adronico Ladonga, pp. 24-26.
1. If the principal penalty imposed be prision
[15] Original Records, p. 124. correccional or arresto and fine, he shall remain under confinement until
his fine referred in the preceding paragraph is satisfied, but his
[16] Id., p. 126. subsidiary imprisonment shall not exceed one-third of the term of the
sentence, and in no case shall it continue for more than one year, and
[17] Court of Appeals (CA) Rollo, p. 28.
no fraction or part of a day shall be counted against the prisoner.
[18] Rollo, p. 133.
2. When the principal penalty imposed be only a fine, the subsidiary
[19] No. 18260, January 27, 1923, 44 Phil. 437. imprisonment shall not exceed six months, if the culprit shall have been
prosecuted for a grave or less grave felony, and shall not exceed fifteen
[20] No. 5952, October 24, 1911, 20 Phil. 379.
days, if for a light felony.
[21] No. 9268, November 4, 1914, 28 Phil. 305.
3. When the principal penalty imposed is higher than prision
[22] Rollo, p. 39. correccional no subsidiary imprisonment shall be imposed upon the
culprit.
[23] Rollo, pp. 69-70.
4. If the principal penalty imposed is not to be executed by
[24] Bayan (Bagong Alyansang Makabayan) vs. Zamora, G.R. No.
confinement in a penal institution, but such penalty is of fixed duration,
138570, October 10, 2000, 342 SCRA 449, 483.
the convict, during the period of time established in the preceding rules,
[25] Note No. 19, supra. shall continue to suffer the same deprivation as those of which the
principal penalty consists.
[26] Note No. 20, supra.
5. The subsidiary personal liability which the convict may have
[27] Note No. 21, supra. suffered by reason of his insolvency shall not relieve him from the fine
in case his financial circumstances should improve.
[28] ART. 22. Retroactive effect of penal laws. Penal laws shall have a
retroactive effect insofar as they favor the person guilty of a felony, who [33] People vs. Felipe, G.R. No. 142505, December 11, 2003, 418
is not a habitual criminal, as this term is defined in Rule 5 of Article 62 SCRA 146, 176; People vs. Julianda, Jr., G.R. No. 128886, November
of this Code, although at the time of the publication of such laws a final 23, 2001, 370 SCRA 448, 469; People vs. Quinicio, G.R. No. 142430,
sentence has been pronounced and the convict is serving the same. September 13, 2001, 365 SCRA 252, 266.
[29] ART. 17. Principals. The following are considered principals: [34] People vs. Pickrell, G.R. No. 120409, October 23, 2003, 414 SCRA
19, 33; People vs. Bisda, G.R. No. 140895, July 17, 2003, 406 SCRA
1. Those who take a direct part in the execution of the act;
454, 473; People vs. Pagalasan, G.R. Nos. 131926 & 138991, June 18,
2. Those who directly force or induce others to commit it; 2003, 404 SCRA 275, 291.
[35] People vs. Caballero, G.R. Nos. 149028-30, April 2, 2003, 400
SCRA 424, 437; People vs. Ponce, G.R. No. 126254, September 29,
2000, 341 SCRA 352, 359-360.
[37] People vs. Tamayo, G.R. No. 138608, September 24, 2002, SCRA
540, 553; People vs. Melencion, G.R. No. 121902, March 26, 2001, 355
SCRA 113, 123.
[38] People vs. Leao, G.R. No. 138886, October 9, 2001, 366 SCRA
774; People vs. Compo, G.R. No. 112990, May 28, 2001, 358 SCRA
266, 272.
[39] People vs. Natividad, G.R. No. 151072, September 23, 2003, 411
SCRA 587, 595.
[40] People vs. Mandao, G.R. No. 135048, December 3, 2002, 393
SCRA 292.
G.R. No. 93028 July 29, 1994 Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the
deal that transpired between Lopez and the appellant. He also averred
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
that he was the one who confiscated the marijuana and took the marked
vs.
money from appellant. 5
MARTIN SIMON y SUNGA, respondent.
Sgt. Domingo Pejoro, for his part, declared that although he was part of
The Solicitor General for plaintiff-appellee.
the buy-bust team, he was stationed farthest from the rest of the other
Ricardo M.Sampang for accused-appellant. members, that is, around two hundred meters away from his
companions. He did not actually see the sale that transpired between
Lopez and appellant but he saw his teammates accosting appellant after
REGALADO, J.: the latter's arrest. He was likewise the one who conducted the custodial
investigation of appellant wherein the latter was apprised of his rights to
Herein accused-appellant Martin Simon y Sunga was charged on
remain silent, to information and to counsel. Appellant, however, orally
November 10, 1988 with a violation of Section 4, Article II of Republic
waived his right to counsel. 6
Act
No. 6425, as amended, otherwise known as the Dangerous Drugs Act Pejoro also claimed having prepared Exhibit "G", the "Receipt of
of 1972, under an indictment alleging that on or about October 22, 1988, Property Seized/Confiscated" which appellant signed, admitting therein
at Barangay Sto. Cristo, Guagua, Pampanga, he sold four tea bags of the confiscation of four tea bags of marijuana dried leaves in his
marijuana to a Narcotics Command (NARCOM) poseur-buyer in possession. Pejoro likewise informed the court below that, originally,
consideration of the sum of P40.00, which tea bags, when subjected to what he placed on the receipt was that only one marijuana leaf was
laboratory examination, were found positive for marijuana. 1 confiscated in exchange for P20.00. However, Lopez and Villaruz
corrected his entry by telling him to put "two", instead of "one" and "40",
Eventually arraigned with the assistance of counsel on March 2, 1989,
instead of "20". He agreed to the correction since they were the ones
after his rearrest following his escape from Camp Olivas, San Fernando,
who were personally and directly involved in the purchase of the
Pampanga where he was temporarily detained, 2 he pleaded not guilty.
marijuana and the arrest of appellant. 7
He voluntarily waived his right to a pre-trial conference, 3 after which
trial on the merits ensued and was duly concluded. Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined
appellant at 5:30 p.m. of the day after the latter's apprehension, and the
I
results were practically normal except for his relatively high blood
The evidence on record shows that a confidential informant, later pressure. The doctor also did not find any trace of physical injury on the
identified as a NARCOM operative, informed the police unit at Camp person of appellant. The next day, he again examined appellant due to
Olivas, San Fernando, Pampanga, of the illegal drug activities of a the latter's complaint of
certain "Alyas Pusa" at Sto. Cristo, Guagua, Pampanga. Capt. Francisco gastro-intestinal pain. In the course of the examination, Dr. Calara
Bustamante, Commanding Officer of the 3rd Narcotics Regional Unit in discovered that appellant has a history of peptic ulcer, which causes him
the camp, then formed a buy-bust team composed of Sgt. Buenaventura to experience abdominal pain and consequently vomit blood. In the
Lopez, Pfc. Virgilio Villaruz and afternoon, appellant came back with the same complaint but, except for
Sgt. Domingo Pejoro, all members of the same unit. After securing the gastro-intestinal pain, his physical condition remained normal. 8
xxx xxx xxx to be imposed on appellant. That issue has likewise been resolved in
the cited case of People vs. Moran, et al., ante., thus:
Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of
Prohibited Drugs. The penalty of reclusion perpetua to death and a . . . . The plain precept contained in article 22 of the Penal Code,
fine ranging from five hundred thousand pesos to ten million pesos shall declaring the retroactivity of penal laws in so far as they are favorable to
be imposed upon any person who, unless authorized by law, shall sell, persons accused of a felony, would be useless and nugatory if the courts
administer, deliver, give away to another, distribute, dispatch in transit of justice were not under obligation to fulfill such duty, irrespective of
whether or not the accused has applied for it, just as would also all paragraph of Section 20, however, is its specific mandate, above
provisions relating to the prescription of the crime and the penalty. quoted, that the penalty shall instead depend upon the quantity of the
drug subject of the criminal transaction. 59 Accordingly, by way of
If the judgment which could be affected and modified by the reduced
exception to Article 77 of the Code and to subserve the purpose of
penalties provided in Republic Act No. 7659 has already become final
Section 20 of Republic Act No. 7659, each of the aforesaid component
and executory or the accused is serving sentence thereunder, then
penalties shall be considered as a principal imposable penalty
practice, procedure and pragmatic considerations would warrant and
depending on the quantity of the drug involved. Thereby, the modifying
necessitate the matter being brought to the judicial authorities for relief
circumstances will not altogether be disregarded. Since each
under a writ of habeas corpus. 56
component penalty of the total complex penalty will have to be imposed
2. Probably through oversight, an error on the matter of imposable separately as determined by the quantity of the drug involved, then the
penalties appears to have been committed in the drafting of the modifying circumstances can be used to fix the proper period of that
aforesaid law; thereby calling for and necessitating judicial reconciliation component penalty, as shall hereafter be explained.
and craftsmanship.
It would, therefore, be in line with the provisions of Section 20 in the
As applied to the present case, Section 4 of Republic Act No. 6425, as context of our aforesaid disposition thereon that, unless there are
now further amended, imposes the penalty of reclusion perpetua to compelling reasons for a deviation, the quantities of the drugs
death and a fine ranging from P500,000.00 to P10,000,000.00 upon any enumerated in its second paragraph be divided into three, with the
person who shall unlawfully sell, administer, deliver, give away, resulting quotient, and double or treble the same, to be respectively the
distribute, dispatch in transit or transport any prohibited drug. That bases for allocating the penalty proportionately among the three
penalty, according to the amendment to Section 20 of the law, shall be aforesaid periods according to the severity thereof. Thus, if the
applied if what is involved is 750 grams or more of indian hemp or marijuana involved is below 250 grams, the penalty to be imposed shall
marijuana; otherwise, if the quantity involved is less, the penalty shall be prision correccional; from 250 to 499 grams, prision mayor; and 500
range from prision correccional to reclusion perpetua depending upon to
the quantity. 749 grams, reclusion temporal. Parenthetically, fine is imposed as a
conjunctive penalty only if the penalty is reclusion perpetua to death. 60
In other words, there is here an overlapping error in the provisions on
the penalty of reclusion perpetua by reason of its dual imposition, that Now, considering the minimal quantity of the marijuana subject of the
is, as the maximum of the penalty where the marijuana is less than 750 case at bar, the penalty of prision correccional is consequently indicated
grams, and also as the minimum of the penalty where the marijuana but, again, another preliminary and cognate issue has first to be
involved is 750 grams or more. The same error has been committed with resolved.
respect to the other prohibited and regulated drugs provided in said
4. Prision correccional has a duration of 6 months and 1 day to 6 years
Section 20. To harmonize such conflicting provisions in order to give
and, as a divisible penalty, it consists of three periods as provided in the
effect to the whole law, 57 we hereby hold that the penalty to be imposed
text of and illustrated in the table provided by Article 76 of the Code. The
where the quantity of the drugs involved is less than the quantities stated
question is whether or not in determining the penalty to be imposed,
in the first paragraph shall range from prision correccional to reclusion
which is here to be taken from the penalty of prision correccional, the
temporal, and not reclusion perpetua. This is also concordant with the
presence or absence of mitigating, aggravating or other circumstances
fundamental rule in criminal law that all doubts should be construed in a
modifying criminal liability should be taken into account.
manner favorable to the accused.
We are not unaware of cases in the past wherein it was held that, in
3. Where, as in this case, the quantity of the dangerous drug is only 3.8
imposing the penalty for offenses under special laws, the rules on
grams, hence covered by the imposable range of penalties under the
mitigating or aggravating circumstances under the Revised Penal Code
second paragraph of Section 20, as now modified, the law provides that
cannot and should not be applied. A review of such doctrines as applied
the penalty shall be taken from said range "depending upon the
in said cases, however, reveals that the reason therefor was because
quantity" of the drug involved in the case. The penalty in said second
the special laws involved provided their own specific penalties for the
paragraph constitutes a complex one composed of three distinct
offenses punished thereunder, and which penalties were not taken from
penalties, that is, prision correccional,prision mayor, and reclusion
or with reference to those in the Revised Penal Code. Since the
temporal. In such a situation, the Code provides that each one shall form
penalties then provided by the special laws concerned did not provide
a period, with the lightest of them being the minimum, the next as the
for the minimum, medium or maximum periods, it would consequently
medium, and the most severe as the maximum period. 58
be impossible to consider the aforestated modifying circumstances
Ordinarily, and pursuant to Article 64 of the Code, the mitigating and whose main function is to determine the period of the penalty in
aggravating circumstances determine which period of such complex accordance with the rules in Article 64 of the Code.
penalty
shall be imposed on the accused. The peculiarity of the second
This is also the rationale for the holding in previous cases that the Republic Act No. 1700 (Anti-Subversion Act) where the penalties ranged
provisions of the Code on the graduation of penalties by degrees could from arresto mayor to
not be given supplementary application to special laws, since the death; 64 Presidential Decree No. 1612 (Anti-Fencing Decree) where
penalties in the latter were not components of or contemplated in the the penalties run from arresto mayor to prision mayor; and Presidential
scale of penalties provided by Article 71 of the former. The suppletory Decree
effect of the Revised Penal Code to special laws, as provided in Article No. 1866 (illegal possession and other prohibited acts involving
10 of the former, cannot be invoked where there is a legal or physical firearms), the penalties wherefor may involve prision mayor, reclusion
impossibility of, or a prohibition in the special law against, such temporal, reclusion perpetua or death.
supplementary application.
Another variant worth mentioning is Republic Act No. 6539
The situation, however, is different where although the offense is defined (Anti-Carnapping Act of 1972) where the penalty is imprisonment for not
in and ostensibly punished under a special law, the penalty therefor is less than 14 years and 8 months and not more than 17 years and 4
actually taken from the Revised Penal Code in its technical months, when committed without violence or intimidation of persons or
nomenclature and, necessarily, with its duration, correlation and legal force upon things; not less than 17 years and 4 months and not more
effects under the system of penalties native to said Code. When, as in than 30 years, when committed with violence against or intimidation of
this case, the law involved speaks of prision correccional, in its technical any person, or force upon things; and life imprisonment to death, when
sense under the Code, it would consequently be both illogical and the owner, driver or occupant of the carnapped vehicle is killed.
absurd to posit otherwise. More on this later.
With respect to the first example, where the penalties under the special
For the nonce, we hold that in the instant case the imposable penalty law are different from and are without reference or relation to those
under Republic Act No. 6425, as amended by Republic Act No. 7659, under the Revised Penal Code, there can be no suppletory effect of the
is prision correccional, to be taken from the medium period thereof rules for the application of penalties under said Code or by other relevant
pursuant to Article 64 of the Revised Penal Code, there being no statutory provisions based on or applicable only to said rules for felonies
attendant mitigating or aggravating circumstance. under the Code. In this type of special law, the legislative intendment is
clear.
5. At this juncture, a clarificatory discussion of the developmental
changes in the penalties imposed for offenses under special laws would The same exclusionary rule would apply to the last given example,
be necessary. Republic Act No. 6539. While it is true that the penalty of 14 years and
8 months to 17 years and 4 months is virtually equivalent to the duration
Originally, those special laws, just as was the conventional practice in
of the medium period of reclusion temporal,such technical term under
the United States but differently from the penalties provided in our
the Revised Penal Code is not given to that penalty for carnapping.
Revised Penal Code and its Spanish origins, provided for one specific
Besides, the other penalties for carnapping attended by the qualifying
penalty or a range of penalties with definitive durations, such as
circumstances stated in the law do not correspond to those in the Code.
imprisonment for one year or for one to five years but without division
The rules on penalties in the Code, therefore, cannot suppletorily apply
into periods or any technical statutory cognomen. This is the special law
to Republic Act No. 6539 and special laws of the same formulation.
contemplated in and referred to at the time laws like the Indeterminate
Sentence Law 61 were passed during the American regime. On the other hand, the rules for the application of penalties and the
correlative effects thereof under the Revised Penal Code, as well as
Subsequently, a different pattern emerged whereby a special law would
other statutory enactments founded upon and applicable to such
direct that an offense thereunder shall be punished under the Revised
provisions of the Code, have suppletory effect to the penalties under the
Penal Code and in the same manner provided therein. Inceptively, for
former Republic Act
instance, Commonwealth Act No. 303 62 penalizing non-payment of
No. 1700 and those now provided under Presidential Decrees Nos. 1612
salaries and wages with the periodicity prescribed therein, provided:
and 1866. While these are special laws, the fact that the penalties for
Sec. 4. Failure of the employer to pay his employee or laborer as offenses thereunder are those provided for in the Revised Penal code
required by section one of this Act, shall prima facie be considered a lucidly reveals the statutory intent to give the related provisions on
fraud committed by such employer against his employee or laborer by penalties for felonies under the Code the corresponding application to
means of false pretenses similar to those mentioned in article three said special laws, in the absence of any express or implicit proscription
hundred and fifteen, paragraph four, sub-paragraph two (a) of the in these special laws. To hold otherwise would be to sanction an
Revised Penal Code and shall be punished in the same manner as indefensible judicial truncation of an integrated system of penalties
therein provided. 63 under the Code and its allied legislation, which could never have been
the intendment of Congress.
Thereafter, special laws were enacted where the offenses defined
therein were specifically punished by the penalties as technically named In People vs. Macatanda, 65 a prosecution under a special law
and understood in the Revised Penal Code. These are exemplified by (Presidential Decree No. 533, otherwise known as the Anti-Cattle
Rustling Law of 1974), it was contended by the prosecution that Article the rules in Article 61 of the Code as applied to the scale of penalties in
64, paragraph 5, of the Revised Penal Code should not apply to said Article 71, are the stage of execution of the crime and the nature of the
special law. We said therein that participation of the accused. However, under paragraph 5 of Article 64,
when there are two or more ordinary mitigating circumstances and no
We do not agree with the Solicitor General that P.D. 533 is a special
aggravating circumstance, the penalty shall be reduced by one degree.
law entirely distinct from and unrelated to the Revised Penal Code. From
Also, the presence of privileged mitigating circumstances, as provided
the nature of the penalty imposed which is in terms of the classification
in Articles 67 and 68, can reduce the penalty by one or two degrees, or
and duration of penalties as prescribed in the Revised Penal
even more. These provisions of Articles 64(5), 67 and 68 should not
Code, which is not for penalties as are ordinarily imposed in special
apply in toto in the determination of the proper penalty under the
laws, the intent seems clear that P.D. 533 shall be deemed as an
aforestated second paragraph of section 20 of Republic Act No. 6425,
amendment of the Revised Penal Code, with respect to the offense of
to avoid anomalous results which could not have been contemplated by
theft of large cattle (Art. 310) or otherwise to be subject to applicable
the legislature.
provisions thereof such as Article 104 of the Revised Penal Code . . . .
Article 64 of the same Code should, likewise, be applicable, . . . . Thus, paragraph 5 of Article 61 provides that when the law prescribes a
(Emphasis supplied.) penalty in some manner not specially provided for in the four preceding
paragraphs thereof, the courts shall proceed by analogy therewith.
More particularly with regard to the suppletory effect of the rules on
Hence, when the penalty prescribed for the crime consists of one or two
penalties in the Revised Penal Code to Republic Act No. 6425, in this
penalties to be imposed in their full extent, the penalty next lower in
case involving Article 63(2) of the Code, we have this more recent
degree shall likewise consist of as many penalties which follow the
pronouncement:
former in the scale in Article 71. If this rule were to be applied, and since
. . . Pointing out that as provided in Article 10 the provisions of the the complex penalty in this
Revised Penal Code shall be "supplementary" to special laws, this Court case consists of three discrete penalties in their full extent, that is,
held that where the special law expressly grants to the court discretion prision correccional, prision mayor and reclusion temporal, then one
in applying the penalty prescribed for the offense, there is no room for degree lower would be arresto menor, destierro and arresto mayor.
the application of the provisions of the Code . . . . There could, however, be no further reduction by still one or two
degrees, which must each likewise consist of three penalties, since only
The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, the penalties of fine and public censure remain in the scale.
contains no explicit grant of discretion to the Court in the application of
the penalty prescribed by the law. In such case, the court must be The Court rules, therefore, that while modifying circumstances may be
guided by the rules prescribed by the Revised Penal Code concerning appreciated to determine the periods of the corresponding penalties, or
the application of penalties which distill the "deep legal thought and even reduce the penalty by degrees, in no case should such graduation
centuries of experience in the administration of criminal laws." of penalties reduce the imposable penalty beyond or lower than prision
(Emphasis ours.) 66 correccional. It is for this reason that the three component penalties in
the second paragraph of Section 20 shall each be considered as an
Under the aforestated considerations, in the case of the Dangerous independent principal penalty, and that the lowest penalty should in any
Drugs Act as now amended by Republic Act No. 7659 by the event be prision correccional in order not to depreciate the seriousness
incorporation and prescription therein of the technical penalties defined of drug offenses. Interpretatio fienda est ut res magis valeat quam
in and constituting integral parts of the three scales of penalties in the pereat. Such interpretation is to be adopted so that the law may continue
Code, 67 with much more reason should the provisions of said Code on to have efficacy rather than fail. A perfect judicial solution cannot be
the appreciation and effects of all attendant modifying circumstances forged from an imperfect law, which impasse should now be the concern
apply in fixing the penalty. Likewise, the different kinds or classifications of and is accordingly addressed to Congress.
of penalties and the rules for graduating
such penalties by degrees should have supplementary effect on 6. The final query is whether or not the Indeterminate Sentence Law is
Republic Act No. 6425, except if they would result in absurdities as will applicable to the case now before us. Apparently it does, since drug
now be explained. offenses are not included in nor has appellant committed any act which
would put him within the exceptions to said law and the penalty to be
While not squarely in issue in this case, but because this aspect is imposed does not involve reclusion perpetua or death, provided, of
involved in the discussion on the role of modifying circumstances, we course, that the penalty as ultimately resolved will exceed one year of
have perforce to lay down the caveat that mitigating circumstances imprisonment. 68 The more important aspect, however, is how the
should be considered and applied only if they affect the periods and indeterminate sentence shall be ascertained.
the degrees of the penalties within rational limits.
It is true that Section 1 of said law, after providing for indeterminate
Prefatorily, what ordinarily are involved in the graduation and sentence for an offense under the Revised Penal Code, states that "if
consequently determine the degree of the penalty, in accordance with the offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall What irresistibly emerges from the preceding disquisition, therefore, is
not exceed the maximum fixed by said law and the minimum shall not that under the concurrence of the principles of literal interpretation,
be less than the minimum term prescribed by the same." We hold that which have been rationalized by comparative decisions of this Court; of
this quoted portion of the section indubitably refers to an offense under historical interpretation, as explicated by the antecedents of the law and
a special law wherein the penalty imposed was not taken from and is related contemporaneous legislation; and of structural interpretation,
without reference to the Revised Penal Code, as discussed in the considering the interrelation of the penalties in the Code as
preceding illustrations, such that it may be said that the "offense is supplemented by Act No. 4103 in an integrated scheme of penalties, it
punished" under that law. follows that the minimum of the indeterminate sentence in this case shall
be the penalty next lower to that prescribed for the offense. Thereby we
There can be no sensible debate that the aforequoted rule on
shall have interpreted the seeming ambiguity in Section 1 of Act No.
indeterminate sentence for offenses under special laws was necessary
4103 in such a way as to harmonize laws with laws, which is the best
because of the nature of the former type of penalties under said laws
mode of interpretation. 71
which were not included or contemplated in the scale of penalties in
Article 71 of the Code, hence there could be no minimum "within the The indeterminate Sentence Law is a legal and social measure of
range of the penalty next lower to that prescribed by the Code for the compassion, and should be liberally interpreted in favor of the
offense," as is the rule for felonies therein. In the illustrative examples of accused. 72 The "minimum" sentence is merely a period at which, and
penalties in special laws hereinbefore provided, this rule applied, and not before, as a matter of grace and not of right, the prisoner may merely
would still apply, only to the first and last examples. Furthermore, be allowed to serve the balance of his sentence outside of his
considering the vintage of Act No. 4103 as earlier noted, this holding is confinement. 73 It does not constitute the totality of the penalty since
but an application and is justified under the rule of contemporanea thereafter he still has to continue serving the rest of his sentence under
expositio. 69 set conditions. That minimum is only the period when the convict's
eligibility for parole may be considered. In fact, his release on parole
We repeat, Republic Act No. 6425, as now amended by Republic Act
may readily be denied if he is found unworthy thereof, or his
No. 7659, has unqualifiedly adopted the penalties under the Revised
reincarceration may be ordered on legal grounds, even if he has served
Penal Code in their technical terms, hence with their technical
the minimum sentence.
signification and effects. In fact, for purposes of determining
the maximum of said sentence, we It is thus both amusing and bemusing if, in the case at bar, appellant
have applied the provisions of the amended Section 20 of said law to should be begrudged the benefit of a minimum sentence within the
arrive at prision correccional and Article 64 of the Code to impose the range of arresto mayor, the penalty next lower to prision
same in the medium period. Such offense, although provided for in a correccional which is the maximum range we have fixed through the
special law, is now in effect punished by and under the Revised Penal application of Articles 61 and 71 of the Revised Penal Code. For, with
Code. Correlatively, to determine the minimum, we must apply the first fealty to the law, the court may set the minimum sentence at 6 months
part of the aforesaid Section 1 which directs that "in imposing a prison of arresto mayor, instead of 6 months and 1 day of prision correccional.
sentence for an offense punished by the Revised Penal Code, or its The difference, which could thereby even involve only one day, is hardly
amendments, the court shall sentence the accused to an indeterminate worth the creation of an overrated tempest in the judicial teapot.
sentence the maximum term of which shall be that which, in view of the
ACCORDINGLY, under all the foregoing premises, the judgment of
attending circumstances, could be properly imposedunder the rules of
conviction rendered by the court a quo against accused-appellant Martin
said Code, and the minimum which shall be within the range of
Simon y Sunga is AFFIRMED, but with the MODIFICATION that he
the penalty next lower to that prescribed by the Code for the offense."
should be, as he hereby is, sentenced to serve an indeterminate penalty
(Emphasis ours.)
of six (6) months of arresto mayor, as the minimum, to six (6) years
A divergent pedantic application would not only be out of context but of prision correccional, as the maximum thereof.
also an admission of the hornbook maxim that qui haeret in litera haeret
SO ORDERED.
in cortice. Fortunately, this Court has never gone only skin-deep in its
construction of Act. No. 4103 by a mere literal appreciation of its Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug,
provisions. Thus, with regard to the phrase in Section 2 thereof Kapunan and Mendoza, JJ., concur.
excepting from its coverage "persons convicted of
offenses punished with death penalty or life imprisonment," we have Bellosillo, J., is on leave.
held that what is considered is the penalty actually imposed and not the
penalty imposable under the law, 70and that reclusion perpetua is
likewise embraced therein although what the law states is "life
imprisonment".
Separate Opinions and none other, as a crime and is punished by a penalty which is
included in the classification of Penalties in Chapter II, Title III of Book I
thereof.
DAVIDE, JR., J., concurring and dissenting:
On the other hand, an offense is considered punished under any other
I am still unable to agree with the view that (a) in appropriate cases law (or special law) if it is not defined and penalized by the Revised
where the penalty to be imposed would beprision correccional pursuant Penal Code but by such other law.
to the second paragraph of Section 20 of R.A. No. 6425, as amended
It is thus clear that an offense is punished by the Revised Penal Code if
by Section 17 of R.A. No. 7659, the sentence to be meted out, applying
both its definition and the penalty therefor are found in the said Code,
the Indeterminate Sentence Law (Act No. 4103, as amended), should
and it is deemed punished by a special law if its definition and the penalty
be that whose minimum is within the range of the penalty next lower, i.e.,
therefor are found in the special law. That the latter imports or borrows
arresto mayor; and (b) the presence of two or more mitigating
from the Revised Penal Code its nomenclature of penalties does not
circumstances not offset by any mitigating circumstances or of a
make an offense in the special law punished by or punishable under the
privileged mitigating circumstance shall not reduce the penalty by one
Revised Penal Code. The reason is quite simple. It is still the special law
or two degrees if the penalty to be imposed, taking into account the
that defines the offense and imposes a penalty therefor, although it
quantity of the dangerous drugs involved, would be prision correccional.
adopts the Code's nomenclature of penalties. In short, the mere use by
Simply put, this rule would allow the reduction from reclusion I do not think that as to the second paragraph of Section 20 of the
temporal if it is the penalty to be imposed on the basis of the quantity Dangerous Drugs Act, as amended by Section 17 of R.A. No. 7659, we
of the drugs involved by two degrees, or to prision correccional, if can be at liberty to apply the Revised Penal Code in one aspect and not
there are two or more mitigating circumstances and no aggravating to apply it in another.
circumstance is present (paragraph 5, Article 64, Revised Penal Code)
or if there is a privileged mitigating circumstances of, say, minority Feliciano and Quiason, JJ., concur.
I find the justification for the rule to be arbitrary and unfair. It is arbitrary
because within the same second paragraph involving the same range of
penalty, we both allow and disallow the application of Article 64(5),
Article 68, and Article 69 of the Revised Penal Code. The reason for the
disallowance, viz., in order not to depreciate the seriousness of drug
offenses, is unconvincing because Section 20 of the Dangerous Drugs
Act, as amended by R.A.
No. 7659, has in fact "depreciated" the seriousness of drug offenses by
providing quantity as basis for the determination of the proper penalty
and limiting fine only to cases punishable by reclusion perpetua to
death. It is unfair because an accused who is found guilty of possessing
MORE dangerous
drugs say 500 to 749 grams of marijuana, in which case the penalty
to be imposed would be reclusion temporal may only be sentenced to
six (6) months and one (1) day of prision correccional minimum because
of privileged mitigating circumstances. Yet, an accused who is found
guilty of possession of only one (1) gram of marijuana in which case
the penalty to be imposed is prision correccional would not be entitled
to a reduction thereof even if he has the same number of privileged
mitigating circumstances as the former has.
1. Upon a person under fifteen but over nine years of age, who is not
exempted from liability by reason of the court having declared that he
acted with discernment, a discretionary penalty shall be imposed, but
always lower by two degrees at least than that prescribed by law for the
crime which he committed.
2. Upon a person over fifteen and under eighteen years of age the
penalty next lover than that prescribed by law shall be imposed, but
always in the proper period.
G.R. No. L-35748 December 14, 1931 to the complaining husband, lending it his support. Domingo Joaquin
acceded to it, and on May 20, 1930, filed a motion for the dismissal of
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
his complaint. In consideration of this petition, the justice of the peace of
vs.
Paombong dismissed the adultery case commenced against the
ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants.
accused, and cancelled the bonds given by them, with the costs against
Teofilo Mendoza for appellants. the complainant.
Attorney-General Jaranilla for appellee.
The accused then left the barrio of Masocol and went to live in that of
Santo Nio, in the same municipality of Paombong.
VILLA-REAL, J.: About November 20, 1930, the accused Romana Silvestre met her son
by her former marriage, Nicolas de la Cruz, in the barrio of Santo Nio,
Martin Atienza and Romana Silvestre appeal to this court from the and under pretext of asking him for some nipa leaves, followed him
judgment of the Court of First Instance of Bulacan convicting them upon home to the village of Masocol, and remained there. The accused,
the information of the crime of arson as follows: The former as principal Martin Atienza, who had continued to cohabit with said Romana
by direct participation, sentenced to fourteen years, eight months, and Silvestre, followed her and lived in the home of Nicolas de la Cruz. On
one day of cadena temporal, in accordance with paragraph 2 of article the night of November 25, 1930, while Nicolas de la Cruz and his wife,
550, Penal Code; and the latter as accomplice, sentenced to six years Antonia de la Cruz, were gathered together with the appellants herein
and one day of presidio mayor; and both are further sentenced to the after supper, Martin Atienza told said couple to take their furniture out of
accessories of the law, and to pay each of the persons whose houses the house because he was going to set fire to it. Upon being asked by
were destroyed by the fire, jointly and severally, the amount set forth in Nicolas and Antonia why he wanted to set fire to the house, he answered
the information, with costs. that that was the only way he could be revenged upon the people of
Masocol who, he said, had instigated the charge of adultery against him
Counsel appointed by the court to defend the accused- appellants de
and his codefendant, Romana Silvestre. As Martin Atienza was at that
oficio, after delivering his argument, prayed for the affirmance of the
time armed with a pistol, no one dared say anything to him, not even
judgment with reference to the appellant Martin Atienza, and makes the
Romana Silvestre, who was about a meter away from her codefendant.
following assignments of error with reference to Romana Silvestre, to
Alarmed at what Martin Atienza had said, the couple left the house at
wit:
once to communicate with the barrio lieutenant, Buenaventura Ania, as
1. The lower court erred in convincing Romana Silvestre as accomplice to what they had just heard Martin Atienza say; but they had hardly gone
of the crime charged in the information. a hundred arms' length when they heard cries of "Fire! Fire!" Turning
back they saw their home in flames, and ran back to it; but seeing that
2. Finally, the court erred in not acquitting said defendant from the
the fire had assumed considerable proportions, Antonia took refuge in
information upon the ground of insufficient evidence, or at the least, of
the schoolhouse with her 1 year old babe in her arms, while Nicolas went
reasonable doubt.
to the home of his parents-in-law, took up the furniture he had deposited
The following facts were proved at the hearing beyond a reasonable there, and carried it to the schoolhouse. The fire destroyed about forty-
doubt: eight houses. Tomas Santiago coming from the barrio artesian well, and
Tomas Gonzalez, teacher at the barrio school of Masocol, and Felipe
Romana Silvestre, wife of Domingo Joaquin by her second marriage,
Clemente, an old man 61 years of age, coming from their homes, to the
cohabited with her codefendant Martin Atienza from the month of March,
house on fire, saw Martin Atienza going away from the house where the
1930, in the barrio of Masocol, municipality of Paombong, Province of
fire started, and Romana Silvestre leaving it.lawphil.net
Bulacan. On May 16, 1930, the complaining husband, Domingo
Joaquin, filed with the justice of the peace for that municipality, a sworn As stated in the beginning, counsel appointed by this court to defend the
complaint for adultery, supported by affidavits of Gerardo Cabigao and accused-appellant de oficio, prays for the affirmance of the judgment
Castor de la Cruz (Exhibit B). On the same date, May 16, 1930, the said appealed from with reference to defendant Martin Atienza. The facts
accused were arrested on a warrant issued by said justice of the peace. related heretofore, proved beyond a reasonable doubt at the hearing,
On the 20th of the month, they were released on bail, each giving a justify this petition of the de oficio counsel, and establish beyond a
personal bond of P6,000. Pending the preliminary investigation of the reasonable doubt said defendant's guilt of arson as charged, as principal
case, the two defendants begged the municipal president of Paombong, by direct participation.
Francisco Suerte Felipe, to speak to the complaint, Domingo Joaquin,
With respect to the accused-appellant Romana Silvestre, the only
urging him to withdraw the complaint, the two accused binding
evidence of record against her are: That, being married, she lived
themselves to discontinue cohabitation, and promising not to live again
adulterously with her codefendant Martin Atienza, a married man; that
in the barrio of Masocol; Martin Atienza voluntarily signed the promise
both were denounced for adultery by Domingo Joaquin, Romana
(Exhibit A). The municipal president transmitted the defendants' petition
Silvestre's second husband; that in view of the petition of the accused,
who promised to discontinue their life together, and to leave the barrio 2. Any person who shall set fire to any inhabited house or any building
of Masocol, and through the good offices of the municipal president of in which people are accustomed to meet together, without knowing
Paombong, the complaining husband asked for the dismissal of the whether or not such building or house was occupied at the time, or any
complaint; that in pursuance of their promise, both of the accused went freight train in motion, if the damage caused in such cases shall exceed
to lived in the barrio of Santo Nio, in the same municipality; that under six thousand two hundred and fifty pesetas.
pretext for some nipa leaves from her son by her former marriage,
While the defendant indeed knew that besides himself and his
Nicolas de la Cruz, who had gone to the barrio of Santo Nio, Romana
codefendant, Romana Silvestre, there was nobody in De la Cruz's house
Silvestre followed him to his house in the barrio of Masocol on November
at the moment of setting fire to it, he cannot be convicted merely arson
23, 1930, and remained there; that her codefendant, Martin Atienza
less serious than what the trial court sentenced him for, inasmuch as
followed her, and stayed with his coaccused in the same house; that on
that house was the means of destroying the others, and he did not know
the night of November 25, 1930, at about 8 o'clock, while all were
whether these were occupied at the time or not. If the greater
gathered together at home after supper, Martin Atienza expressed his
seriousness of setting fire to an inhabited house, when the incendiary
intention of burning the house as the only means of taking his revenge
does not know whether there are people in it at the time, depends upon
on the Masocol resident, who had instigated Domingo Joaquin to file the
the danger to which the inmates are exposed, not less serious is the
complaint for adultery against them, which compelled them to leave the
arson committed by setting fire to inhabited houses by means of another
barrio of Masocol; that Romana Silvestre listened to her codefendant's
inhabited house which the firebrand knew to be empty at the moment of
threat without raising a protest, and did not give the alarm when the latter
committing the act, if he did not know whether there were people or not
set fire to the house. Upon the strength of these facts, the court below
in the others, inasmuch as the same danger exists.
found her guilty of arson as accomplice.
With the evidence produced at the trial, the accused-appellant Martin
Article 14 of the Penal Code, considered in connection with article 13,
Atienza might have been convicted of the crime of arson in the most
defines an accomplice to be one who does not take a direct part in the
serious degree provided for in article 549 of the Penal Code, if the
commission of the act, who does not force or induce other to commit it,
information had alleged that at the time of setting fire to the house, the
nor cooperates in the commission of the act by another act without which
defendant knew that the other houses were occupied, taking into
it would not have been accomplished, yet cooperates in the execution
account that barrio residents are accustomed to retire at the tolling of
of the act by previous or simultaneous actions.
the bell for the souls in purgatory, i.e., at 8 o'clock at night.
Now then, which previous or simultaneous acts complicate Romana
For all the foregoing considerations, we are of the opinion and so hold,
Silvestre in the crime of arson committed by her codefendant Martin
that: (1) Mere passive presence at the scene of another's crime, mere
Atienza? Is it her silence when he told the spouses, Nicolas de la Cruz
silence and failure to give the alarm, without evidence of agreement or
and Antonia de la Cruz, to take away their furniture because he was
conspiracy, do not constitute the cooperation required by article 14 of
going to set fire to their house as the only means of revenging himself
the Penal Code for complicity in the commission of the crime witnessed
on the barrio residents, her passive presence when Martin Atienza set
passively, or with regard to which one has kept silent; and (2) he who
fire to the house, where there is no evidence of conspiracy or
desiring to burn the houses in a barrio, without knowing whether there
cooperation, and her failure to give the alarm when the house was
are people in them or not, sets fire to one known to be vacant at the
already on fire?
time, which results in destroying the rest, commits the crime of arson,
The complicity which is penalized requires a certain degree of defined and penalized in article 550, paragraph 2, Penal Code.
cooperation, whether moral, through advice, encouragement, or
By virtue wherefore, the judgment appealed from is modified as follows:
agreement, or material, through external acts. In the case of the
It is affirmed with reference to the accused-appellant Martin Atienza, and
accused-appellant Romana Silvestre, there is no evidence of moral or
reversed with reference to the accused-appellant Romana Silvestre,
material cooperation, and none of an agreement to commit the crime in
who is hereby acquitted with
question. Her mere presence and silence while they are simultaneous
one-half of the costs de oficio. So ordered.
acts, do not constitute cooperation, for it does not appear that they
encouraged or nerved Martin Atienza to commit the crime of arson; and Avancea, C.J., Johnson, Street, Malcolm, Villamor, Ostrand,
as for her failure to give the alarm, that being a subsequent act it does Romualdez, and Imperial, JJ., concur.
not make her liable as an accomplice.
(To) this testimony of the rebuttal witness belies partly, if not in full, the As already indicated earlier, the offense committed by appellants was
testimony of accused Nemesio Talingdan. (Pp. 29A-30A, Annex of murder qualified by treachery. It being obvious that appellants
Appellants' Brief.) deliberately chose nighttime to suddenly and without warning assault
their victim, taking advantage of their number and arms, it is manifest
Coming now to the particular case of appellant Teresa Domogma, as to
that they employed treachery to insure success in attaining their
whom the Solicitor General has submitted a recommendation of
malevolent objective. In addition, it is indisputable that appellants acted
acquittal, We find that she is not as wholly innocent in law as she
with evident premeditation. Talingdan made the threat to kill Bernardo
appears to the Counsel of the People. It is contended that there is no
Thursday night, then he met with his co-accused to work out their
evidence proving that she actually joined in the conspiracy to kill her
conspiracy Friday and again on Saturday evening just before the actual
husband because there is no showing of 'actual cooperation" on her part
shooting. In other words, they had motive Talingdan's taking up the
with her co-appellants in their culpable acts that led to his death. If at all,
cudgels for his paramour, Teresa and enough time to meditate, and
what is apparent, it is claimed, is "mere cognizance, acquiescence or
desist, if they were not resolved to proceed with their objective. Finally, deserted several times their family home to live with and continue with
they committed the offense in the dwelling of the offended party. her immoral relations with appellant Talingdan with whom at one time
she cohabited for more than three (3) weeks. Her patient husband had
In these premises, the crime committed by the male appellants being
to look for her and to beg her to return each time she left the family
murder, qualified by treachery, and attended by the generic aggravating
abode for the embrace of her lover.
circumstances of evident premeditation and that the offense was
committed in the dwelling of the offended party, the Court has no We should believe Corazon's statement that between 10 and 11 o'clock
alternative under the law but to impose upon them the capital penalty. Friday morning, she saw her mother, appellant Teresa, meeting with her
However, as to appellant Teresa, she is hereby found guilty only as an other co-appellants in a small hut owned by her father some 300 to 400
accessory to the same murder. meters away from the latter's house near the creek where she was then
washing clothes; that she heard one of the conspirators say "Could he
WHEREFORE, with the above finding of guilt beyond reasonable doubt
elude a bullet?"; that when her mother noticed her presence, her mother
of the appellants Nemesio Talingdan, Magellan Tobias, Augusto Berras
shoved her away saying, "You tell your father that we will kill him"; that
and Pedro Bides of the crime of murder with two aggravating
in the evening of the following day, Saturday, June 24, 1967, while she
circumstances, without any mitigating circumstance to offset them, they
was cooking supper in their house, she saw her mother go down the
are each hereby sentenced to DEATH to be executed in accordance
stairs and meet the other appellants in the yard about 3 to 4 meters from
with law. Guilty beyond reasonable doubt as accessory to the same
where she was in the "batalan"; that she heard them conversing in
murder, appellant Teresa Domogma is hereby sentenced to suffer the
subdued tones; that she was able to recognize all of them by the light
indeterminate penalty of five (5) years of prision correccional as
coming from the kitchen lamp through the open "batalan"; that she
minimum to eight (8) years of prision mayor as maximum, with the
knows all of them very well as they are all residents of their barrio and
accessory penalties of the law. In all other respects, the judgment of the
she used to see them almost everyday; that she noted that appellants
trial court is affirmed, with costs against appellants.
were armed with long guns; that their meeting did not last long; that after
Barredo, Muoz Palma, Aquino, Concepcion, Jr., Santos, Fernandez about 2 minutes her mother, appellant Teresa, came up the house and
and Guerrero, JJ., concur. proceed to her room while the other appellants hid under an avocado
tree nearby; that when supper was ready she called her parents to eat;
Antonio, Fernando, JJ., took no part. that her father did not heed her call but continued working on a plow
while her mother excused herself by saying she would first put her small
baby to sleep; that she (Corazon) ate alone after which she again called
her parents to eat; that about this time she informed her father about the
presence of persons downstairs but her father paid no heed to what she
Separate Opinions
said; that her father proceeded to the kitchen and sat on the floor near
the door while Corazon stayed nearby watching him; that at the that
moment her father was shot from below the stairs of the "batalan"; that
MAKASIAR, J., dissenting:
the four accused then went up the stairs of the "batalan" with their long
I dissent insofar as the liability of the accused Teresa Domogma who guns and, upon seeing that her father was still alive, appellants
should be convicted, not merely as an accessory, but of parricide as Talingdan and Tobias fired at him again; that when she (Corazon) tried
principal and meted the death penalty, is concerned. A marriage to call for help, appellant Bides warned her saying "You call for help and
certificate is not indispensable to establish the fact of marriage; because I will kill you"; and that thereafter, the assailants fled towards the east.
the presumption that the deceased and the accused Teresa were
The foregoing testimony of 13-year old Corazon should be accorded
married subsists by reason of the fact that they had been living together
belief in the same way that credence was given to her statement that,
for about thirteen (13) years as evidenced by the birth of the child-
upon her mother's inquiry immediately after the shooting as to whether
witness Corazon, who was 12 years old at the time her father was killed
she recognized the assailants of her father, she (Corazon) readily told
on June 24, 1967 by the accused-appellants, and who was 13 years of
her mother that she Identified appellants Talingdan, Tobias, Berras and
age when she testified. They have other children aside from Corazon.
Bides as the culprits; for which reason her mother warned her "Don't tell
That appellant Teresa is a co-conspirator, not merely an accessory after it to anyone. I will kill you if you tell this to somebody."
the fact has been clearly demonstrated by the testimony of her own
On Thursday or two days before Bernardo was shot, he and Teresa had
daughter, Corazon, who declared categorically that she plotted with her
a quarrel during which Bernardo slapped Teresa several times by
co-appellants the assassination of her own husband whom she betrayed
reason of which Teresa left the house and sought the help of the police.
time and time again by her repeated illicit relations with her co-accused
Shortly thereafter appellant Talingdan came and called Bernardo to
Nemesio Talingdan, a town policeman and their neighbor. The record is
come down. When Bernardo ignored him because Talingdan was a
abundant with evidence that Teresa, without a feeling for shame and
unnaturally lacking any concern for her minor children of tender age,
policeman and was then armed, appellant Talingdan left after warning We should believe Corazon's statement that between 10 and 11 o'clock
Bernardo that someday he would kill him. Friday morning, she saw her mother, appellant Teresa, meeting with her
other co-appellants in a small hut owned by her father some 300 to 400
Can there be a clearer demonstration of the active cooperation of Teresa
meters away from the latter's house near the creek where she was then
in the conspiracy against the life of her husband? The majority opinion
washing clothes; that she heard one of the conspirators say "Could he
admits that Teresa was a paramour of appellant Talingdan; hence, she
elude a bullet?"; that when her mother noticed her presence, her mother
wanted freedom from her husband, the victim, so that she could enjoy
shoved her away saying, "You tell your father that we will kill him"; that
the company of her lover, appellant Talingdan.
in the evening of the following day, Saturday, June 24, 1967, while she
From the evidence on record, appellant Teresa had no moral was cooking supper in their house, she saw her mother go down the
compunction in deserting her family and her children for the company of stairs and meet the other appellants in the yard about 3 to 4 meters from
her lover. As heretofore stated, she did this several times and continued where she was in the "batalan"; that she heard them conversing in
to do so until the violent death of her husband even as she was carrying subdued tones; that she was able to recognize all of them by the light
a six-month old baby in her womb, the paternity of which her husband coming from the kitchen lamp through the open "batalan"; that she
denied. knows all of them very well as they are all residents of their barrio and
she used to see them almost everyday; that she noted that appellants
CASTRO, CJ., concurring: were armed with long guns; that their meeting did not last long; that after
about 2 minutes her mother, appellant Teresa, came up the house and
Concurs, with the observations, however, that the evidence points to the
proceed to her room while the other appellants hid under an avocado
appellant Teresa Domogma as a co-principal and that she should
tree nearby; that when supper was ready she called her parents to eat;
therefore also be held guilty of murder and sentenced to death.
that her father did not heed her call but continued working on a plow
TEEHANKEE, J., concurring: while her mother excused herself by saying she would first put her small
baby to sleep; that she (Corazon) ate alone after which she again called
Concurs, but join in the partial dissent of Mr. Justice Makasiar insofar as
her parents to eat; that about this time she informed her father about the
the penal liability of the accused Teresa Domogma is concerned.
presence of persons downstairs but her father paid no heed to what she
Separate Opinions said; that her father proceeded to the kitchen and sat on the floor near
the door while Corazon stayed nearby watching him; that at the that
MAKASIAR, J., dissenting:
moment her father was shot from below the stairs of the "batalan"; that
I dissent insofar as the liability of the accused Teresa Domogma who the four accused then went up the stairs of the "batalan" with their long
should be convicted, not merely as an accessory, but of parricide as guns and, upon seeing that her father was still alive, appellants
principal and meted the death penalty, is concerned. A marriage Talingdan and Tobias fired at him again; that when she (Corazon) tried
certificate is not indispensable to establish the fact of marriage; because to call for help, appellant Bides warned her saying "You call for help and
the presumption that the deceased and the accused Teresa were I will kill you"; and that thereafter, the assailants fled towards the east.
married subsists by reason of the fact that they had been living together
The foregoing testimony of 13-year old Corazon should be accorded
for about thirteen (13) years as evidenced by the birth of the child-
belief in the same way that credence was given to her statement that,
witness Corazon, who was 12 years old at the time her father was killed
upon her mother's inquiry immediately after the shooting as to whether
on June 24, 1967 by the accused-appellants, and who was 13 years of
she recognized the assailants of her father, she (Corazon) readily told
age when she testified. They have other children aside from Corazon.
her mother that she Identified appellants Talingdan, Tobias, Berras and
That appellant Teresa is a co-conspirator, not merely an accessory after Bides as the culprits; for which reason her mother warned her "Don't tell
the fact has been clearly demonstrated by the testimony of her own it to anyone. I will kill you if you tell this to somebody."
daughter, Corazon, who declared categorically that she plotted with her
On Thursday or two days before Bernardo was shot, he and Teresa had
co-appellants the assassination of her own husband whom she betrayed
a quarrel during which Bernardo slapped Teresa several times by
time and time again by her repeated illicit relations with her co-accused
reason of which Teresa left the house and sought the help of the police.
Nemesio Talingdan, a town policeman and their neighbor. The record is
Shortly thereafter appellant Talingdan came and called Bernardo to
abundant with evidence that Teresa, without a feeling for shame and
come down. When Bernardo ignored him because Talingdan was a
unnaturally lacking any concern for her minor children of tender age,
policeman and was then armed, appellant Talingdan left after warning
deserted several times their family home to live with and continue with
Bernardo that someday he would kill him.
her immoral relations with appellant Talingdan with whom at one time
she cohabited for more than three (3) weeks. Her patient husband had Can there be a clearer demonstration of the active cooperation of Teresa
to look for her and to beg her to return each time she left the family in the conspiracy against the life of her husband? The majority opinion
abode for the embrace of her lover. admits that Teresa was a paramour of appellant Talingdan; hence, she
wanted freedom from her husband, the victim, so that she could enjoy
the company of her lover, appellant Talingdan.
Concurs, with the observations, however, that the evidence points to the
appellant Teresa Domogma as a co-principal and that she should
therefore also be held guilty of murder and sentenced to death.
Concurs, but join in the partial dissent of Mr. Justice Makasiar insofar as
the penal liability of the accused Teresa Domogma is concerned.
EDUARDO P. MANUEL, G.R. No. 165842
Petitioner,
Present: The prosecution adduced evidence that on July 28, 1975, Eduardo was
married to Rubylus Gaa before Msgr. Feliciano Santos in Makati, which
PUNO, J., Chairman,
was then still a municipality of the Province of Rizal.[4] He met the
AUSTRIA-MARTINEZ, - versus - CALLEJO, SR., private complainant Tina B. Gandalera in Dagupan City sometime in
January 1996. She stayed in Bonuan, Dagupan City for two days looking
TINGA, and for a friend. Tina was then 21 years old, a Computer Secretarial student,
while Eduardo was 39. Afterwards, Eduardo went to Baguio City to visit
CHICO-NAZARIO,* JJ.
her. Eventually, as one thing led to another, they went to a motel where,
Promulgated: despite Tinas resistance, Eduardo succeeded in having his way with her.
Eduardo proposed marriage on several occasions, assuring her that he
PEOPLE OF THE PHILIPPINES,
was single. Eduardo even brought his parents to Baguio City to meet
Respondent. November 29, 2005 Tinas parents, and was assured by them that their son was still single.
x-----------------------------------------------------------------------------------------x Tina finally agreed to marry Eduardo sometime in the first week of March
1996. They were married on April 22, 1996 before Judge Antonio C.
Reyes, the Presiding Judge of the RTC of Baguio City, Branch 61.[5] It
The couple was happy during the first three years of their married life.
Through their joint efforts, they were able to build their home in Cypress
Point, Irisan, Baguio City. However, starting 1999, Manuel started
Before us is a petition for review on certiorari of the Decision[1] of the
making himself scarce and went to their house only twice or thrice a
Court of Appeals (CA) in CA-G.R. CR No. 26877, affirming the
year. Tina was jobless, and whenever she asked money from Eduardo,
Decision[2] of the Regional Trial Court (RTC) of Baguio City, Branch 3,
he would slap her.[6] Sometime in January 2001, Eduardo took all his
convicting Eduardo P. Manuel of bigamy in Criminal Case No. 19562-R.
clothes, left, and did not return. Worse, he stopped giving financial
support.
After trial, the court rendered judgment on July 2, 2002 finding Eduardo
guilty beyond reasonable doubt of bigamy. He was sentenced to an On June 18, 2004, the CA rendered judgment affirming the decision of
indeterminate penalty of from six (6) years and ten (10) months, as the RTC with modification as to the penalty of the accused. It ruled that
minimum, to ten (10) years, as maximum, and directed to indemnify the the prosecution was able to prove all the elements of bigamy. Contrary
private complainant Tina Gandalera the amount of P200,000.00 by way to the contention of the appellant, Article 41 of the Family Code should
of moral damages, plus costs of suit.[9] apply. Before Manuel could lawfully marry the private complainant, there
should have been a judicial declaration of Gaas presumptive death as
the absent spouse. The appellate court cited the rulings of this Court
The trial court ruled that the prosecution was able to prove beyond in Mercado v. Tan[15]and Domingo v. Court of Appeals[16] to support
reasonable doubt all the elements of bigamy under Article 349 of the its ruling. The dispositive portion of the decision reads:
Revised Penal Code. It declared that Eduardos belief, that his first
marriage had been dissolved because of his first wifes 20-year absence,
even if true, did not exculpate him from liability for bigamy. Citing the WHEREFORE, in the light of the foregoing, the Decision promulgated
ruling of this Court in People v. Bitdu,[10] the trial court further ruled that on July 31, 2002 is hereby MODIFIED to reflect, as it hereby reflects,
even if the private complainant had known that Eduardo had been that accused-appellant is sentenced to an indeterminate penalty of two
previously married, the latter would still be criminally liable for bigamy. (2) years, four (4) months and one (1) day of prision correccional, as
minimum, to ten (10) years of prision mayor as maximum. Said Decision
Eduardo appealed the decision to the CA. He alleged that he was not
is AFFIRMED in all other respects.
criminally liable for bigamy because when he married the private
complainant, he did so in good faith and without any malicious intent. He
maintained that at the time that he married the private complainant, he
SO ORDERED.[17]
was of the honest belief that his first marriage no longer subsisted. He
insisted that conformably to Article 3 of the Revised Penal Code, there
must be malice for one to be criminally liable for a felony. He was not
motivated by malice in marrying the private complainant because he did
so only out of his overwhelming desire to have a fruitful marriage. He
posited that the trial court should have taken into account Article 390 of
Eduardo, now the petitioner, filed the instant petition for review on
the New Civil Code. To support his view, the appellant cited the rulings
certiorari, insisting that:
of this Court in United States v. Pealosa[11] and Manahan, Jr. v. Court
of Appeals.[12]
The Office of the Solicitor General (OSG) averred that Eduardos THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF
defense of good faith and reliance on the Courts ruling in United States LAW WHEN IT RULED THAT PETITIONERS FIRST WIFE CANNOT
v. Enriquez[13] were misplaced; what is applicable is Article 41 of the BE LEGALLY PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL
Family Code, which amended Article 390 of the Civil Code. Citing the CODE AS THERE WAS NO JUDICIAL DECLARATION OF
ruling of this Court in Republic v. Nolasco,[14] the OSG further posited PRESUMPTIVE DEATH AS PROVIDED FOR UNDER ARTICLE 41 OF
that as provided in Article 41 of the Family Code, there is a need for a THE FAMILY CODE.
judicial declaration of presumptive death of the absent spouse to enable
the present spouse to marry. Even assuming that the first marriage was
II In its comment on the petition, the OSG maintains that the decision of
the CA affirming the petitioners conviction is in accord with the law,
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF
jurisprudence and the evidence on record. To bolster its claim,
LAW WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS
the OSG cited the ruling of this Court in Republic v. Nolasco.[19]
MORAL DAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW.[18]
not he/she is still alive, shall be presumed dead for all purposes except any person who shall contract a second or subsequent marriage before
for succession, while the second paragraph refers to the rule on legal the former marriage has been legally dissolved, or before the absent
presumption of death with respect to succession. spouse has been declared presumptively dead by means of a judgment
rendered in the proper proceedings.
The petitioner asserts that the presumptive death of the absent spouse
arises by operation of law upon the satisfaction of two requirements: the The provision was taken from Article 486 of the Spanish Penal Code, to
specified period and the present spouses reasonable belief that the wit:
absentee is dead. He insists that he was able to prove that he had not
heard from his first wife since 1975 and that he had no knowledge of her
whereabouts or whether she was still alive; hence, under Article 41 of El que contrajere Segundo o ulterior matrimonio sin hallarse
the Family Code, the presumptive death of Gaa had arisen by operation legtimamente disuelto el anterior, ser castigado con la pena de prision
of law, as the two requirements of Article 390 of the Civil Code are mayor. xxx
present. The petitioner concludes that he should thus be acquitted of the
crime of bigamy.
The reason why bigamy is considered a felony is to preserve and ensure
the juridical tie of marriage established by law.[20] The phrase or before
The petitioner insists that except for the period of absences provided for the absent spouse had been declared presumptively dead by means of
in Article 390 of the Civil Code, the rule therein on legal presumptions a judgment rendered in the proper proceedings was incorporated in the
remains valid and effective. Nowhere under Article 390 of the Civil Code Revised Penal Code because the drafters of the law were of the
does it require that there must first be a judicial declaration of death impression that in consonance with the civil law which provides for the
before the rule on presumptive death would apply. He further asserts presumption of death after an absence of a number of years, the judicial
that contrary to the rulings of the trial and appellate courts, the declaration of presumed death like annulment of marriage should be a
requirement of a judicial declaration of presumptive death under Article justification for bigamy.[21]
41 of the Family Code is only a requirement for the validity of the
subsequent or second marriage.
For the accused to be held guilty of bigamy, the prosecution is burdened
to prove the felony: (a) he/she has been legally married; and (b) he/she
The petitioner, likewise, avers that the trial court and the CA erred in contracts a subsequent marriage without the former marriage having
awarding moral damages in favor of the private complainant. The private been lawfully dissolved. The felony is consummated on the celebration
complainant was a GRO before he married her, and even knew that he of the second marriage or subsequent marriage.[22] It is essential in the
was already married. He genuinely loved and took care of her and gave prosecution for bigamy that the alleged second marriage, having all the
her financial support. He also pointed out that she had an illicit essential requirements, would be valid were it not for the subsistence of
relationship with a lover whom she brought to their house. the first marriage.[23] Viada avers that a third element of the crime is
that the second marriage must be entered into with fraudulent
intent (intencion fraudulente) which is an essential element of a felony
by dolo.[24] On the other hand, Cuello Calon is of the view that there are
only two elements of bigamy: (1) the existence of a marriage that has prevail unless a reasonable doubt exists from a consideration of the
not been lawfully dissolved; and (2) the celebration of a second whole evidence.[34]
marriage. It does not matter whether the first marriage is void or voidable
because such marriages have juridical effects until lawfully dissolved by
a court of competent jurisdiction.[25] As the Court ruled in Domingo v. For one to be criminally liable for a felony by dolo, there must be a
Court of Appeals[26] and Mercado v. Tan,[27] under the Family Code of confluence of both an evil act and an evil intent. Actus non facit reum,
the Philippines, the judicial declaration of nullity of a previous marriage nisi mens sit rea.[35]
is a defense.
In the present case, the prosecution proved that the petitioner was
married to Gaa in 1975, and such marriage was not judicially declared
a nullity; hence, the marriage is presumed to subsist.[36] The
prosecution also proved that the petitioner married the private
In his commentary on the Revised Penal Code, Albert is of the same
complainant in 1996, long after the effectivity of the Family Code.
view as Viada and declared that there are three (3) elements of bigamy:
(1) an undissolved marriage; (2) a new marriage; and (3) fraudulent
intention constituting the felony of the act.[28] He explained that:
The petitioner is presumed to have acted with malice or evil intent when
he married the private complainant. As a general rule, mistake of fact or
good faith of the accused is a valid defense in a prosecution for a felony
This last element is not stated in Article 349, because it is undoubtedly
by dolo; such defense negates malice or criminal intent. However,
incorporated in the principle antedating all codes, and, constituting one
ignorance of the law is not an excuse because everyone is presumed to
of the landmarks of our Penal Code, that, where there is no willfulness
know the law. Ignorantia legis neminem excusat.
there is no crime. There is no willfulness if the subject
believes that the former marriage has been dissolved; and this must be
supported by very strong evidence, and if this be produced, the act shall
be deemed not to constitute a crime. Thus, a person who contracts a It was the burden of the petitioner to prove his defense that when he
second marriage in the reasonable and well-founded belief that his first married the private complainant in 1996, he was of the well-grounded
wife is dead, because of the many years that have elapsed since he has belief
had any news of her whereabouts, in spite of his endeavors to find her, that his first wife was already dead, as he had not heard from her for
cannot be deemed guilty of the crime of bigamy, because there is no more than 20 years since 1975. He should have adduced in evidence a
fraudulent intent which is one of the essential elements of the crime.[29] decision of a competent court declaring the presumptive death of his first
wife as required by Article 349 of the Revised Penal Code, in relation to
Article 41 of the Family Code. Such judicial declaration also constitutes
proof that the petitioner acted in good faith, and would negate criminal
intent on his part when he married the private complainant and, as a
As gleaned from the Information in the RTC, the petitioner is charged consequence, he could not be held guilty of bigamy in such case. The
with bigamy, a felony by dolo (deceit). Article 3, paragraph 2 of the petitioner, however, failed to discharge his burden.
Revised Penal Code provides that there is deceit when the act is
performed with deliberate intent. Indeed, a felony cannot exist without
intent. Since a felony by dolo is classified as an intentional felony, it is The phrase or before the absent spouse has been declared
deemed voluntary.[30] Although the words with malice do not appear in presumptively dead by means of a judgment rendered on the
Article 3 of the Revised Penal Code, such phrase is included in the word proceedings in Article 349 of the Revised Penal Code was not an
voluntary.[31] aggroupment of empty or useless words. The requirement for a
judgment of the presumptive death of the absent spouse is for the
benefit of the spouse present, as protection from the pains and the
Malice is a mental state or condition prompting the doing of an overt act consequences of a second marriage, precisely because he/she could
without legal excuse or justification from which another suffers be charged and convicted of bigamy if the defense of good faith based
injury.[32] When the act or omission defined by law as a felony is proved on mere testimony is found incredible.
to have been done or committed by the accused, the law presumes it to
have been intentional.[33] Indeed, it is a legal presumption of law that
every man intends the natural or probable consequence of his voluntary The requirement of judicial declaration is also for the benefit of the State.
act in the absence of proof to the contrary, and such presumption must Under Article II, Section 12 of the Constitution, the State shall protect
and strengthen the family as a basic autonomous social institution. The absentee shall not be presumed dead for the purpose of opening
Marriage is a social institution of the highest importance. Public policy, his succession till after an absence of ten years. If he disappeared after
good morals and the interest of society require that the marital relation the age of seventy-five years, an absence of five years shall be sufficient
should be surrounded with every safeguard and its severance only in in order that his succession may be opened.
the manner prescribed and the causes specified by law.[37] The laws
regulating civil marriages are necessary to serve the interest, safety,
good order, comfort or general welfare of the community and the parties Art. 391. The following shall be presumed dead for all purposes,
can waive nothing essential to the validity of the proceedings. A civil including the division of the estate among the heirs:
marriage anchors an ordered society by encouraging stable
relationships over transient ones; it enhances the welfare of the
community.
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for four years
since the loss of the vessel or aeroplane;
In a real sense, there are three parties to every civil marriage; two willing
spouses and an approving State. On marriage, the parties assume new (2) A person in the armed forces who has taken part in war, and has
relations to each other and the State touching nearly on every aspect of been missing for four years;
With the effectivity of the Family Code,[44] the period of seven years
Art. 390. After an absence of seven years, it being unknown whether or
under the first paragraph of Article 390 of the Civil Code was reduced to
not, the absentee still lives, he shall be presumed dead for all purposes,
four consecutive years. Thus, before the spouse present may contract a
except for those of succession.
subsequent marriage, he or she must institute summary proceedings for
the declaration of the presumptive death of the absentee
spouse,[45] without prejudice to the effect of the reappearance of the
absentee spouse. As explained by this Court in Armas v. Calisterio:[46]
superfluous and of no benefit to the petitioner. The Court stated that it
should not waste its valuable time and be made to perform a superfluous
In contrast, under the 1988 Family Code, in order that a subsequent
and meaningless act.[50] The Court also took note that a petition for a
bigamous marriage may exceptionally be considered valid, the following
declaration of the presumptive death of an absent spouse may even be
conditions must concur, viz.: (a) The prior spouse of the contracting
made in collusion with the other spouse.
party must have been absent for four consecutive years, or two years
where there is danger of death under the circumstances stated in Article
391 of the Civil Code at the time of disappearance; (b) the spouse
In Lukban v. Republic of the Philippines,[51] the Court declared that the
present has a well-founded belief that the absent spouse is already
words proper proceedings in Article 349 of the Revised Penal Code can
dead; and (c) there is, unlike the old rule, a judicial declaration of
only refer to those authorized by law such as Articles 390 and 391 of the
presumptive death of the absentee for which purpose the spouse
Civil Code which refer to the administration or settlement of the estate
present can institute a summary proceeding in court to ask for that
of a deceased person. In Gue v. Republic of the Philippines,[52] the
declaration. The last condition is consistent and in consonance with the
Court rejected the contention of the petitioner therein that, under Article
requirement of judicial intervention in subsequent marriages as so
390 of the Civil Code, the courts are authorized to declare the
provided in Article 41, in relation to Article 40, of the Family Code.
presumptive death of a person after an absence of seven years. The
Court reiterated its rulings in Szatraw, Lukban and Jones.
The above Article of the Family Code now clearly provides that for the
purpose of the present spouse contracting a second marriage, he or she On the second issue, the petitioner, likewise, faults the trial court and
must file a summary proceeding as provided in the Code for the the CA for awarding moral damages in favor of the private complainant.
declaration of the presumptive death of the absentee, without prejudice The petitioner maintains that moral damages may be awarded only in
to the latters reappearance. This provision is intended to protect the any of the cases provided in Article 2219 of the Civil Code, and bigamy
present spouse from a criminal prosecution for bigamy under Art. 349 of is not one of them. The petitioner asserts that the appellate court failed
the Revised Penal Code because with the judicial declaration that the to apply its ruling in People v. Bondoc,[63] where an award of moral
missing spouses presumptively dead, the good faith of the present damages for bigamy was disallowed. In any case, the petitioner
spouse in contracting a second marriage is already established.[58] maintains, the private complainant failed to adduce evidence to prove
moral damages.
for the settlement of his estate.[60] Before such declaration, it was held serious anxiety, besmirched reputation, wounded feelings, moral shock,
that the remarriage of the other spouse is bigamous even if done in good social humiliation, and similar injury. Though incapable of pecuniary
faith.[61] Justice Regalado opined that there were contrary views computation, moral damages may be recovered if they are the proximate
because of the ruling in Jones and the provisions of Article 83(2) of the result of the defendants wrongful act or omission.[65] An award for moral
damages requires the confluence of the following conditions: first, there corresponds to some others or resembling, in other respects, as in form,
must be an injury, whether physical, mental or psychological, clearly proportion, relation, etc.)[68]
sustained by the claimant; second, there must be culpable act or
omission factually established; third, the wrongful act or omission of the
defendant is the proximate cause of the injury sustained by the claimant; Indeed, bigamy is not one of those specifically mentioned in Article 2219
and fourth, the award of damages is predicated on any of the cases of the Civil Code in which the offender may be ordered to pay moral
stated in Article 2219 or Article 2220 of the Civil Code.[66] damages to the private complainant/offended party. Nevertheless, the
petitioner is liable to the private complainant for moral damages under
Article 2219 in relation to Articles 19, 20 and 21 of the Civil Code.
Moral damages may be awarded in favor of the offended party only in
criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7
of the Civil Code and analogous cases, viz.: According to Article 19, every person must, in the exercise of his rights
and in the performance of his act with justice, give everyone his due,
Art. 2219. Moral damages may be recovered in the following and
and observe honesty and good faith. This provision contains what is
analogous cases.
commonly referred to as the principle of abuse of rights, and sets certain
standards which must be observed not only in the exercise of ones rights
but also in the performance of ones duties. The standards are the
(1) A criminal offense resulting in physical injuries;
following: act with justice; give everyone his due; and observe honesty
(2) Quasi-delicts causing physical injuries; and good faith. The elements for abuse of rights are: (a) there is a legal
right or duty; (b) exercised in bad faith; and (c) for the sole intent of
(3) Seduction, abduction, rape, or other lascivious acts; prejudicing or injuring another.[69]
(5) Illegal or arbitrary detention or arrest; Article 20 speaks of the general sanctions of all other provisions of law
which do not especially provide for its own sanction. When a right is
(6) Illegal search;
exercised in a manner which does not conform to the standards set forth
(7) Libel, slander or any other form of defamation; in the said provision and results in damage to another, a legal wrong is
thereby committed for which the wrongdoer must be responsible.[70] If
(8) Malicious prosecution;
the provision does not provide a remedy for its violation, an action for
(9) Acts mentioned in article 309; damages under either Article 20 or Article 21 of the Civil Code would be
proper. Article 20 provides that every person who, contrary to law,
(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34
willfully or negligently causes damage to another shall indemnify the
and 35.
latter for the same. On the other hand, Article 21 provides that any
person who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the
The parents of the female seduced, abducted, raped, or abused, latter for damages. The latter provision
referred to in No. 3 of this article, may also recover moral damages. is adopted to remedy the countless gaps in the statutes which leave so
many victims of moral wrongs helpless, even though they have actually
suffered material and moral injury should vouchsafe adequate legal
The spouse, descendants, ascendants, and brothers and sisters may remedy for that untold number of moral wrongs which it is impossible for
bring the action mentioned in No. 9 of this article in the order named. human foresight to prove for specifically in the statutes. Whether or not
the principle of abuse of rights has been violated resulting in damages
under Article 20 or Article 21 of the Civil Code or other applicable
provisions of law depends upon the circumstances of each case.[71]
Thus, the law does not intend that moral damages should be awarded
in all cases where the aggrieved party has suffered mental anguish,
In the present case, the petitioner courted the private complainant and
fright, moral anxieties, besmirched reputation, wounded feelings, moral
proposed to marry her. He assured her that he was single. He even
shock, social humiliation and similar injury arising out of an act or
brought his parents to the house of the private complainant where he
omission of another, otherwise, there would not have been any reason
and his parents made the same assurance that he was single. Thus, the
for the inclusion of specific acts in Article 2219[67] and analogous cases
private complainant agreed to marry the petitioner, who even stated in
(which refer to those cases bearing analogy or resemblance,
the certificate of marriage that he was single. She lived with the The Court thus declares that the petitioners acts are against public policy
petitioner and dutifully performed her duties as his wife, believing all the as they undermine and subvert the family as a social institution, good
while that he was her lawful husband. For two years or so until the morals and the interest and general welfare of society.
petitioner heartlessly abandoned her, the private complainant had no
inkling that he was already married to another before they were married.
Because the private complainant was an innocent victim of the
petitioners perfidy, she is not barred from claiming moral damages.
Thus, the private complainant was an innocent victim of the petitioners Besides, even considerations of public policy would not prevent her from
chicanery and heartless deception, the fraud consisting not of a single recovery. As held in Jekshewitz v. Groswald:[75]
act alone, but a continuous series of acts. Day by day, he maintained
the appearance of being a lawful husband to the private complainant,
who Where a person is induced by the fraudulent representation of another
changed her status from a single woman to a married woman, lost the to do an act which, in consequence of such misrepresentation, he
consortium, attributes and support of a single man she could have believes to be neither illegal nor immoral, but which is in fact a criminal
married lawfully and endured mental pain and humiliation, being bound offense, he has a right of action against the person so inducing him for
to a man who it turned out was not her lawful husband.[72] damages sustained by him in consequence of his having done such act.
Burrows v. Rhodes, [1899] 1 Q.B. 816. In Cooper v. Cooper, 147 Mass.
370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a false
The Court rules that the petitioners collective acts of fraud and deceit representation by the defendant that he was divorced from his former
before, during and after his marriage with the private complainant were wife, whereby the plaintiff was induced to marry him, gave her a remedy
willful, deliberate and with malice and caused injury to the latter. That in tort for deceit. It seems to have been assumed that the fact that she
she did not sustain any physical injuries is not a bar to an award for had unintentionally violated the law or innocently committed a crime by
moral damages. Indeed, in Morris v. Macnab,[73] the New Jersey cohabiting with him would be no bar to the action, but rather that it might
Supreme Court ruled: be a ground for enhancing her damages. The injury to the plaintiff was
said to be in her being led by the promise to give the fellowship and
assistance of a wife to one who was not her husband and to assume
xxx The defendant cites authorities which indicate that, absent physical and act in a relation and condition that proved to be false and
injuries, damages for shame, humiliation, and mental anguish are not ignominious. Damages for such an injury were held to be recoverable in
recoverable where the actor is simply negligent. See Prosser, supra, at Sherman v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339,
p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all 343, 8 Am. Rep. 336.
recognize that where the wrong is willful rather than negligent, recovery
may be had for the ordinary, natural, and proximate consequences
though they consist of shame, humiliation, and mental anguish. See Furthermore, in the case at bar the plaintiff does not base her cause of
Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. action upon any transgression of the law by herself but upon the
Ct. 1936); Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, defendants misrepresentation. The criminal relations which followed,
579, 591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here innocently on her part, were but one of the incidental results of the
the defendants conduct was not merely negligent, but was willfully and defendants fraud for which damages may be assessed.
maliciously wrongful. It was bound to result in shame, humiliation, and
mental anguish for the plaintiff, and when such result did ensue the
plaintiff became entitled not only to compensatory but also to punitive [7] Actions for deceit for fraudulently inducing a woman to enter into the
damages. See Spiegel v. Evergreen Cemetery Co., supra; Kuzma v marriage relation have been maintained in other jurisdictions. Sears v.
Millinery Workers, etc., Local 24, supra. CF. Note, Exemplary Damages Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v.
in the Law of Torts, 70 Harv. L. Rev. 517 (1957). The plaintiff testified McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434,
that because of the defendants bigamous marriage to her and the 97 Am. Dec. 747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411.
attendant publicity she not only was embarrassed and ashamed to go Considerations of public policy would not prevent recovery where the
out but couldnt sleep but couldnt eat, had terrific headaches and lost circumstances are such that the plaintiff was conscious of no moral
quite a lot of weight. No just basis appears for judicial interference with turpitude, that her illegal action was induced solely by the defendants
the jurys reasonable allowance of $1,000 punitive damages on the first misrepresentation, and that she does not base her cause of action upon
count. See Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. any transgression of the law by herself. Such considerations
Div.[74] 1955). distinguish this case from cases in which the court has refused to lend
its aid to the enforcement of a contract illegal on its face or to one who
has consciously and voluntarily become a party to an illegal act upon
which the cause of action is founded. Szadiwicz v. Cantor, 257 Mass.
518, 520, 154 N.E. 251, 49 A. L. R. 958.[76]
Considering the attendant circumstances of the case, the Court finds the
award of P200,000.00 for moral damages to be just and reasonable.
SO ORDERED.
SECOND DIVISION The cases were consolidated and jointly tried. When arraigned on June
26, 1991, the two accused pleaded not guilty to the crimes charged.[5]
[G.R. No. 141066. February 17, 2005]
The prosecution presented as its lone witness complainant Alfredo
EVANGELINE LADONGA, petitioner, vs. PEOPLE OF THE
Oculam. He testified that: in 1989, spouses Adronico[6] and Evangeline
PHILIPPINES, respondent.
Ladonga became his regular customers in his pawnshop business in
DECISION Tagbilaran City, Bohol;[7] sometime in May 1990, the Ladonga spouses
obtained a P9,075.55 loan from him, guaranteed by United Coconut
AUSTRIA-MARTINEZ, J.: Planters Bank (UCPB) Check No. 284743, post dated to dated July 7,
1990 issued by Adronico;[8] sometime in the last week of April 1990 and
Petitioner Evangeline Ladonga seeks a review of the Decision,[1] dated
during the first week of May 1990, the Ladonga spouses obtained an
May 17, 1999, of the Court of Appeals in CA-G.R. CR No. 20443,
additional loan of P12,730.00, guaranteed by UCPB Check No. 284744,
affirming the Decision dated August 24, 1996, of the Regional Trial Court
post dated to dated July 26, 1990 issued by Adronico;[9] between May
(RTC), Branch 3 of Bohol, in Criminal Case Nos. 7068, 7069 and 7070
and June 1990, the Ladonga spouses obtained a third loan in the
convicting her of violation of B.P. Blg. 22, otherwise known as The
amount of P8,496.55, guaranteed by UCPB Check No. 106136, post
Bouncing Checks Law.
dated to July 22, 1990 issued by Adronico;[10] the three checks
The factual background of the case is as follows: bounced upon presentment for the reason CLOSED
ACCOUNT;[11] when the Ladonga spouses failed to redeem the check,
On March 27, 1991, three Informations for violation of B.P. Blg. 22 were
despite repeated demands, he filed a criminal complaint against
filed with the RTC, docketed as Criminal Case Nos. 7068 - 7070. The
them.[12]
Information in Criminal Case No. 7068 alleges as follows:
While admitting that the checks issued by Adronico bounced because
That, sometime in May or June 1990, in the City of Tagbilaran,
there was no sufficient deposit or the account was closed, the Ladonga
Philippines, and within the jurisdiction of this Honorable Court, the
spouses claimed that the checks were issued only to guarantee the
above-named accused, conspiring, confederating, and mutually helping
obligation, with an agreement that Oculam should not encash the checks
with one another, knowing fully well that they did not have sufficient
when they mature;[13] and, that petitioner is not a signatory of the
funds deposited with the United Coconut Planters Bank (UCPB),
checks and had no participation in the issuance thereof.[14]
Tagbilaran Branch, did then and there willfully, unlawfully, and
feloniously, draw and issue UCPB Check No. 284743 postdated July 7, On August 24, 1996, the RTC rendered a joint decision finding the
1990 in the amount of NINE THOUSAND SEVENTY-FIVE PESOS AND Ladonga spouses guilty beyond reasonable doubt of violating B.P. Blg.
FIFTY-FIVE CENTAVOS (P9,075.55), payable to Alfredo Oculam, and 22, the dispositive portion of which reads:
thereafter, without informing the latter that they did not have sufficient
Premises considered, this Court hereby renders judgment finding
funds deposited with the bank to cover up the amount of the check, did
accused Adronico Ladonga, alias Ronie, and Evangeline Ladonga guilty
then and there willfully, unlawfully and feloniously pass on, indorse, give
beyond reasonable doubt in the aforesaid three (3) criminal cases, for
and deliver the said check to Alfredo Oculam by way of rediscounting of
which they stand charged before this Court, and accordingly, sentences
the aforementioned checks; however, upon presentation of the check to
them to imprisonment and fine, as follows:
the drawee bank for encashment, the same was dishonored for the
reason that the account of the accused with the United Coconut Planters 1. In Criminal Case No. 7068, for (sic) an imprisonment of one (1) year
Bank, Tagbilaran Branch, had already been closed, to the damage and for each of them, and a fine in the amount of P9,075.55, equivalent to
prejudice of the said Alfredo Oculam in the aforestated amount. the amount of UCPB Check No. 284743;
Acts committed contrary to the provisions of Batas Pambansa 2. In Criminal Case No. 7069, for (sic) an imprisonment for each of them
Bilang 22.[2] to one (1) year and a fine of P12, 730.00, equivalent to the amount of
UCPB Check No. 284744; and,
The accusatory portions of the Informations in Criminal Case Nos. 7069
and 7070 are similarly worded, except for the allegations concerning the 3. In Criminal Case No. 7070, with (sic) an imprisonment of one year for
number, date and amount of each check, that is: each of them and a fine of P8,496.55 equivalent to the amount of UCPB
Check No. 106136;
(a) Criminal Case No. 7069 - UCPB Check No. 284744 dated July 22,
1990 in the amount of P12,730.00;[3] 4. That both accused are further ordered to jointly and solidarily pay and
reimburse the complainant, Mr. Alfredo Oculam, the sum of P15,000.00
(b) Criminal Case No. 7070 UCPB Check No. 106136 dated July 22,
representing actual expenses incurred in prosecuting the instant
1990 in the amount of P8,496.55.[4]
cases; P10,000.00 as attorneys fee; and the amount of P30,302.10
which is the total value of the three (3) subject checks which bounced; B. WHETHER OR NOT THE CASES CITED BY THE HONORABLE
but without subsidiary imprisonment in case of insolvency. COURT OF APPEALS IN AFFIRMING IN TOTO THE CONVICTION OF
PETITIONER AS CONSPIRATOR APPLYING THE SUPPLETORY
With Costs against the accused.
CHARACTER OF THE REVISED PENAL CODE TO SPECIAL LAWS
SO ORDERED.[15] LIKE B.P. BLG. 22 IS APPLICABLE.[23]
Adronico applied for probation which was granted.[16] On the other Petitioner staunchly insists that she cannot be held criminally liable for
hand, petitioner brought the case to the Court of Appeals, arguing that violation of B.P. Blg. 22 because she had no participation in the drawing
the RTC erred in finding her criminally liable for conspiring with her and issuance of the three checks subject of the three criminal cases, a
husband as the principle of conspiracy is inapplicable to B.P. Blg. fact proven by the checks themselves. She contends that the Court of
22which is a special law; moreover, she is not a signatory of the checks Appeals gravely erred in applying the principle of conspiracy, as defined
and had no participation in the issuance thereof.[17] under the RPC, to violations of B.P. Blg. 22. She posits that the
application of the principle of conspiracy would enlarge the scope of the
On May 17, 1999, the Court of Appeals affirmed the conviction of statute and include situations not provided for or intended by the
petitioner.[18] It held that the provisions of the penal code were made lawmakers, such as penalizing a person, like petitioner, who had no
applicable to special penal laws in the decisions of this Court in People participation in the drawing or issuance of checks.
vs. Parel, [19] U.S. vs. Ponte, [20] and U.S. vs. Bruhez.[21] It noted that
Article 10 of the Revised Penal Code itself provides that its provisions The Office of the Solicitor General disagrees with petitioner and echoes
shall be supplementary to special laws unless the latter provide the the declaration of the Court of Appeals that some provisions of the
contrary. The Court of Appeals stressed that since B.P. Blg. 22 does not Revised Penal Code, especially with the addition of the second sentence
prohibit the applicability in a suppletory character of the provisions of the in Article 10, are applicable to special laws. It submits that B.P.
Revised Penal Code (RPC), the principle of conspiracy may be applied Blg. 22 does not provide any prohibition regarding the applicability in a
to cases involving violations of B.P. Blg. 22. Lastly, it ruled that the fact suppletory character of the provisions of the Revised Penal Code to it.
that petitioner did not make and issue or sign the checks did not
Article 10 of the RPC reads as follows:
exculpate her from criminal liability as it is not indispensable that a co-
conspirator takes a direct part in every act and knows the part which ART. 10. Offenses not subject to the provisions of this Code. Offenses
everyone performed. The Court of Appeals underscored that in which are or in the future may be punishable under special laws are not
conspiracy the act of one conspirator could be held to be the act of the subject to the provisions of this Code. This Code shall be supplementary
other. to such laws, unless the latter should specially provide the contrary.
Petitioner sought reconsideration of the decision but the Court of The article is composed of two clauses. The first provides that offenses
Appeals denied the same in a Resolution dated November 16, 1999.[22] which in the future are made punishable under special laws are not
subject to the provisions of the RPC, while the second makes the RPC
Hence, the present petition.
supplementary to such laws. While it seems that the two clauses are
Petitioner presents to the Court the following issues for resolution: contradictory, a sensible interpretation will show that they can perfectly
be reconciled.
1. WHETHER OR NOT THE PETITIONER WHO WAS NOT THE
DRAWER OR ISSUER OF THE THREE CHECKS THAT BOUNCED The first clause should be understood to mean only that the special
BUT HER CO-ACCUSED HUSBAND UNDER THE LATTERS penal laws are controlling with regard to offenses therein specifically
ACCOUNT COULD BE HELD LIABLE FOR VIOLATIONS OF BATAS punished. Said clause only restates the elemental rule of statutory
PAMBANSA BILANG22 AS CONSPIRATOR. construction that special legal provisions prevail over general
ones.[24]Lex specialis derogant generali. In fact, the clause can be
2. ANCILLARY TO THE MAIN ISSUE ARE THE FOLLOWING ISSUES: considered as a superfluity, and could have been eliminated altogether.
The second clause contains the soul of the article. The main idea and
A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN
purpose of the article is embodied in the provision that the "code shall
VIOLATIONS OF BATAS PAMBANSA BILANG 22 BY INVOKING THE
be supplementary" to special laws, unless the latter should specifically
LAST SENTENCE OF ARTICLE 10 OF THE REVISED PENAL CODE
provide the contrary.
WHICH STATES:
The appellate courts reliance on the cases of People vs. Parel,[25] U.S.
Art. 10. Offenses not subject of the provisions of this Code. Offenses
vs. Ponte,[26] and U.S. vs. Bruhez[27] rests on a firm basis. These
which are or in the future may be punished under special laws are not
cases involved the suppletory application of principles under the then
subject to the provisions of this Code. This Code shall be supplementary
Penal Code to special laws. People vs. Parel is concerned with the
to such laws, unless the latter should specially provide the contrary.
application of Article 22[28] of the Code to violations of Act No. 3030,
the Election Law, with reference to the retroactive effect of penal laws if
they favor the accused. U.S. vs. Ponte involved the application of Article to conspiracy.[38] Even knowledge, acquiescence in or agreement to
17[29] of the same Penal Code, with reference to the participation of cooperate, is not enough to constitute one as a party to a conspiracy,
principals in the commission of the crime of misappropriation of public absent any active participation in the commission of the crime with a
funds as defined and penalized by Act No. 1740. U.S. vs. view to the furtherance of the common design and purpose.[39]
Bruhez covered Article 45[30] of the same Code, with reference to the
As the Court eloquently pronounced in a case of recent vintage, People
confiscation of the instruments used in violation of Act No. 1461, the
vs. Mandao:[40]
Opium Law.
To be sure, conspiracy is not a harmless innuendo to be taken lightly or
B.P. Blg. 22 does not expressly proscribe the suppletory application of
accepted at every turn. It is a legal concept that imputes culpability under
the provisions of the RPC. Thus, in the absence of contrary provision
specific circumstances; as such, it must be established as clearly as any
in B.P. Blg. 22, the general provisions of the RPC which, by their nature,
element of the crime. Evidence to prove it must be positive and
are necessarily applicable, may be applied suppletorily. Indeed, in the
convincing, considering that it is a convenient and simplistic device by
recent case of Yu vs. People,[31] the Court applied suppletorily the
which the accused may be ensnared and kept within the penal fold.
provisions on subsidiary imprisonment under Article 39[32] of the RPC
to B.P. Blg. 22. Criminal liability cannot be based on a general allegation of conspiracy,
and a judgment of conviction must always be founded on the strength of
The suppletory application of the principle of conspiracy in this case is
the prosecutions evidence. The Court ruled thus in People v. Legaspi,
analogous to the application of the provision on principals under Article
from which we quote:
17 in U.S. vs. Ponte. For once conspiracy or action in concert to achieve
a criminal design is shown, the act of one is the act of all the At most, the prosecution, realizing the weakness of its evidence against
conspirators, and the precise extent or modality of participation of each accused-appellant Franco, merely relied and pegged the latters criminal
of them becomes secondary, since all the conspirators are liability on its sweeping theory of conspiracy, which to us, was not
principals.[33] attendant in the commission of the crime.
All these notwithstanding, the conviction of the petitioner must be set The rule is firmly entrenched that a judgment of conviction must be
aside. predicated on the strength of the evidence for the prosecution and not
on the weakness of the evidence for the defense. The proof against him
Article 8 of the RPC provides that a conspiracy exists when two or more
must survive the test of reason; the strongest suspicion must not be
persons come to an agreement concerning the commission of a felony
permitted to sway judgment. The conscience must be satisfied that on
and decide to commit it. To be held guilty as a co-principal by reason of
the defense could be laid the responsibility for the offense charged; that
conspiracy, the accused must be shown to have performed an overt act
not only did he perpetrate the act but that it amounted to a crime. What
in pursuance or furtherance of the complicity.[34] The overt act or acts
is required then is moral certainty.
of the accused may consist of active participation in the actual
commission of the crime itself or may consist of moral assistance to his Verily, it is the role of the prosecution to prove the guilt of the appellant
co-conspirators by moving them to execute or implement the criminal beyond reasonable doubt in order to overcome the constitutional
plan.[35] presumption of innocence.
In the present case, the prosecution failed to prove that petitioner In sum, conviction must rest on hard evidence showing that the accused
performed any overt act in furtherance of the alleged conspiracy. As is guilty beyond reasonable doubt of the crime charged. In criminal
testified to by the lone prosecution witness, complainant Alfredo cases, moral certainty -- not mere possibility -- determines the guilt or
Oculam, petitioner was merely present when her husband, Adronico, the innocence of the accused. Even when the evidence for the defense
signed the check subject of Criminal Case No. 7068.[36] With respect to is weak, the accused must be acquitted when the prosecution has not
Criminal Case Nos. 7069-7070, Oculam also did not describe the details proven guilt with the requisite quantum of proof required in all criminal
of petitioners participation. He did not specify the nature of petitioners cases. (Citations omitted)[41]
involvement in the commission of the crime, either by a direct act of
participation, a direct inducement of her co-conspirator, or cooperating All told, the prosecution failed to establish the guilt of the petitioner with
in the commission of the offense by another act without which it would moral certainty. Its evidence falls short of the quantum of proof required
not have been accomplished. Apparently, the only semblance of overt for conviction. Accordingly, the constitutional presumption of the
act that may be attributed to petitioner is that she was present when the petitioners innocence must be upheld and she must be acquitted.
Conspiracy must be established, not by conjectures, but by positive and affirming the Decision, dated August 24, 1996, of the Regional Trial
conclusive evidence.[37] Conspiracy transcends mere companionship Court (Branch 3), Bohol, in Criminal Case Nos. 7068, 7069 and 7070
and mere presence at the scene of the crime does not in itself amount convicting the petitioner of violation of B.P. Blg. 22 is hereby
REVERSED and SET ASIDE. Petitioner Evangeline Ladonga is [20] No. 5952, October 24, 1911, 20 Phil. 379.
ACQUITTED of the charges against her under B.P. Blg. 22 for failure of
[21] No. 9268, November 4, 1914, 28 Phil. 305.
the prosecution to prove her guilt beyond reasonable doubt. No
pronouncement as to costs. [22] Rollo, p. 39.
Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur. [24] Bayan (Bagong Alyansang Makabayan) vs. Zamora, G.R. No.
138570, October 10, 2000, 342 SCRA 449, 483.
[1] Penned by Justice Buenaventura J. Guerrero (now retired) and [27] Note No. 21, supra.
concurred in by Justices Portia Alino-Hormachuelos and Eloy R. Bello
(now retired). [28] ART. 22. Retroactive effect of penal laws. Penal laws shall have a
retroactive effect insofar as they favor the person guilty of a felony, who
[2] Original Records, pp. 1-2. is not a habitual criminal, as this term is defined in Rule 5 of Article 62
of this Code, although at the time of the publication of such laws a final
[3] Id., p. 3.
sentence has been pronounced and the convict is serving the same.
[4] Id., p. 5.
[29] ART. 17. Principals. The following are considered principals:
[5] Id., pp. 29-31.
1. Those who take a direct part in the execution of the act;
[6] Also known as Ronie.
2. Those who directly force or induce others to commit it;
[7] TSN of December 3, 1991, Testimony of Alfredo Oculam, pp. 4-7.
3. Those who cooperate in the commission of the offense by another
[8] Id., pp. 16-21. act without which it would not have been accomplished.
[9] TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2-3. [30] ART. 45. Confiscation and forfeiture of the proceeds or instruments
of the crime. Every penalty imposed for the commission of a felony shall
[10] TSN of January 28, 1992, Testimony of Alfredo Oculam, pp. 1-2.
carry with it the forfeiture of the proceeds of the crime and the
[11] TSN of December 3, 1991, Testimony of Alfredo Oculam, p. 19; instruments or tools with which it was committed.
TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 1 and 3;
Such proceeds and instruments or tools shall be confiscated and
TSN of January 28, 1992, Testimony of Alfredo Oculam, p. 1; Original
forfeited in favor of the Government, unless they be the property of a
Records, p. 128.
third person not liable for the offense, but those articles which are not
[12] TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2 and subject of lawful commerce shall be destroyed.
4; TSN of January 28, 1992, Testimony of Alfredo Oculam, p. 2; Original
[31] G.R. No. 134172, September 20, 2004.
Records, p. 125.
[32] ART. 39. Subsidiary penalty. If the convict has no property with
[13] TSN of August 23, 1993, Testimony of Evangeline Ladonga, pp. 7-
which to meet the fine mentioned in paragraph 3 of the next preceding
8, 11-12 and 15; TSN of December 20, 1993, Testimony of Adronico
article, he shall be subject to a subsidiary personal liability at the rate of
Ladonga, p. 18.
one day for each eight pesos, subject to the following rules:
[33] People vs. Felipe, G.R. No. 142505, December 11, 2003, 418
SCRA 146, 176; People vs. Julianda, Jr., G.R. No. 128886, November
23, 2001, 370 SCRA 448, 469; People vs. Quinicio, G.R. No. 142430,
September 13, 2001, 365 SCRA 252, 266.
[34] People vs. Pickrell, G.R. No. 120409, October 23, 2003, 414 SCRA
19, 33; People vs. Bisda, G.R. No. 140895, July 17, 2003, 406 SCRA
454, 473; People vs. Pagalasan, G.R. Nos. 131926 & 138991, June 18,
2003, 404 SCRA 275, 291.
[35] People vs. Caballero, G.R. Nos. 149028-30, April 2, 2003, 400
SCRA 424, 437; People vs. Ponce, G.R. No. 126254, September 29,
2000, 341 SCRA 352, 359-360.
[37] People vs. Tamayo, G.R. No. 138608, September 24, 2002, SCRA
540, 553; People vs. Melencion, G.R. No. 121902, March 26, 2001, 355
SCRA 113, 123.
[38] People vs. Leao, G.R. No. 138886, October 9, 2001, 366 SCRA
774; People vs. Compo, G.R. No. 112990, May 28, 2001, 358 SCRA
266, 272.
[39] People vs. Natividad, G.R. No. 151072, September 23, 2003, 411
SCRA 587, 595.
[40] People vs. Mandao, G.R. No. 135048, December 3, 2002, 393
SCRA 292.
REGALADO, J.:
In an information dated and filed on May 31, 1989 in the Regional Trial
Court of Quezon City, Branch 103, as Criminal Case No. Q-57404
thereof, appellants were charged with kidnapping for ransom allegedly
committed in the following manner:
The two accused are likewise ordered to pay jointly and severally the
offended private victim Ma. Socorro M. Sarmiento the sum of P7,000.00
as actual damages and P3,000.00 as temperate damages. 3
SECOND DIVISION Before us now in this appeal, appellants contend that the court a
quo erred (1) in convicting them under Presidential Decree No. 532
since they were not expressly charged with a crime therein; (2) in
G.R. No. 97471 February 17, 1993 applying Sections 4 and 5, Rule 120 of the Rules of Court since the
charge under said presidential decree is not the offense proved and
cannot rightly be used as the offense proved which is necessarily finally able to flag down a fish vendors van. Her dress had blood
included in the offense charged. 4 because, according to Ma. Socorro, she fell down on the ground and
was injured when she jumped out of the car. Her dress was torn too (Id.,
For the material antecedents of this case, we quote with approval the
pp. 23-26).
following counter-statement of facts in the People's brief 5 which
adopted the established findings of the court a quo, documenting the On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM
same with page references to the transcripts of the proceedings, and (Id., p. 27).
which we note are without any substantial divergence in the version
Both accused were, day after, arrested. Enrique was arrested trying to
proffered by the defense.
encash Ma. Socorro's P40,000.00 check at PCI Bank, Makati. (tsn, Oct.
This is a prosecution for kidnapping for ransom allegedly done on 18, 1989, pp. 10-13) 6
January 13, 1988 by the two accused (tsn, Jan. 8, 1990, p. 7).
As observed by the court below, the defense does not dispute said
Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta narrative of complainant, except that, according to appellant Puno, he
Avenue, Quezon City called Nika Cakes and Pastries. She has a driver stopped the car at North Diversion and freely allowed complainant to
of her own just as her husband does (Ibid., pp. 4-6). step out of the car. He even slowed the car down as he drove away, until
he saw that his employer had gotten a ride, and he claimed that she fell
At around 5:00 in the afternoon of January 13, 1988, the accused
down when she stubbed her toe while running across the highway. 7
Isabelo Puno, who is the personal driver of Mrs. Sarmiento's husband
(who was then away in Davao purportedly on account of local election Appellants further testified that they brought the Mercedez Benz car to
there) arrived at the bakeshop. He told Mrs. Socorro that her own driver Dolores, San Fernando, Pampanga and parked it near a barangay or
Fred had to go to Pampanga on an emergency (something bad befell a police outpost. They thereafter ate at a restaurant and divided their
child), so Isabelo will temporary (sic) take his place (Id., pp. 8-9). loot. 8 Much later, when he took the stand at the trial of this case,
appellant Puno tried to mitigate his liability by explaining that he was in
Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she
dire need of money for the medication of his ulcers. 9
got into the Mercedes Benz of her husband with Isabelo on (sic) the
wheel. After the car turned right in (sic) a corner of Araneta Avenue, it On these relatively simple facts, and as noted at the start of this opinion,
stopped. A young man, accused Enrique Amurao, boarded the car three theories have been advanced as to what crime was committed by
beside the driver (Id., pp. 9-10). appellants. The trial court cohered with the submission of the defense
that the crime could not be kidnapping for ransom as charged in the
Once inside, Enrique clambered on top of the back side of the front seat
information. We likewise agree.
and went onto where Ma. Socorro was seated at the rear. He poke (sic)
a gun at her (Id., p. 10). Prefatorily, it is worth recalling an accepted tenet in criminal law that in
the determination of the crime for which the accused should be held
Isabelo, who earlier told her that Enrique is his nephew announced,
liable in those instances where his acts partake of the nature of variant
"ma'm, you know, I want to get money from you." She said she has
offenses, and the same holds true with regard to the modifying or
money inside her bag and they may get it just so they will let her go. The
qualifying circumstances thereof, his motive and specific intent in
bag contained P7,000.00 and was taken (Id., pp. 11-14).
perpetrating the acts complained of are invaluable aids in arriving at a
Further on, the two told her they wanted P100,000.00 more. Ma. Socorro correct appreciation and accurate conclusion thereon.
agreed to give them that but would they drop her at her gas station in
Thus, to illustrate, the motive of the accused has been held to be
Kamagong St., Makati where the money is? The car went about the Sta.
relevant or essential to determine the specific nature of the crime as, for
Mesa area. Meanwhile, Ma. Socorro clutched her Rosary and prayed.
instance, whether a murder was committed in the furtherance of
Enrique's gun was menacingly storing (sic) at her soft bread (sic) brown,
rebellion in which case the latter absorbs the former, or whether the
perfumed neck. He said he is an NPA and threatened her (Id., p.15).
accused had his own personal motives for committing the murder
The car sped off north towards the North superhighway. There Isabelo, independent of his membership in the rebellious movement in which
Beloy as he is called, asked Ma. Socorro to issue a check for case rebellion and murder would constitute separate offenses. 10 Also,
P100,000.00. Ma. Socorro complied. She drafted 3 checks in where injuries were inflicted on a person in authority who was not then
denominations of two for P30 thousand and one for P40 thousand. in the actual performance of his official duties, the motive of the offender
Enrique ordered her to swallow a pill but she refused (Id., pp. 17-23). assumes importance because if the attack was by reason of the previous
performance of official duties by the person in authority, the crime would
Beloy turned the car around towards Metro Manila. Later, he changed be direct assault; otherwise, it would only be physical injuries. 11
his mind and turned the car again towards Pampanga. Ma. Socorro,
according to her, jumped out of the car then, crossed to the other side In the case at bar, there is no showing whatsoever that appellants had
of the superhighway and, after some vehicles ignored her, she was any motive, nurtured prior to or at the time they committed the wrongful
acts against complainant, other than the extortion of money from her Neither can we consider the amounts given to appellants as equivalent
under the compulsion of threats or intimidation. This much is admitted to or in the nature of ransom, considering the immediacy of their
by both appellants, without any other esoteric qualification or dubious obtention thereof from the complainant personally. Ransom, in
justification. Appellant Puno, as already stated, candidly laid the blame municipal criminal law, is the money, price or consideration paid or
for his predicament on his need for funds for, in his own testimony, demanded for redemption of a captured person or persons, a payment
"(w)hile we were along the way Mam (sic) Corina was telling me "Beloy, that releases from captivity. 17 It can hardly be assumed that when
I know your family very well and I know that your (sic) not (a) bad person, complainant readily gave the cash and checks demanded from her at
why are you doing this?" I told her "Mam, (sic), because I need money gun point, what she gave under the circumstances of this case can be
and I had an ulcer and that I have been getting an (sic) advances from equated with or was in the concept of ransom in the law of kidnapping.
our office but they refused to give me any bale (sic). . . ." 12 These were merely amounts involuntarily surrendered by the victim
upon the occasion of a robbery or of which she was summarily divested
With respect to the specific intent of appellants vis-a-vis the charge that
by appellants. Accordingly, while we hold that the crime committed is
they had kidnapped the victim, we can rely on the proverbial rule of
robbery as defined in Article 293 of the Code, we, however, reject the
ancient respectability that for this crime to exist, there must be
theory of the trial court that the same constitutes the highway robbery
indubitable proof that
contemplated in and punished by Presidential Decree No. 532.
the actual intent of the malefactors was to deprive the offended party of
her liberty, 13 and not where such restraint of her freedom of action was The lower court, in support of its theory, offers this ratiocination:
merely an incident in the commission of another offense primarily
The court agrees that the crime is robbery. But it is also clear from the
intended by the offenders. Hence, as early as United States
allegation in the information that the victim was carried away and
vs. Ancheta, 14 and consistently reiterated thereafter, 15 it has been
extorted for more money. The accused admitted that the robbery was
held that the detention and/or forcible taking away of the victims by the
carried on from Araneta Avenue up to the North Superhighway. They
accused, even for an appreciable period of time but for the primary and
likewise admitted that along the way they intimidated Ma. Socorro to
ultimate purpose of killing them, holds the offenders liable for taking their
produce more money that she had with her at the time for which reason
lives or such other offenses they committed in relation thereto, but the
Ma. Socorro, not having more cash, drew out three checks. . . .
incidental deprivation of the victims' liberty does not constitute
kidnapping or serious illegal detention. In view of the foregoing the court is of the opinion that the crimes
committed is that punishable under P.D. 532 (Anti-Piracy and Anti-
That appellants in this case had no intention whatsoever to kidnap or
Highway Robbery Law of 1974) under which where robbery on the
deprive the complainant of her personal liberty is clearly demonstrated
highway is accompanied by extortion the penalty is reclusion
in the veritably confessional testimony of appellant Puno:
perpetua. 18
Q At what point did Mrs. Sarmiento handed (sic) the bag containing the
The Solicitor General concurs, with the observation that pursuant to the
P7,000.00 to your nephew?
repealing clause in Section 5 of said decree, "P.D. No- 532 is a
A Santo Domingo Exit. modification of the provisions of the Revised Penal Code, particularly
Article 267 which
Q And how about the checks, where were you already when the checks
are inconsistent with it." 19 Such opinion and complementary
was (sic) being handed to you?
submission consequently necessitate an evaluation of the correct
A Also at the Sto. Domingo exit when she signed the checks. interplay between and the legal effects of Presidential Decree No. 532
on the pertinent Provisions of the Revised Penal Code, on which matter
Q If your intention was just to robbed (sic) her, why is it that you still did we are not aware that any definitive pronouncement has as yet been
not allow her to stay at Sto. Domingo, after all you already received the made.
money and the checks?
Contrary to the postulation of the Solicitor General, Presidential Decree
A Because we had an agreement with her that when she signed the No. 532 is not a modification of Article 267 of the Revised Penal Code
checks we will take her to her house at Villa (sic) Verde. on kidnapping and serious illegal detention, but of Articles 306 and 307
on brigandage. This is evident from the fact that the relevant portion
Q And why did you not bring her back to her house at Valle Verde when
thereof which treats of "highway robbery" invariably uses this term in the
she is (sic) already given you the checks?
alternative and synonymously with brigandage, that is, as "highway
A Because while we were on the way back I (sic) came to my mind that robbery/brigandage." This is but in line with our previous ruling, and
if we reach Balintawak or some other place along the way we might be which still holds sway in criminal law, that highway robbers (ladrones)
apprehended by the police. So when we reached Santa Rita exit I told and brigands are synonymous. 20
her "Mam (sic) we will already stop and allow you to get out of the
Harking back to the origin of our law on brigandage (bandolerismo) in
car." 16
order to put our discussion thereon in the proper context and
perspective, we find that a band of brigands, also known as highwaymen WHEREAS, such acts of depredations constitute . . . highway
or freebooters, is more than a gang of ordinary robbers. Jurisprudence robbery/brigandage which are among the highest forms of lawlessness
on the matter reveals that during the early part of the American condemned by the penal statutes of all countries;
occupation of our country, roving bands were organized for robbery and
WHEREAS, it is imperative that said lawless elements be discouraged
pillage and since the then existing law against robbery was inadequate
from perpetrating such acts of depredaions by imposing heavy penalty
to cope with such moving bands of outlaws, the Brigandage Law was
on the offenders, with the end in view of eliminating all obstacles to the
passed. 21
economic, social, educational and community progress of the people.
The following salient distinctions between brigandage and robbery are (Emphasis supplied).
succinctly explained in a treatise on the subject and are of continuing
Indeed, it is hard to conceive of how a single act of robbery against a
validity:
particular person chosen by the accused as their specific victim could
The main object of the Brigandage Law is to prevent the formation of be considered as committed on the "innocent and defenseless
bands of robbers. The heart of the offense consists in the formation of a inhabitants who travel from one place to another," and which single act
band by more than three armed persons for the purpose indicated in art. of depredation would be capable of "stunting the economic and social
306. Such formation is sufficient to constitute a violation of art. 306. It progress of the people" as to be considered "among the highest forms
would not be necessary to show, in a prosecution under it, that a of lawlessness condemned by the penal statutes of all countries," and
member or members of the band actually committed robbery or would accordingly constitute an obstacle "to the economic, social,
kidnapping or any other purpose attainable by violent means. The crime educational and community progress of the people, " such that said
is proven when the organization and purpose of the band are shown to isolated act would constitute the highway robbery or brigandage
be such as are contemplated by art 306. On the other hand, if robbery contemplated and punished in said decree. This would be an
is committed by a band, whose members were not primarily organized exaggeration bordering on the ridiculous.
for the purpose of committing robbery or kidnapping, etc., the crime
True, Presidential Decree No. 532 did introduce amendments to Articles
would not be brigandage, but only robbery. Simply because robbery was
306 and 307 of the Revised Penal Code by increasing the penalties,
committed by a band of more than three armed persons, it would not
albeit limiting its applicability to the offenses stated therein when
follow that it was committed by a band of brigands. In the Spanish text
committed on the highways and without prejudice to the liability for such
of art. 306, it is required that the band "sala a los campos para dedicarse
acts if committed. Furthermore, the decree does not require that there
a robar." 22 (Emphasis supplied).
be at least four armed persons forming a band of robbers; and the
In fine, the purpose of brigandage is, inter alia, indiscriminate highway presumption in the Code that said accused are brigands if they use
robbery. If the purpose is only a particular robbery, the crime is only unlicensed firearms no longer obtains under the decree. But, and this
robbery, or robbery in band if there are at least four armed we broadly underline, the essence of brigandage under the Code as a
participants. 23 The martial law legislator, in creating and promulgating crime of depredation wherein the unlawful acts are directed not only
Presidential Decree No. 532 for the objectives announced therein, could against specific, intended or preconceived victims, but against any and
not have been unaware of that distinction and is presumed to have all prospective victims anywhere on the highway and whosoever they
adopted the same, there being no indication to the contrary. This may potentially be, is the same as the concept of brigandage which is
conclusion is buttressed by the rule on contemporaneous construction, maintained in Presidential Decree No. 532, in the same manner as it
since it is one drawn from the time when and the circumstances under was under its aforementioned precursor in the Code and, for that matter,
which the decree to be construed originated. Contemporaneous under the old Brigandage Law. 25
exposition or construction is the best and strongest in the law. 24
Erroneous advertence is nevertheless made by the court below to the
Further, that Presidential Decree No. 532 punishes as highway robbery fact that the crime of robbery committed by appellants should be covered
or brigandage only acts of robbery perpetrated by outlaws by the said amendatory decree just because it was committed on a
indiscriminately against any person or persons on Philippine highways highway. Aside from what has already been stressed regarding the
as defined therein, and not acts of robbery committed against only a absence of the requisite elements which thereby necessarily puts the
predetermined or particular victim, is evident from the preambular offense charged outside the purview and intendment of that presidential
clauses thereof, to wit: issuance, it would be absurd to adopt a literal interpretation that any
unlawful taking of property committed on our highways would be
WHEREAS, reports from law-enforcement agencies reveal that lawless
covered thereby. It is an elementary rule of statutory construction that
elements are still committing acts of depredation upon the persons and
the spirit or intent of the law should not be subordinated to the letter
properties of innocent and defenseless inhabitants who travel from one
thereof. Trite as it may appear, we have perforce to stress the
place to another, thereby disturbing the peace, order and tranquility of
elementary caveat that he who considers merely the letter of an
the nation and stunting the economic and social progress of the people:
instrument goes but skin deep into its meaning, 26 and the fundamental
rule that criminal justice inclines in favor of the milder form of liability in unlawful taking (apoderamiento) and appropriation by the offender of the
case of doubt. things subject of the robbery. 31
If the mere fact that the offense charged was committed on a highway These foregoing elements are necessarily included in the information
would be the determinant for the application of Presidential Decree No. filed against appellants which, as formulated, allege that they wilfully,
532, it would not be farfetched to expect mischievous, if not absurd, unlawfully and feloniously kidnapped and extorted ransom from the
effects on the corpus of our substantive criminal law. While we eschew complainant. Such allegations, if not expressly but at the very least by
resort to a reductio ad absurdum line of reasoning, we apprehend that necessary implication, clearly convey that the taking of complainant's
the aforestated theory adopted by the trial court falls far short of the money and checks (inaccurately termed as ransom) was unlawful, with
desideratum in the interpretation of laws, that is, to avoid absurdities and intent to gain, and through intimidation. It cannot be logically argued that
conflicts. For, if a motor vehicle, either stationary or moving on a such a charge of kidnapping for ransom does not include but could
highway, is forcibly taken at gun point by the accused who happened to negate the presence of any of the elements of robbery through
take a fancy thereto, would the location of the vehicle at the time of the intimidation of persons. 32
unlawful taking necessarily put the offense within the ambit of
WHEREFORE, the assailed judgment of the trial court is hereby SET
Presidential Decree No. 532, thus rendering nugatory the categorical
ASIDE and another one is rendered CONVICTING accused-appellants
provisions of the Anti-Carnapping Act of 1972? 27 And, if the scenario
Isabelo Puno y Guevarra and Enrique Amurao y Puno of robbery as
is one where the subject matter of the unlawful asportation is large cattle
Punished in Paragraph 5 of Article 294, in relation to Article 295, of the
which are incidentally being herded along and traversing the same
Revised Penal Code and IMPOSING on each of them an indeterminate
highway and are impulsively set upon by the accused, should we apply
sentence of four (4) years and two (2) months of prision correccional, as
Presidential Decree No. 532 and completely disregard the explicit
minimum, to ten (10) years of prision mayor, as maximum, and jointly
prescriptions in the Anti-Cattle Rustling Law of 1974? 28
and severally pay the offended party, Maria del Socorro M. Sarmiento,
We do not entertain any doubt, therefore, that the coincidental fact that the amounts of P7,000.00 as actual damages and P20,000.00 as moral
the robbery in the present case was committed inside a car which, in the damages, with costs.
natural course of things, was casually operating on a highway, is not
SO ORDERED.
within the situation envisaged by Section 2(e) of the decree in its
definition of terms. Besides, that particular provision precisely defines Narvasa, C.J., Feliciano, Nocon and Campos, Jr., JJ., concur.
"highway robbery/brigandage" and, as we have amply demonstrated,
the single act of robbery conceived and committed by appellants in this
case does not constitute highway robbery or brigandage.
# Footnotes
We further hold that there is no procedural obstacle to the conviction of 7 TSN, August 13, 1990, 14-15.
22 Aquino, R.C., The Revised Penal Code, Volume Three, 1989 ed., p. That on or about January 23, 1999, in the evening at Brgy. Bila, Sison,
174, citing U.S. vs. Decusin, 2 Phil. 536 (1903) and U.S. vs. Maao, 2 Pangasinan, and within the jurisdiction of this Honorable Court, the
Phil. 718 (1903). above-named accused, armed with short firearms barged-in and
entered the house of Modesto Delim and once inside with intent to
23 U.S. vs. Feliciano, 3 Phil. 422 (1904).
kill, treachery, evident premedidation (sic), conspiring with one another,
24 Contemporanea expositio est optima et fortissima in lege (2 Inst. 11; did then and there, wilfully, unlawfully and feloniously grab, hold, hogtie,
Black's Law Dictionary, Fourth Edition, 390). gag with a piece of cloth, brought out and abduct Modesto Delim,
accused Leon Delim and Manuel Delim stayed in the house guarded
25 Act 518, as amended by Act 2036.
and prevented the wife and son of Modesto Delim from helping the latter,
26 Qui haeret in litera haeret in cortice (Co. Litt. 289; Broom, Max. 685; thereafter with abuse of superior strength stabbed and killed said
Black's Law Dictionary, Fourth Edition, 1413). Modesto Delim, to the damage and prejudice of his heirs.
27 Republic Act No. 6539. CONTRARY to Article 248 of the Revised Penal Code, as amended by
Republic Act No. 7659.[2]
28 Presidential Decree No. 533.
Only accused-appellants Marlon (Bongbong), Leon and Ronald, all
29 People vs. San Pedro, 95 SCRA 306 (1980); People vs. Masilang,
surnamed Delim, were apprehended. Accused Robert and Manuel
142 SCRA 673 (1986).
remain at-large.
31 U.S. vs. San Pedro, 4 Phil. 405 (1905); U.S. vs. alabot, 38 Phil. 698 their counsel, pleaded not guilty to the charge.
(1918).
At the trial, the prosecution established the following relevant facts[3]
On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and SIGNIFICANT EXTERNAL FINDINGS:
Randy were preparing to have their supper in their home.Joining them
- Body - both upper extremities are flexed
were Modesto and Ritas two young grandchildren, aged 5 and 7 years
old. They were about to eat their dinner when Marlon, Robert and - both lower extremities are flexed
Ronald suddenly barged into the house and closed the door. Each of the
three intruders was armed with a short handgun.Marlon poked his gun - (+) body decomposition
As soon as Leon and Manuel had left, Randy rushed to the house of his - 2 x 1 cms. lacerated wound, right cheek
uncle, Darwin Nio, at Sitio Labayog, informed the latter of the incident
the night before and sought his help for the retrieval of Modesto. Randy - 1 x 1 cm. stabbed wound, axillary area, left
him. Rita and Randy gave their respective sworn statements to the Baguio City show that Marlon had pending cases for robbery in the
police investigators.[6] Police authorities proceeded to arrest Marlon, Regional Trial Court of Baguio City in Criminal Case No. 16193-R, and
Ronald, Robert, Manuel and Leon but failed to find them in their for robbery in band in Criminal Cases Nos. 9801 and 9802 pending with
respective houses. The police officers scoured the mountainous parts of the Regional Trial Court in Urdaneta, Pangasinan.[9]
Sally Asuncion corroborated Leons alibi. She testified that Leon Delim III
never went home to his hometown in Pangasinan during his
employment. His sister, Hermelita Estabillo, likewise averred that on THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT
January 23, 1999, his brother was at her house to give her his AND CREDENCE TO ACCUSED-APPELLANTS DEFENSE OF
laundry.She claimed that the distance between Laoag City and Bila, ALIBI.[13]
Marlon asserted that he was on vacation in Dumaguete City from Court opined that under the Information, Marlon, Ronald and Leon are
December 26, 1998 up to January 29, 1999. During his stay there, he charged with kidnapping under Article 267 of the Revised Penal Code
lived with his sister, Francisca Delim. Upon his return to Manila on and not with murder in its aggravated form in light of the allegation
January 29, 1999, he immediately proceeded to Baguio to visit his therein that the accused willfully, unlawfully and feloniously grab(bed),
cousin. Marlon denied setting foot in Bila, Sison, Pangasinan after his h(e)ld, hog-tie(d), gag(ged), with a piece of cloth, brought out and
sojourn in Dumaguete City. abduct(ed) Modesto Delim (while) Leon Delim and Manuel Delim stayed
in the house (and) guarded and prevented the wife and son of Modesto
The trial court rendered judgment finding accused-appellants guilty of Delim from helping the latter. They submit that the foregoing allegation
murder. The dispositive portion of the trial courts decision reads: constitutes the act of deprivation of liberty of the victim, the gravamen in
the crime of kidnapping. They contend that the fact that the Information
WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable
went further to charge accused with the killing of the victim should be of
doubt is hereby rendered against Ronald Delim, Marlon Delim and Leon
no moment, the real nature of the criminal charge being determined not
Delim (for) the commission of Aggravated Murder, an offense defined
from the caption or the preamble of the Information nor from the
and penalized under Article 248 of the Revised Penal Code, as
specification of the law alleged to have been violated these being
amended by R.A. 7659 and the Court sentences Marlon Delim, Ronald
conclusions of law but by the actual recital of facts in the complaint or
Delim and Leon Delim to suffer the penalty of DEATH, to be
information. They further submit that since the prosecution failed to
implemented in the manner as provided for by law; the Court likewise
prove motive on the part of Marlon, Ronald and Leon to kill Modesto,
orders the accused, jointly and solidarily, to indemnify the heirs of
they are not criminally liable for the death of the victim but only for
Modesto Delim the sum of P75,000.00 as moral damages, plus the
kidnapping the victim.
amount of P25,000.00 as exemplary damages.
proof of motive for the commission of the offense charged does not show doubt either by direct evidence or by circumstantial or presumptive
guilt and absence of proof of such motive does not establish the evidence.[28]
innocence of accused for the crime charged such as murder.[20] The
In the case at bar, the prosecution adduced the requisite quantum of
history of crimes shows that murders are generally committed from
proof of corpus delicti. Modesto sustained five (5) gunshot wounds.He
motives comparatively trivial.[21] Crime is rarely rational. In murder, the
also sustained seven (7) stab wounds,[29] defensive in nature. The use
specific intent is to kill the victim. In kidnapping, the specific intent is to
by the malefactors of deadly weapons, more specifically handguns and
deprive the victim of his/her liberty. If there is no motive for the crime,
knives, in the killing of the victim as well as the nature, number and
the accused cannot be convicted for kidnapping.[22] In kidnapping for
location of the wounds sustained by said victim are evidence of the intent
ransom, the motive is ransom. Where accused kills the victim to avenge
by the malefactors to kill the victim with all the consequences flowing
the death of a loved one, the motive is revenge.
therefrom.[30] As the State Supreme Court of Wisconsin held in Cupps
In this case, it is evident on the face of the Information that the specific v. State:[31]
intent of the malefactors in barging into the house of Modesto was to kill
This rule, that every person is presumed to contemplate the ordinary and Q You said we, who were your companions eating then at that time?
natural consequences of his own acts, is applied even in capital
A My father, my mother and the two children and myself, sir.
cases. Because men generally act deliberately and by the determination
of their own will, and not from the impulse of blind passion, the law Q While taking your supper that time, do you recall if there was anything
presumes that every man always thus acts, until the contrary unusual that happened at that time?
appears. Therefore, when one man is found to have killed another, if the
circumstances of the homicide do not of themselves show that it was not A When we were about to start to eat three armed men entered our
intended, but was accidental, it is presumed that the death of the house.
deceased was designed by the slayer; and the burden of proof is on him
Q Do you know these three armed men who entered your house?
to show that it was otherwise.
A Yes, sir.
The prosecution did not present direct evidence to prove the authors of
the killing of Modesto. It relied on circumstantial evidence to discharge Q Who are they, name them one by one?
its burden of proving the guilt of accused-appellants of
A Marlon Delim, Robert Delim and Ronald Delim.
murder. Circumstantial evidence consists of proof of collateral facts and
circumstances from which the existence of the main fact may be inferred Q Are these three persons inside the courtroom now?
according to reason and common experience.[32] What was once a rule
A Two of them, sir.
of account respectability is now entombed in Section 4, Rule 133 of the
Revised Rules of Evidence which states that circumstantial evidence, Q Who are these two who are inside the courtroom?
sometimes referred to as indirect or presumptive evidence, is sufficient
as anchor for a judgment of conviction if the following requisites concur: A Marlon and Ronald, sir.
x x x if (a) there is more than one circumstance; (b) the facts from which Q Will you please stand up and point to them?
the inferences are derived have been established; and (c) the
A (Witness is pointing to a person seated on the bench inside the
combination of all the circumstances is such as to warrant a finding of
courtroom, who, when his name was asked answered Marlon
guilt beyond reasonable doubt.[33]
Delim.Likewise, witness is pointing unto a person seated on the bench
The prosecution is burdened to prove the essential events which inside the courtroom, who, when his name was asked he answered
constitute a compact mass of circumstantial evidence, and the proof of Ronald Delim).
each being confirmed by the proof of the other, and all without exception
Q You said that these two armed persons entered your house, what kind
leading by mutual support to but one conclusion: the guilt of accused for
of arm were they carrying at that time?
the offense charged.[34] For circumstantial evidence to be sufficient to
support a conviction, all the circumstances must be consistent with each A Short handgun, sir.
other, consistent with the hypothesis that accused is guilty and at the
Q When these three armed persons whom you have mentioned, armed
same time inconsistent with the hypothesis that he is innocent, and with
with short firearms, what did they do then when they entered your
every other rational hypothesis except that of guilt.[35] If the prosecution
house?
adduced the requisite circumstantial evidence to prove the guilt of
accused beyond reasonable doubt, the burden of evidence shifts to the A They took my father, sir.
accused to controvert the evidence of the prosecution.
Q Who took your father?
In the present case, the prosecution mustered the requisite quantum of
A Marlon Delim, Robert Delim and Ronald Delim, sir.
circumstantial evidence to prove that accused-appellants, in
confabulation with their co-accused, conspired to kill and did kill Q When these three persons took your father, what did you do then?
Modesto:
A None, sir.
1. Randy Bantas testified that Marlon and Ronald barged into the house
of Modesto, each armed with a handgun. Marlon poked his gun on COURT: How did they get your father?
Modesto while Ronald hog-tied Modesto. They then seized Modesto
A They poked a gun and brought him outside the house, sir.
and herded him out of his house:
FISCAL TOMBOC: Who poked a gun?
FISCAL TOMBOC: What were you doing then at that time in your
house? A Marlon Delim, sir.
A We were eating, sir. Q Again, Mr. Witness, will you point to the person who poked a gun?
A (Witness is pointing to Malon (sic) Delim, one of the accused). 2. Randy said that when Marlon and Ronald barged into their house,
Leon, armed with a handgun, acted as a lookout when he stood guard
Q After bringing your father out from your house, what transpired next?
by the door of the house of Modesto and remained thereat until 7:00
A Manuel Delim and Leon Delim said, Stay in your house, and guarded a.m. of the next day:
us.
FISCAL TOMBOC: When your father was pulled out from your house by
COURT: You said your father was taken out, who? these three persons, what did you and your mother do while these three
persons were taking out of your house?
A Marlon, Robert and Ronald, sir.
A We did not do anything because Manuel and Leon Delim guarded us.
FISCAL TOMBOC: Where did these three persons bring your father?
COURT: Where, in your house?
A I do not know where they brought my father, sir.
A Yes, sir.
COURT: Was your father taken inside your house or outside?
FISCAL TOMBOC: From that very time that your father was pulled out
A Inside our house, sir. by these three persons Marlon, Robert and Ronal (sic), where were
Leon and Manuel then?
Q You said that Marlon poked a gun at your father, is that correct?
A Ronald and Robert were the ones who pulled my father out, sir.[36] FISCAL TOMBOC: What was their appearance that time when these
two persons were guarding you, these Leon and Manuel?
Randys account of the incident was corroborated by his mother, Rita,
who testified: A They were armed, sir.
PROSECUTION TOMBOC: You said during the last hearing that on Q What do you mean by armed?
January 23, 1999 at around 6:30 in the evening while preparing for your
supper three (3) armed men entered inside your house, who were these A They have gun, sir.
three (3) men who entered your house?
Q What kind of firearm?
A I know, Marlon, Bongbong and Robert, sir.
A Short firearm, sir.
ATTY. FLORENDO: We just make of record that the witness is taking
Q By the way, where are these Leon and Manuel now, if you know?
her time to answer, Your Honor.
A Leon is here, sir.
PROSECUTOR TOMBOC: You said that Marlon Delim, Robert Delim
and Bongbong entered your house, are these three (3) persons who Q About Manuel?
entered your house in Court now?
A None, sir.
A They are here except the other one, sir.
Q Will you please stand up and point at Leon, Mr. Witness?
Q Will you please step down and point to the persons who entered your
A (Witness pointed to a person seated on the bench inside the
house?
courtroom, who when his name was asked, answered, Leon Delim).[38]
A Witness is pointing to Marlon Delim, Robert Delim is not in Court and
3. Rita and Randy were ordered by Leon not to leave the house as
Bongbong is Ronald Delim.
Ronald and Marlon left the house with Modesto in tow. Rita and Randy
Q After these three (3) armed men entered your house, what happened were detained in their house up to 7:00 a.m. of January 24, 1999 to
then? prevent them from seeking help from their relatives and police
authorities.
A My husband was brought out, sir.
4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m.,
Q What is the name of your husband?
the cadaver of Modesto was found under the thick bushes in a grassy
A Modesto Delim, sir.[37] area in the housing project located about 200 meters away from the
house of Modesto. The cadaver exuded bad odor and was already in Q And what was your findings Doctora?
the state of decomposition:
A The body was already under the state of decomposition, sir, with foul
Q So what did you do then on January 27, where did you look for your odor and there were so many worms coming out from the injuries, there
father? were tiny white worms, sir.
A The same place and at 3:00 oclock P.M., we were able to find my Q What else did you observe Doctora?
father.
A Upon seeing the cadaver I asked the relative to refer it to the NBI
COURT: Where? sir. Actually the victim was an igorot (sic) and they have tradition that
they will bury immediately. Whether they like it or not I should do it, sir.
A At the housing project at Paldit, Sison, Pangasinan, sir.
Q What else Doctora?
FISCAL TOMBOC: Do you have companions at that time when you
were able to look for your father on January 27, 1999 at 3:00 oclock A And the penis was inflammed (sic), the scrotum was also inflammed
P.M.? (sic), sir.
A Yes, sir. And for the head injuries there was 10 x 10 ml. GSW pre-auricular area,
right; there was also 20 ml x 20 ml. GSW, mandibular area, right; I
Q Who?
cannot also determine the exit.
A My Aunt, sir.
Q So there were two (2) gunshot wounds (GSW) Doctora?
Q What is the name of your Aunt?
A Yes sir.
The testimony of Randy was corroborated by Dr. de Guzman who Q How many stabbed wound are there Doctora?
testified that the cadaver of Modesto was in a state of decomposition,
A There were seven (7) stabbed wounds, sir.
with tiny white worms crawling from his wounds, and that his penis and
scrotum were inflamed. The victim sustained five gunshot wounds and Q Those stabbed wounds were defensive wounds, Doctora?
defensive wounds on the left arm and forearm:
A Yes sir.[40]
PROS. TOMBOC:
The state of decomposition of the cadaver, with tiny white worms
Q Will you please tell the Honorable Court your findings, Doctora? swarming and feasting on it and the distention of his scrotum and penis
are evidence that the cadaver was in the stage of putrefaction and that
WITNESS:
the victim had been dead for a period ranging from three to six
A First finding: Upon seeing the cadaver, this is the position of the body, days.[41] Admittedly, there are variant factors determinative of the exact
both upper extremities are flexed and both lower extremities are flexed death of the victim. An equally persuasive authority states:
(Nakakukot).
Chronological Sequence of Putrefactive Changes Occurring in Tropical
Q How many days had already elapsed when you autopsied the cadaver Region:
of the victim, Doctora?
Time Since Death Condition of the Body
A Four (4) days upon the recovery of the body, sir.
48 hours Ova of flies seen. A Labayog, Sison, sir.
Moving maggots seen. A In mountainous part of Immalog, part of Tuba Benguet, sir.
72 hours Whole body grossly swollen and Q What was the result?
Tissues soft and discolored.[42] 6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald
used to go to the house of Modesto and Rita:
The lapse of two or three to four days from the seizure of the victim in
the evening of January 23, 1999 to the discovery of his cadaver which COURT: These Leon and Manuel Delim are they known to you prior to
was already in the state of putrefaction in the afternoon of January 27, that day, January 23, 1999?
1999, about 200 meters away from his house, is consistent with and
A Yes, sir, I know them.
confirmatory of the contention of the prosecution that the victim was
killed precisely by the very malefactors who seized him on January 23, Q Why do you know Manuel and Leon prior to January 23, 1999?
1999.
A They are my neighbors, sir.
5. When police authorities went to the residences of all the malefactors,
the latter had flown the coop and were nowhere to be found: Q How about Marlon, Robert and Bongbong do you know them before
January 23, 1999?
COURT: In connection with this case, you investigated the wife and son
of Modesto Delim? A I know them, sir.
Q In the course of the investigation did you come to know who were the A They used to go to our house, sir.
suspects?
Q I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all
A Yes, sir, she elaborated that the suspects were their neighbors, Delims and your husbands name is Modesto Delim are they related with
A Manuel Delim, Leon Delim I cannot remember the others, sir. The sudden disappearance of Marlon, Ronald and Leon from their
houses in Barangay Bila, Sison is strong circumstantial evidence of their
Q By reason of that information were you able to apprehend any of them guilt for the death of Modesto. Although flight after the commission of an
for investigation? offense does not create a legal presumption of guilt, nevertheless, the
same is admissible in evidence against them and if not satisfactorily
A No, sir.
explained in a manner consistent with their innocence, will tend to show
Q Why? that they, in fact, killed Modesto.[45]
A Because when we were dispatched by the Chief of Police no Delim It is true that the prosecution failed to prove motive on the part of the
brothers could be found, they all left the place, sir. malefactors to abduct and kill Modesto. Indeed, Randy and Rita testified
that they were not aware of any misunderstanding or grudge between
Q In what place did you look for the brothers Delim?
Modesto on the one hand and Marlon, Ronald and Leon and their co-
A Within the vicinity, sir. accused on the other before the incident, or any motivation on the part
of the three malefactors to cause harm to Modesto.Nonetheless, it
Q In what place? cannot thereby be concluded that a person or persons other than
Marlon, Ronald and Leon were criminally responsible for the death of
A Brgy. Bila and the place where the crime was committed in Brgy. Bila
the victim. It is a matter of judicial notice that nowadays persons have
and the place where the cadaver was found in Paldit, sir.
killed or committed serious crimes for no reason at all.[46]In this case,
Q Where did you look for the Delim brothers? the inscrutable facts are that Marlon and Ronald, each of whom was
armed with a handgun, forcibly took Modesto from his house at the
A Nearby barangays, Immalog, sir.
gunpoint, hogtied, put a piece of cloth in his mouth and after Ronald and
Q Wherelse (sic)? Marlon had left the house with Modesto in tow, Rita heard three
gunshots or so and the cadaver of Modesto was found concealed under the acts, words and declaration of each, while in the pursuit of the
the bushes and already in a state of putrefaction in the afternoon of common design, are the acts, words and declarations of all.[53]
January 27, 1999. Modesto sustained several gunshot wounds and died
In the case at bar, Marlon, Ronald and Leon arrived together in the
because of a gunshot wound on the head. The criminal acts and the
house of Modesto, each armed with a handgun. Marlon and Ronald
connection of Marlon, Ronald and Leon with said acts having been
barged into said house while Leon stood guard by the door thereof. After
proved by the prosecution beyond reasonable doubt, the act itself
Marlon and Ronald had left with Modesto in tow, Leon stood by the door
furnishes the evidence, that to its perpetration there was some causes
and warned Randy and Rita not to leave the house. Leon stood guard
or influences moving the mind.[47] The remarkable tapestry intricately
by the door of the house until 7:00 a.m. of January 24, 1999 when he
woven by the prosecution should not be trashed simply because the
left the house. The overt acts of all the malefactors were so
malefactors had no motive to kill Modesto.
synchronized and executed with precision evincing a preconceived plan
Ranged against the evidence of the prosecution, the burden of evidence or design of all the malefactors to achieve a common purpose, namely
shifted on Marlon, Ronald and Leon to rebut the same and explain what the killing of Modesto. Irrefragably, the tasks assigned to Leon in the
happened to the victim after taking him from his house in the evening of commission of the crime were (a) to act as a lookout; (b) to ensure that
January 23, 1999. They may have freed the victim shortly after taking Rita and Randy remain in their house to prevent them from seeking
him, or the victim may have been able to escape and that thereafter a assistance from police authorities and their relatives before their mission
person or some other persons may have killed him. However, Marlon, to kill Modesto shall have been a fait accompli as well as the escape of
Ronald and Leon failed to give any explanation. Instead, they merely Marlon and Ronald.[54] Patently, Leon, a lookout for the group, is guilty
denied having seized and killed the victim and interposed alibi as their of the killing of Modesto.[55] Leon may not have been at the situs
defense. criminis when Modesto was killed by Marlon and Ronald nevertheless
he is a principal by direct participation.[56] If part of a crime has been
Leon is equally guilty for the death of Modesto because the evidence on
committed in one place and part in another, each person concerned in
record shows that he conspired with accused-appellants Marlon and
the commission of either part is liable as principal. No matter how wide
Ronald and accused Robert and Manuel in killing the victim.
may be the separation of the conspirators, if they are all engaged in a
There is conspiracy when two or more persons agree to commit a felony common plan for the execution of a felony and all take their part in
and decide to commit it.[48] Conspiracy must be proven with the same furtherance of the common design, all are liable as principals. Actual
quantum of evidence as the felony itself, more specifically by proof presence is not necessary if there is a direct connection between the
beyond reasonable doubt. Conspiracy is not presumed. It may be actor and the crime. [57]
St.Tr. (N.S.) 1, 710.[52] findings of facts of the trial court, its calibration of the collective
testimonies of witnesses and its assessment of the probative weight
In the eyes of the law, conspirators are one man, they breathe one thereof and its conclusions culled from its findings are accorded by the
breath, they speak one voice, they wield one arm and the law says that appellate court great respect, if not conclusive effect, because of its
unique advantage of observing at close range the demeanor, guard by the door of the house or entered the house are
deportment and conduct of the witnesses as they give their testimonies inconsequential. The fact is that Leon stood guard throughout the night
before the court. In the present case, the trial court gave credence and to prevent Rita and Randy from seeking assistance for the seizure and
full probative weight to the testimonies of the witnesses of the killing of Modesto.
prosecution. Moreover, there is no evidence on record that Randy and
This Court is convinced, as the trial court was, that the respective
Rita were moved by any improper or ill motive in testifying against the
testimonies of Randy and Rita bear the earmarks of truth and
malefactors and the other accused; hence, their testimonies must be
sincerity. Despite intense and grueling cross-examination, they
given full credit and probative weight.[59] The inconsistencies in the
responded with consistency upon material details that could only come
testimonies of Rita and Randy do not render them incredible or their
from a firsthand knowledge of the shocking events which unfolded
testimonies barren of probative weight. It must be borne in mind that
before their eyes. The Court thus finds no cogent reason to disregard
human memory is not as unerring as a photograph and a persons sense
the findings of the trial court regarding their credibility.
of observation is impaired by many factors including the shocking effect
of a crime. A truth-telling witness is not always expected to give an error- Marlon, Ronald and Leon contend that the trial court committed a
free testimony considering the lapse of time and the treachery of human reversible error in not giving credence and probative weight to their
memory. What is primordial is that the mass of testimony jibes on evidence to prove their defense of alibi. They aver that their collective
material points, the slight clashing of statements dilute neither the evidence to prove their defense is strong.
witnesses credibility nor the veracity of his testimony.[60] Variations on
the testimony of witnesses on the same side with respect to minor, We do not agree. Case law has it that the defense of alibi is one of the
collateral or incidental matters do not impair the weight of their united weakest of defenses in criminal prosecution because the same is easy
testimony to the prominent facts.[61] Inconsistencies on minor and trivial to concoct between relatives, friends and even those not related to the
matters only serve to strengthen rather than weaken the credibility of offender.[66] It is hard for the prosecution to disprove. For alibi to merit
witnesses for they erase the suspicion of rehearsed testimony.[62] approbation by the trial court and this Court, Marlon, Ronald and Leon
are burdened to prove with clear and convincing evidence that they were
Moreover, the testimony of a witness should be construed in its entirety in a place other than the situs criminis at the time of the commission of
and not in truncated terms and the true meaning of answers to isolated the crime; that it was physically impossible for them to have committed
questions propounded to a witness is to be ascertained by due the said crime.[67] They failed to discharge their burden. Moreover, Rita
consideration of all the questions propounded to the witness and his and Randy positively and spontaneously identified Marlon, Ronald and
answers thereto.[63] Leon as the culprits. The house of Ronald, where he claimed he was
when the crime was committed, was only two kilometers away from the
Randys testimony that he did know where the malefactors brought his
house of Modesto and can be negotiated by a tricycle. Leon failed to
father is not inconsistent with his testimony that Ronald and Marlon
adduce any documentary evidence to prove his employment by Sally
brought his father towards the direction of Paldit, Sison,
Asuncion. The barefaced fact that he was a resident of Laoag City does
Pangasinan. Randy may not have known the destination of accused-
not constitute proof that he was in Laoag City on the day of the
appellants but he saw the direction to which they went. While it may be
commission of the crime. With respect to Marlon, he failed to adduce
true that when asked to identify the three who barged into their house,
evidence aside from his self-serving testimony that he resided in, left
Rita pointed to Leon as one of them, however, Rita had been consistent
Dumaguete City and arrived in Manila on January 29, 1999.
throughout her testimony that those who barged into their house were
Ronald and Marlon. Leons counsel never cross-examined Rita and The trial court convicted Marlon, Ronald and Leon of murder with the
impeached her testimony on her identification of Leon as one of those qualifying circumstance of treachery in the killing of Modesto. The trial
who barged into their house to give her an opportunity to explain her court likewise appreciated nighttime and abuse of superior strength and
perceived inconsistency conformably with Rule 132, Section 13 of the the use of unlicensed firearms as separate aggravating
Revised Rules of Evidence which reads: circumstances. The Office of the Solicitor General contends that indeed
treachery was attendant in the killing of Modesto. Hence, Marlon,
Before a witness can be impeached by evidence that he has made at
Ronald and Leon are guilty of murder defined in and penalized by Article
other times statements inconsistent with his present testimony, the
248 of the Revised Penal Code.
statements must be related to him, with the circumstances of the times
and places and the persons present, and he must be asked whether he The Court however finds that Marlon, Ronald and Leon are guilty only
made such statements, and if so, allowed to explain them. If the of homicide defined in and penalized by Article 248 of the Revised Penal
statements be in writing they must be shown to the witness before any Code.
question is put to him concerning them.[64]
Qualifying circumstances such as treachery and abuse of superior
Hence, the presentation of the inconsistent statements made by Rita is strength must be alleged and proved clearly and conclusively as the
insufficient for the desired impeachment of her.[65] As to whether Rita crime itself. Mere conjectures, suppositions or presumptions are utterly
and Randy were together in looking for Modesto or Leon merely stood insufficient and cannot produce the effect of qualifying the crime.[68]As
this Court held: No matter how truthful these suppositions or There being no modifying circumstances in the commission of homicide,
presumptions may seem, they must not and cannot produce the effect Marlon, Ronald and Leon should be meted an indeterminate penalty, the
of aggravating the condition of defendant.[69] Article 14, paragraph 16 minimum of which shall be taken from the entirety of prision
of the Revised Penal Code provides that there is treachery when the mayor, ranging from 6 years and one day to 12 years and the maximum
offender commits any of the crimes against the person, employing period of which shall be taken from the medium period of reclusion
means, methods or forms in the execution thereof which tend directly temporal, ranging from 14 years, 8 months and one day to 17 years and
and especially to insure its execution, without risk to himself arising from 4 months.
the defense which the offended party might make. For treachery to be
Consequently, the award for damages in favor of the heirs of the victim
appreciated as a qualifying circumstance, the prosecution is burdened
should be modified. The sum of P75,000.00 awarded as moral damages
to prove the following elements: (a) the employment of means of
should be reduced to P50,000.00 in accordance with prevailing
execution which gives the person attacked no opportunity to defend
jurisprudence.[79] The amount of P25,000.00 as exemplary damages is
himself or retaliate; (b) the means of execution is deliberately or
in order.[80] In addition, civil indemnity in the amount of P50,000.00
consciously adopted.[70] Although the victim may have been
should be awarded without need of proof, likewise in consonance with
defenseless at the time he was seized but there is no evidence as to the
prevailing jurisprudence.[81]
particulars of how he was assaulted and killed, treachery cannot be
appreciated against the accused.[71] In this case, the victim was IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is
defenseless when seized by Marlon and Ronald. However, the AFFIRMED with MODIFICATION. Accused-appellants Marlon Delim,
prosecution failed to present any witness or conclusive evidence that Ronald Delim and Leon Delim are hereby found guilty beyond
Modesto was defenseless immediately before and when he was reasonable doubt of the felony of Homicide defined in and penalized by
attacked and killed. It cannot be presumed that although he was Article 249 of the Revised Penal Code. There being no modifying
defenseless when he was seized the victim was in the same situation circumstances in the commission of the crime, each of accused-
when he was attacked, shot and stabbed by the malefactors. To take appellants is hereby meted an indeterminate penalty of from ten (10)
advantage of superior strength means to purposely use force that is out years and one (1) day of prision mayor in its maximum period as
of proportion to the means of defense available to the person minimum to fourteen (14) years, eight (8) months and one (1) day
attacked.[72] What is primordial, this Court held in People v. Rogelio of reclusion temporal in its medium period as maximum. Accused-
Francisco[73] is that the assailants deliberately took advantage of their appellants are hereby ordered to pay, jointly and severally, to the heirs
combined strength in order to consummate the crime. It is necessary to of the victim the amount of P50,000.00 by way of civil indemnity, the
show that the malefactors cooperated in such a way as to secure amount of P50,000.00 by way of moral damages and the amount
advantage from their superiority in strength.[74] In this case, the of P25,000.00 by way of exemplary damages.
prosecution failed to adduce evidence that Marlon and Ronald
deliberately took advantage of their numerical superiority when Modesto SO ORDERED.
In sum then, we believe that Marlon, Ronald and Leon are guilty only of
Homicide defined in and penalized by Article 249 of the Revised Penal
Code with reclusion temporal in its full period.
The evidence as to many of the essential and vital facts in this case is There had been several robberies in Fort McKinley not long prior to the
limited to the testimony of the accused himself, because from the very date of the incident just described, one of which took place in a house in
nature of these facts and from the circumstances surrounding the which the defendant was employed as cook; and as defendant alleges,
incident upon which these proceedings rest, no other evidence as to it was because of these repeated robberies he kept a knife under his
these facts was available either to the prosecution or to the defense. We pillow for his personal protection.
think, however, that, giving the accused the benefit of the doubt as to
the weight of the evidence touching those details of the incident as to The deceased and the accused, who roomed together and who appear
which there can be said to be any doubt, the following statement of the to have on friendly and amicable terms prior to the fatal incident, had an
material facts disclose by the record may be taken to be substantially understanding that when either returned at night, he should knock at the
correct: door and acquiant his companion with his identity. Pascual had left the
house early in the evening and gone for a walk with his friends, Celestino
The defendant, Ah Chong, was employed as a cook at "Officers' Quiambao and Mariano Ibaez, servants employed at officers' quarters
quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same place No. 28, the nearest house to the mess hall. The three returned from their
Pascual Gualberto, deceased, was employed as a house boy walk at about 10 o'clock, and Celestino and Mariano stopped at their
or muchacho. "Officers' quarters No. 27" as a detached house situates room at No. 28, Pascual going on to his room at No. 27. A few moments
some 40 meters from the nearest building, and in August, 19087, was after the party separated, Celestino and Mariano heard cries for
occupied solely as an officers' mess or club. No one slept in the house assistance and upon returning to No. 27 found Pascual sitting on the
except the two servants, who jointly occupied a small room toward the back steps fatally wounded in the stomach, whereupon one of them ran
rear of the building, the door of which opened upon a narrow porch back to No. 28 and called Liuetenants Jacobs and Healy, who
running along the side of the building, by which communication was had immediately went to the aid of the wounded man.
with the other part of the house. This porch was covered by a heavy
growth of vines for its entire length and height. The door of the room was The defendant then and there admitted that he had stabbed his
not furnished with a permanent bolt or lock, and occupants, as a roommate, but said that he did it under the impression that Pascual was
measure of security, had attached a small hook or catch on the inside of "a ladron" because he forced open the door of their sleeping room,
the door, and were in the habit of reinforcing this somewhat insecure despite defendant's warnings.
means of fastening the door by placing against it a chair. In the room
No reasonable explanation of the remarkable conduct on the part of
there was but one small window, which, like the door, opened on the
Pascuals suggests itself, unless it be that the boy in a spirit of mischief
porch. Aside from the door and window, there were no other openings
was playing a trick on his Chinese roommate, and sought to frightened
of any kind in the room.
him by forcing his way into the room, refusing to give his name or say
On the night of August 14, 1908, at about 10 o'clock, the defendant, who who he was, in order to make Ah Chong believe that he was being
had received for the night, was suddenly awakened by some trying to attacked by a robber.
force open the door of the room. He sat up in bed and called out twice,
Defendant was placed under arrest forthwith, and Pascual was
"Who is there?" He heard no answer and was convinced by the noise at
conveyed to the military hospital, where he died from the effects of the
the door that it was being pushed open by someone bent upon forcing
wound on the following day.
his way into the room. Due to the heavy growth of vines along the front
of the porch, the room was very dark, and the defendant, fearing that the The defendant was charged with the crime of assassination, tried, and
intruder was a robber or a thief, leaped to his feet and called out. "If you found guilty by the trial court of simple homicide, with extenuating
enter the room, I will kill you." At that moment he was struck just above circumstances, and sentenced to six years and one day presidio mayor,
the knee by the edge of the chair which had been placed against the the minimum penalty prescribed by law.
door. In the darkness and confusion the defendant thought that the blow
At the trial in the court below the defendant admitted that he killed his
had been inflicted by the person who had forced the door open, whom
roommate, Pascual Gualberto, but insisted that he struck the fatal blow
he supposed to be a burglar, though in the light of after events, it is
probable that the chair was merely thrown back into the room by the
without any intent to do a wrongful act, in the exercise of his lawful right the law is a necessary ingredient of the offense charged (e.g., in
of self-defense. larcerny, animus furendi; in murder, malice; in crimes intent) "cancels
the presumption of intent," and works an acquittal; except in those cases
Article 8 of the Penal Code provides that
where the circumstances demand a conviction under the penal
The following are not delinquent and are therefore exempt from criminal provisions touching criminal negligence; and in cases where, under the
liability: provisions of article 1 of the Penal Code one voluntarily committing a
crime or misdeamor incurs criminal liability for any wrongful act
xxx xxx xxx committed by him, even though it be different from that which he
intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited;
4 He who acts in defense of his person or rights, provided there are the
McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap.,
following attendant circumstances:
240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y.,
(1) Illegal aggression. 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met.,
500.)
(2) Reasonable necessity of the means employed to prevent or repel it.
The general proposition thus stated hardly admits of discussion, and the
(3) Lack of sufficient provocation on the part of the person defending
only question worthy of consideration is whether malice or criminal intent
himself.
is an essential element or ingredient of the crimes of homicide and
Under these provisions we think that there can be no doubt that assassination as defined and penalized in the Penal Code. It has been
defendant would be entitle to complete exception from criminal liability said that since the definitions there given of these as well as most other
for the death of the victim of his fatal blow, if the intruder who forced crimes and offense therein defined, do not specifically and expressly
open the door of his room had been in fact a dangerous thief or "ladron," declare that the acts constituting the crime or offense must be committed
as the defendant believed him to be. No one, under such circumstances, with malice or with criminal intent in order that the actor may be held
would doubt the right of the defendant to resist and repel such an criminally liable, the commission of the acts set out in the various
intrusion, and the thief having forced open the door notwithstanding definitions subjects the actor to the penalties described therein, unless
defendant's thrice-repeated warning to desist, and his threat that he it appears that he is exempted from liability under one or other of the
would kill the intruder if he persisted in his attempt, it will not be express provisions of article 8 of the code, which treats of exemption.
questioned that in the darkness of the night, in a small room, with no But while it is true that contrary to the general rule of legislative
means of escape, with the thief advancing upon him despite his enactment in the United States, the definitions of crimes and offenses
warnings defendant would have been wholly justified in using any as set out in the Penal Code rarely contain provisions expressly
available weapon to defend himself from such an assault, and in striking declaring that malice or criminal intent is an essential ingredient of the
promptly, without waiting for the thief to discover his whereabouts and crime, nevertheless, the general provisions of article 1 of the code
deliver the first blow. clearly indicate that malice, or criminal intent in some form, is an
essential requisite of all crimes and offense therein defined, in the
But the evidence clearly discloses that the intruder was not a thief or a
absence of express provisions modifying the general rule, such as are
"ladron." That neither the defendant nor his property nor any of the
those touching liability resulting from acts negligently or imprudently
property under his charge was in real danger at the time when he struck
committed, and acts done by one voluntarily committing a crime or
the fatal blow. That there was no such "unlawful aggression" on the part
misdemeanor, where the act committed is different from that which he
of a thief or "ladron" as defendant believed he was repelling and
intended to commit. And it is to be observed that even these exceptions
resisting, and that there was no real "necessity" for the use of the knife
are more apparent than real, for "There is little distinction, except in
to defend his person or his property or the property under his charge.
degree, between a will to do a wrongful thing and indifference whether
The question then squarely presents it self, whether in this jurisdiction it is done or not. Therefore carelessness is criminal, and within limits
one can be held criminally responsible who, by reason of a mistake as supplies the place of the affirmative criminal intent" (Bishop's New
to the facts, does an act for which he would be exempt from criminal Criminal Law, vol. 1, s. 313); and, again, "There is so little difference
liability if the facts were as he supposed them to be, but which would between a disposition to do a great harm and a disposition to do harm
constitute the crime of homicide or assassination if the actor had known that one of them may very well be looked upon as the measure of the
the true state of the facts at the time when he committed the act. To this other. Since, therefore, the guilt of a crime consists in the disposition to
question we think there can be but one answer, and we hold that under do harm, which the criminal shows by committing it, and since this
such circumstances there is no criminal liability, provided always that the disposition is greater or less in proportion to the harm which is done by
alleged ignorance or mistake or fact was not due to negligence or bad the crime, the consequence is that the guilt of the crime follows the same
faith. proportion; it is greater or less according as the crime in its own nature
does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been
In broader terms, ignorance or mistake of fact, if such ignorance or otherwise stated, the thing done, having proceeded from a corrupt mid,
mistake of fact is sufficient to negative a particular intent which under
is to be viewed the same whether the corruption was of one particular And to the same effect in its sentence of December 30, 1896, it made
form or another. use of the following language:
Article 1 of the Penal Code is as follows: . . . Considering that the moral element of the crime, that is, intent or
malice or their absence in the commission of an act defined and
Crimes or misdemeanors are voluntary acts and ommissions punished
punished by law as criminal, is not a necessary question of fact
by law.
submitted to the exclusive judgment and decision of the trial court.
Acts and omissions punished by law are always presumed to be
That the author of the Penal Code deemed criminal intent or malice to
voluntarily unless the contrary shall appear.
be an essential element of the various crimes and misdemeanors therein
An person voluntarily committing a crime or misdemeanor shall incur defined becomes clear also from an examination of the provisions of
criminal liability, even though the wrongful act committed be different article 568, which are as follows:
sentiment would any people in any age allow that a man should be exists only where the mind is at fault, because "the evil purpose need
deemed guilty unless his mind was so. It is therefore a principle of our not be to break the law, and if suffices if it is simply to do the thing which
legal system, as probably it is of every other, that the essence of an the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases
offense is the wrongful intent, without which it can not exists. We find cited.)
want of bad intent in justification of what has the appearance of wrong, more nicely in accord with the principles on which the rule is founded, if
with the utmost confidence that the plea, if its truth is credited, will be without fault or carelessness he does believe them he is legally
accepted as good. Now these facts are only the voice of nature uttering guiltless of the homicide; though he mistook the facts, and so the life of
an innocent person is unfortunately extinguished. In other words, and ascertain how the pistol is loaded a doctrine which would entirely take
with reference to the right of self-defense and the not quite harmonious away the essential right of self-defense. And when it is considered that
authorities, it is the doctrine of reason and sufficiently sustained in the jury who try the cause, and not the party killing, are to judge of the
adjudication, that notwithstanding some decisions apparently adverse, reasonable grounds of his apprehension, no danger can be supposed
whenever a man undertakes self-defense, he is justified in acting on the to flow from this principle. (Lloyd's Rep., p. 160.)
facts as they appear to him. If, without fault or carelessness, he is misled
To the same effect are various decisions of the supreme court of Spain,
concerning them, and defends himself correctly according to what he
cited by Viada, a few of which are here set out in full because the facts
thus supposes the facts to be the law will not punish him though they
are somewhat analogous to those in the case at bar.
are in truth otherwise, and he was really no occassion for the extreme
measures. (Bishop's New Criminal Law, sec. 305, and large array of QUESTION III. When it is shown that the accused was sitting at his
cases there cited.) hearth, at night, in company only of his wife, without other light than
reflected from the fire, and that the man with his back to the door was
The common illustration in the American and English textbooks of the
attending to the fire, there suddenly entered a person whom he did not
application of this rule is the case where a man, masked and disguised
see or know, who struck him one or two blows, producing a contusion
as a footpad, at night and on a lonely road, "holds up" his friends in a
on the shoulder, because of which he turned, seized the person and took
spirit of mischief, and with leveled pistol demands his money or his life,
from his the stick with which he had undoubtedly been struck, and gave
but is killed by his friend under the mistaken belief that the attack is a
the unknown person a blow, knocking him to the floor, and afterwards
real one, that the pistol leveled at his head is loaded, and that his life
striking him another blow on the head, leaving the unknown lying on the
and property are in imminent danger at the hands of the aggressor. No
floor, and left the house. It turned out the unknown person was his
one will doubt that if the facts were such as the slayer believed them to
father-in-law, to whom he rendered assistance as soon as he learned
be he would be innocent of the commission of any crime and wholly
his identity, and who died in about six days in consequence of cerebral
exempt from criminal liability, although if he knew the real state of the
congestion resulting from the blow. The accused, who confessed the
facts when he took the life of his friend he would undoubtedly be guilty
facts, had always sustained pleasant relations with his father-in-law,
of the crime of homicide or assassination. Under such circumstances,
whom he visited during his sickness, demonstrating great grief over the
proof of his innocent mistake of the facts overcomes the presumption of
occurrence. Shall he be considered free from criminal responsibility, as
malice or criminal intent, and (since malice or criminal intent is a
having acted in self-defense, with all the circumstances related in
necessary ingredient of the "act punished by law" in cases of homicide
paragraph 4, article 8, of the Penal Code? The criminal branch of
or assassination) overcomes at the same time the presumption
the Audiencia of Valladolid found that he was an illegal aggressor,
established in article 1 of the code, that the "act punished by law" was
without sufficient provocation, and that there did not exists rational
committed "voluntarily."
necessity for the employment of the force used, and in accordance with
Parson, C.J., in the Massachusetts court, once said: articles 419 and 87 of the Penal Code condemned him to twenty months
of imprisonment, with accessory penalty and costs. Upon appeal by the
If the party killing had reasonable grounds for believing that the person
accused, he was acquitted by the supreme court, under the following
slain had a felonious design against him, and under that supposition
sentence: "Considering, from the facts found by the sentence to have
killed him, although it should afterwards appear that there was no such
been proven, that the accused was surprised from behind, at night, in
design, it will not be murder, but it will be either manslaughter or
his house beside his wife who was nursing her child, was attacked,
excusable homicide, according to the degree of caution used and the
struck, and beaten, without being able to distinguish with which they
probable grounds of such belief. (Charge to the grand jury in Selfridge's
might have executed their criminal intent, because of the there was no
case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)
other than fire light in the room, and considering that in such a situation
In this case, Parker, J., charging the petit jury, enforced the doctrine as and when the acts executed demonstrated that they might endanger his
follows: existence, and possibly that of his wife and child, more especially
because his assailant was unknown, he should have defended himself,
A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward and in doing so with the same stick with which he was attacked, he did
him, with an outstretched arms and a pistol in his hand, and using violent not exceed the limits of self-defense, nor did he use means which were
menaces against his life as he advances. Having approached near not rationally necessary, particularly because the instrument with which
enough in the same attitude, A, who has a club in his hand, strikes B he killed was the one which he took from his assailant, and was capable
over the head before or at the instant the pistol is discharged; and of the of producing death, and in the darkness of the house and the
wound B dies. It turns out the pistol was loaded with powder only, and consteration which naturally resulted from such strong aggression, it
that the real design of B was only to terrify A. Will any reasonable man was not given him to known or distinguish whether there was one or
say that A is more criminal that he would have been if there had been a more assailants, nor the arms which they might bear, not that which they
bullet in the pistol? Those who hold such doctrine must require that a might accomplish, and considering that the lower court did not find from
man so attacked must, before he strikes the assailant, stop and the accepted facts that there existed rational necessity for the means
employed, and that it did not apply paragraph 4 of article 8 of the Penal door of his sleeping room was a thief, from whose assault he was in
Code, it erred, etc." (Sentence of supreme court of Spain, February 28, imminent peril, both of his life and of his property and of the property
1876.) (Viada, Vol. I, p. 266.) . committed to his charge; that in view of all the circumstances, as they
must have presented themselves to the defendant at the time, he acted
QUESTION XIX. A person returning, at night, to his house, which was
in good faith, without malice, or criminal intent, in the belief that he was
situated in a retired part of the city, upon arriving at a point where there
doing no more than exercising his legitimate right of self-defense; that
was no light, heard the voice of a man, at a distance of some 8 paces,
had the facts been as he believed them to be he would have been wholly
saying: "Face down, hand over you money!" because of which, and
exempt from criminal liability on account of his act; and that he can not
almost at the same money, he fired two shots from his pistol,
be said to have been guilty of negligence or recklessness or even
distinguishing immediately the voice of one of his friends (who had
carelessness in falling into his mistake as to the facts, or in the means
before simulated a different voice) saying, "Oh! they have killed me," and
adopted by him to defend himself from the imminent danger which he
hastening to his assistance, finding the body lying upon the ground, he
believe threatened his person and his property and the property under
cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing
his charge.
that he had been the victim of a joke, and not receiving a reply, and
observing that his friend was a corpse, he retired from the place. Shall The judgment of conviction and the sentence imposed by the trial court
he be declared exempt in toto from responsibility as the author of this should be reversed, and the defendant acquitted of the crime with which
homicide, as having acted in just self-defense under the circumstances he is charged and his bail bond exonerated, with the costs of both
defined in paragraph 4, article 8, Penal Code? The criminal branch of instance de oficio. So ordered.
the Audiencia of Malaga did not so find, but only found in favor of the
Johnson Moreland and Elliott, JJ., concur.
accused two of the requisites of said article, but not that of the
Arellano, C.J., and Mapa, J., dissent.
reasonableness of the means employed to repel the attack, and,
therefore, condemned the accused to eight years and one day of prison
mayor, etc. The supreme court acquitted the accused on his appeal from
this sentence, holding that the accused was acting under a justifiable
and excusable mistake of fact as to the identity of the person calling to Separate Opinions
him, and that under the circumstances, the darkness and remoteness,
TORRES, J., dissenting:
etc., the means employed were rational and the shooting justifiable.
(Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.) The writer, with due respect to the opinion of the majority of the court,
believes that, according to the merits of the case, the crime of homicide
QUESTION VI. The owner of a mill, situated in a remote spot, is
by reckless negligence, defined and punishes in article 568 of the Penal
awakened, at night, by a large stone thrown against his window at
Code, was committed, inasmuch as the victim was wilfully
this, he puts his head out of the window and inquires what is wanted,
(voluntariomente) killed, and while the act was done without malice or
and is answered "the delivery of all of his money, otherwise his house
criminal intent it was, however, executed with real negligence, for the
would be burned" because of which, and observing in an alley
acts committed by the deceased could not warrant the aggression by
adjacent to the mill four individuals, one of whom addressed him with
the defendant under the erroneous belief on the part of the accused that
blasphemy, he fired his pistol at one the men, who, on the next morning
the person who assaulted him was a malefactor; the defendant therefore
was found dead on the same spot. Shall this man be declared exempt
incurred responsibility in attacking with a knife the person who was
from criminal responsibility as having acted in just self-defense with all
accustomed to enter said room, without any justifiable motive.
of the requisites of law? The criminal branch of the requisites of law?
The criminal branch of the Audiencia of Zaragoza finds that there By reason of the nature of the crime committed, in the opinion of the
existed in favor of the accused a majority of the requisites to exempt him undersigned the accused should be sentenced to the penalty of one year
from criminal responsibility, but not that of reasonable necessity for the and one month of prision correctional, to suffer the accessory penalties
means, employed, and condemned the accused to twelve months provided in article 61, and to pay an indemnify of P1,000 to the heirs of
of prision correctional for the homicide committed. Upon appeal, the the deceased, with the costs of both instances, thereby reversing the
supreme court acquitted the condemned, finding that the accused, in judgment appealed from.
firing at the malefactors, who attack his mill at night in a remote spot by
threatening robbery and incendiarism, was acting in just self-defense of
his person, property, and family. (Sentence of May 23, 1877). (I Viada,
p. 128.)
Separate Opinions The Solicitor-General, however, contends that the appellants were
authorized to use their revolvers only after being overpowered by
PARAS, J., dissenting: Balagtas. In the first place, the alleged instruction by the Provincial
Inspector to that effect, was in violation of the express order given by the
Anselmo Balagtas, a life termer and notorious criminal, managed to
Constabulary authorities in Manila and which was shown to the
escape and flee form Manila to the provinces. Receiving information to
appellants. In the second place, it would indeed be suicidal for the
the effect that he was staying with one Irene in Cabanatuan, Nueva
appellants or, for that matter, any agent of the authority to have waited
Ecija, the office of the Constabulary in Manila ordered the Provincial
until they have been overpowered before trying to put our such a
Inspector in Cabanatuan by telegram dispatched on December 25,
character as Balagtas. In the third place, it is immaterial whether or not
1938, to get Balagtas "dead or alive". Among those assigned to the task
the instruction given by the Provincial Inspector was legitimate and of imminent attack. Precisely, the situation which confronted the
proper, because the facts exist that the appellants acted in conformity accused-appellants Antonio Z. Oanis and Alberto Galanta in the
with the express order of superior Constabulary authorities, the legality afternoon of December 24, 1938, was very similar to this. It must be
or propriety of which is not herein questioned. remembered that both officers received instructions to get Balagtas
"dead or alive" and according to the attitude of not only the said
The theory of the prosecution has acquired some plausibility, though
appellants but also of Capt. Monsod, constabulary provincial inspector
quite psychological or sentimental, in view only of the fact that it was not
of Nueva Ecija, it may be assumed that said instructions gave more
Balagtas who was actually killed, but an "innocent man . . . while he was
emphasis to the first part; namely, to take him dead. It appears in the
deeply asleep." Anybody's heart will be profoundly grieved by the trade,
record that after the shooting, and having been informed of the case,
but in time will be consoled by the realization that the life of Serapio
Capt. Monsod stated that Oanis and Galanta might be decorated for
Tecson was not vainly sacrificed, for the incident will always serve as a
what they had done. That was when all parties concerned honestly
loud warning to any one desiring to follow in the footsteps of Anselmo
believed that the dead person was Balagtas himself, a dangerous
Balagtas that in due time the duly constituted authorities will, upon
criminal who had escaped from his guards and was supposedly armed
proper order, enforce the summary forfeiture of his life.
with a .45 caliber pistol Brigida Mallari, the person whom the appellants
In my opinion, therefore, the appellants are not criminally liable if the met upon arriving at the house of Irene Requinea, supposed mistress of
person killed by them was in fact Anselmo Balagtas for the reason that Balagtas, informed them that said Balagtas was upstairs. Appellants
they did so in the fulfillment of their duty and in obedience to an order found there asleep a man closely resembling the wanted criminal. Oanis
issued by a superior for some lawful purpose (Revised Penal Code, art. said: If you are Balagtas stand up," But the supposed criminal showed
11, pars. 5 and 6). They also cannot be held criminally liable even if the his intention to attack the appellants, a conduct easily explained by the
person killed by them was not Anselmo Balagtas, but Serapio Tecson, fact that he should have felt offended by the intrusion of persons in the
because they did so under an honest mistake of fact not due to room where he was peacefully lying down with his mistress. In such
negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil., 488). predicament, it was nothing but human on the part of the appellants to
employ force and to make use of their weapons in order to repel the
It is true that, under article 4 of the Revised Penal Code, criminal liability imminent attack by a person who, according to their belief, was Balagtas
is incurred by any person committing a felony although the wrongful act It was unfortunate, however that an innocent man was actually killed.
done be different from that which he intended; but said article is clearly But taking into consideration the facts of the case, it is, according to my
inapplicable since the killing of the person who was believed to be humble opinion, proper to apply herein the doctrine laid down in the case
Balagtas was, as already stated, not wrongful or felonious. of U.S. vs. Ah Chong (15 Phil., 488). In the instant case we have, as in
the case supra, an innocent mistake of fact committed without any fault
The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-
or carelessness on the part of the accused, who having no time to make
General, is not in point, inasmuch as the defendant therein, who
a further inquiry, had no alternative but to take the facts as they
intended to injure Hilario Lauigan with whom he had a quarrel, but killed
appeared to them and act immediately.
another by mistake, would not be exempted from criminal liability if he
actually injured or killed Hilario Lauigan, there being a malicious design The decision of the majority, in recognition of the special circumstances
on his part. The other case involved by the prosecution is U.S. vs. of this case which favored the accused-appellants, arrives at the
Donoso (3 Phil., 234). This is also not in point, as it appears that the conclusion that an incomplete justifying circumstance may be invoked,
defendants therein killed one Pedro Almasan after he had already and therefore, according to Article 69 of the Revised Penal Code, the
surrendered and allowed himself to be bound and that the said imposable penalty should be one which is lower by one or two degrees
defendants did not have lawful instructions from superior authorities to than that prescribed by law. This incomplete justifying circumstance is
capture Almasan dead or alive. that defined in Article 11, No. 5 of the Revised Penal Code, in favor of
"a person who acts in the fulfillment of a duty or in the lawful exercise of
The appealed judgment should therefore be reversed and the
a right or office." I believe that the application of this circumstance is not
appellants, Antonio Z. Oanis and Alberto Galanta, acquitted, with
proper. Article 69 of the Revised Penal Code provides as follows:
costs de oficio.
Art. 69. Penalty to be imposed when the crime committed is not wholly
excusable. A penalty lower by one or two degrees than that
prescribed by law shall be imposed if the deed is not wholly excusable
HONTIVEROS, J., dissenting: by reason of the lack of some of the conditions required to justify the
same or to exempt from criminal liability in the several cases mentioned
According to the opinion of the majority, it is proper to follow the rule that
in articles 11 and 12, provided that the majority of such conditions be
a notorious criminal "must be taken by storm without regard to his life
present. The courts shall impose the penalty in the period which may be
which he has, by his conduct, already forfeited," whenever said criminal
deemed proper, in view of the number and nature of the conditions of
offers resistance or does something which places his captors in danger
exemption present or lacking.
This provision has been copied almost verbatim from Article 84 of the warning to the supposed criminal when both found him with Irene, and
old Penal Code of the Philippines, and which was also taken from Article the statement made by Capt. Monsod after the shooting.
87 of the Spanish Penal Code of 1870.
If appellant Oanis is entitled to a reversal of the decision of the court
Judge Guillermo Guevara, one of the members of the Committee below, there are more reasons in favor of the acquittal of appellant
created by Administrative Order No. 94 of the Department of Justice for Galanta. According to the evidence no bullet from the gun fired by this
the drafting of the Revised Penal Code, in commenting on Article 69, accused ever hit Serapio Tecson. Galanta was armed in the afternoon
said that the justifying circumstances and circumstances exempting of December 24, 1938, with a .45 caliber revolver (Exhibit L). He so
from liability which are the subject matter of this article are the following: testified and was corroborated by the unchallenged testimony of his
self-defense, defense of relatives, defense of strangers, state of superior officer Sgt. Valeriano Serafica. According to this witness, since
necessity and injury caused by mere accident. Accordingly, justifying Galanta was made a corporal of the Constabulary he was given, as part
circumstance No. 5 of Article 11 dealing with the fulfillment of a duty or of his equipment, revolver Exhibit L with a serial No. 37121. This gun
the lawful exercise of a right, calling or office, cannot be placed within its had been constantly used by Galanta, and, according to Sgt. Pedro
scope. Marasigan, who accompanied said accused when he took it from his
trunk in the barracks on the night of December 24, 1938, upon order of
The eminent treatiser of criminal law Mr. Groizard, in his commentary of
Captain Monsod, it was the same revolver which was given to the
Article 87 of the Spanish Penal Code of 1870 which is the source of
witness with five .45 caliber bullets and one empty shell. Fourteen
Article 69 of our Code says:
unused bullets were also taken from Galanta by Sergeant Serafica, thus
Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni completing his regular equipment of twenty bullets which he had on the
del que obra violentado por una fuerza inrresistible o impulsado por morning of December 24, 1938, when Sergeant Serafica made the usual
miedo insuperable de un mal igual o mayor, o en cumplimiento de un inspection of the firearms in the possession of the non-commissioned
deber, o en el ejercito legitimo de un derecho, oficio o cargo, o en virtud officers and privates of the constabulary post at Cabanatuan. Galanta
de obediencia debida, ni del que incurre en alguna omision hallandose stated that he had fired only one shot and missed. This testimony is
impedido por causa legitima o insuperable, puede tener aplicacion al corroborated by that of a ballistic expert who testified that bullets exhibits
articulo que comentamos. Y la razon es obvia. En ninguna de estas F and O, the first being extracted from the head of the deceased,
execiones hay pluralidad de requisitos. La irrespondabilidad depende causing wound No. 3 of autopsy report Exhibit C and the second found
de una sola condicion. Hay o no perturbacion de la razon; el autor del at the place of the shooting, had not been fired from revolver Exhibit
hecho es o no menor de nueve aos; existe o no violencia material o L nor from any other revolver of the constabulary station in Cabanatuan.
moral irresistible, etc., etc.; tal es lo que respectivamente hay que It was impossible for the accused Galanta to have substituted his
examinar y resolver para declarar la culpabilidad o inculpabilidad. Es, revolver because when Exhibit L was taken from him nobody in the
por lo tanto, imposible que acontezca lo que el texto que va al frente de barracks doubted that the deceased was none other than Balagtas.
estas lineas rquiere, para que se imponga al autor del hecho la Moreover, Exhibit L was not out of order and therefore there was no
penalidad excepcional que establece; esto es, que reason why Galanta should carry along another gun, according to the
falten algunos requisitos de los que la ley exige para eximir de natural course of things. On the other hand, aside from wound No. 3 as
responsabilidad, y que concurran el mayor numero de ellos, toda vez above stated, no other wound may be said to have been caused by a
que, en los casos referidos, la ley no exige multiples condiciones. .45 caliber revolver bullet. Doctor Castro's record gives the conclusion
that wound No. 2 must have been caused by a .45 caliber revolver bullet.
It must be taken into account the fact according to Article 69 a penalty Doctor Castro's record gives the conclusion that wound No. 2 must have
lower by one or two degrees than that prescribed by law shall be been caused by a .45 caliber bullet, but inasmuch as the diameter of the
imposed if the deed is not wholly excusable by reason of the lack of wound's entrance was only 8 mm., the caliber should be .32 and not .45,
some of the conditions required by the law to justify the same or exempt because according to the medico-legal expert who testified in this case,
from criminal liability. The word "conditions" should not be confused with a bullet of a .45 caliber will produce a wound entrance with either 11
the word "requisites". In dealing with justifying circumstance No. 5 Judge mm. or 12 mm. diameter. All other wounds found by the surgeon who
Guevara states: "There are two requisites in order that this circumstance performed the autopsy appeared to have been caused by bullets of a
may be taken into account: (a) That the offender acted in the lesser caliber. In consequence, it can be stated that no bullet fired by
performance of his duty or in the lawful exercise of a right; and (b) That Galanta did ever hit or kill Serapio Tecson and therefore there is no
the injury or offense committed be the necessary consequence of the reason why he should be declared criminally responsible for said death.
performance of a duty or the lawful exercise of a right or office." It is
evident that these two requisites concur in the present case if we
consider the intimate connection between the order given to the
appellant by Capt. Monsod, the showing to them of the telegram from
Manila to get Balagtas who was with a bailarina named Irene, the
conduct of said appellants in questioning Brigida Mallari and giving a
Adm. Case No. 3086 February 23, 1988 carrying with him foreign currency and foreign exchange instruments
(380 pieces) amounting to US$ 355,349.57, in various currency
ALEXANDER PADILLA, complainant,
denominations, to wit: Japanese Yen, Swiss Franc, Australian Dollar,
vs.
Singapore Dollar, HFL Guilder, French Franc, U.S. Dollar, English
THE HON. BALTAZAR R. DIZON, Presiding Judge of the Regional Trial
Pound, Malaysian Dollar, Deutsche Mark, Canadian Dollar and
Court of Pasay City Branch 113, respondent.
Hongkong Dollar, without any authority as provided by law. At the time
RESOLUTION the accused was apprehended, he was able to exhibit two currency
declarations which he was supposed to have accomplished upon his
arrival in Manila in previous trips, namely, CB Currency Declaration No.
05048, dated May 4, 1986 for US$39,600.00 and Japanese Yen
PER CURIAM:
4,000,000.00, and CB Currency Declaration No. 06346, dated June 29,
This is an administrative complaint, dated August 6, 1987, filed by the 1986 for Japanese Yen 6,600,000.00.
then Commissioner of Customs, Alexander Padilla, against respondent
An information was filed against Lo Chi Fai, with the RTC of Pasay City
Baltazar R. Dizon, RTC Judge, Branch 115, Pasay City, for rendering a
for violation of Sec. 6, Central Bank Circular No. 960, as follows:
manifestly erroneous decision due, at the very least, to gross
incompetence and gross ignorance of the law, in Criminal Case No. 86- That on or about the 9th day of July, 1986, in the City of Pasay, Metro
10126-P, entitled "People of the Philippines vs. Lo Chi Fai", acquitting Manila, Philippines and within the jurisdiction of this Honorable Court,
said accused of the offense charged, i.e., smuggling of foreign currency the above-named accused, Mr. LO CHI FAI, did then and there wilfully,
out of the country. unlawfully and feloniously attempt to take out of the Philippines through
the Manila International Airport the following foreign currencies in cash
Required by the Court to answer the complaint, the respondent judge
and in checks:
filed an Answer, dated October 6, 1987, reciting his "commendable
record as a fearless prosecutor" since his appointment as Assistant City
Japanese Yen Y 32,800,000.00
Fiscal of Manila on December 4, 1962, until his appointment eventually
as RTC Judge on February 18, 1983; that at in the reorganization of the
Swiss Franc
judiciary after the February 26, 1986 revolution, he was reappointed to SW. FR 6,9000.00
his present position; that his length of service as prosecutor and judge
is "tangible proof that would negate the allegations of the petitioner"
Australian Dollar A$ 17,425.00
(should be complainant), whereas the latter did not last long in the
service for reasons only known to him; that the decision involved in the
Singapore Dollar S$ 9,945.00
complaint was promulgated by respondent on September 29, 1986, but
the complaint against him was filed only on August 6, 1987, a clear
indication of malice and ill-will of the complainant
Deutscheto subject
Marck respondent DM 18,595.00
to harassment, humiliation and vindictiveness; that his decision, of which
he submits a copy (Annex A) as part of his Answer, is based on
Canadian Dollar CS 13,330.00
"fundamental principles and the foundation of rights and justice" and that
if there are mistakes or errors in the questioned decision, they are
Hongkong Dollar HK$ 15,630.00
committed in good faith. Accordingly, respondent prays for the dismissal
of the petition (should be complaint).
HFL Guilder HFL 430.00
The issue before the Court is whether or not the respondent judge is
guilty of gross incompetence or gross ignorance of the law in rendering
French
the decision in question. A judge can not be Franc
held to account or answer, F/6,860.00
Tourists and non-resident visitors may take out or send out from the widespread. It was because of this fear that he was urged by his
Philippine foreign exchange in amounts not exceeding such amounts of associates to come to Manila on July 8, 1986 to bring the money out of
foreign exchange brought in by them. For purposes of establishing the the Philippines.
for violation of Central Bank Circular No. 960, the respondent information, which according to the respondent should be respected
nonetheless chose to exonerate the accused based on his defense that since the Bureau of Customs "has the exclusive jurisdiction in the matter
the foreign currency he was bringing out of the country at the time he of seizure and forfeiture of the property involved in the alleged
was apprehended by the customs authorities were brought into the infringements of the aforesaid Central Bank Circular." In invoking the
Philippines by him and his alleged business associates on several provisions of CB Circular No. 960 to justify the release of US$ 3,000.00
previous occasions when they came to the Philippines, supposedly to to the accused, the respondent judge again displayed gross
be used for the purpose of investing in some unspecified or incompetence and gross ignorance of the law. There is nothing in the
undetermined business ventures; that this money was kept in the said CB Circular which could be taken as authority for the trial court to
Philippines and he precisely came to the Philippines to take the money release the said amount of U.S. Currency to the accused. According to
out as he and his alleged business associates were afraid that the the above-cited CB Circular, tourists may take out or send out from the
"attempted revolution" which occurred on July 6,1986 might spread. Philippines foreign exchange in amounts not exceeding such amounts
Such fantastic tale, although totally irrelevant to the matter of the criminal of foreign exchange brought in by them; for the purpose of establishing
liability of the accused under the information, was swallowed by the such amount, tourists or non-resident temporary visitors bringing with
respondent-judge "hook, line and sinker." It did not matter to the them more than US$3,000.00 or its equivalent in other foreign
respondent that the foreign currency and foreign currency instruments currencies must declare their foreign exchange at points of entries upon
found in the possession of the accused when he was apprehended at arrival in the Philippines. In other words, CB Circular No. 960 merely
provides that for the purpose of establishing the amount of foreign
currency brought in or out of the Philippines, a tourist upon arrival is
required to declare any foreign exchange he is bringing in at the time of
his arrival, if the same exceeds the amount of US$3,000.00 or its
equivalent in other foreign currencies. There is nothing in said circular
that would justify returning to him the amount of at least US$3,000.00, if
he is caught attempting to bring out foreign exchange in excess of said
amount without specific authority from the Central Bank.
Accordingly, the Court finds the respondent Regional Trial Court Judge,
Baltazar R. Dizon, guilty of gross incompetence, gross ignorance of the
law and grave and serious misconduct affecting his integrity and
efficiency, and consistent with the responsibility of this Court for the just
and proper administration of justice and for the attainment of the
objective of maintaining the people's faith in the judiciary (People vs.
Valenzuela, 135 SCRA 712), it is hereby ordered that the Respondent
Judge be DISMISSED from the service. All leave and retirement benefits
and privileges to which he may be entitled are hereby forfeited with
prejudice to his being reinstated in any branch of government service,
including government-owned and/or controlled agencies or
corporations.
SO ORDERED.
This is an appeal by certiorari under Rule 45 of the Revised Rules of leasing agreement whereby LS Finance would lease the garage
Court, from the decision* of the respondent Court of Appeals which equipments and petitioner would pay the corresponding rent with the
affirmed in toto the decision of the Regional Trial Court of Quezon City, option to buy the same. After the documentation was completed, the
Branch 104 finding the accused petitioner, guilty of violations of Batas equipment were delivered to petitioner who in turn issued a postdated
Pambansa Blg. 22, in Criminal Cases Q-35693 to 35696 before they check and gave it to Joey Gomez who, unknown to the petitioner,
were elevated on appeal to the respondent appellate Court under CA- delivered the same to Corazon Teng. When the check matured,
G.R. CR No. 04889. Petitioner requested through Joey Gomez not to deposit the check as
he (Magno) was no longer banking with Pacific Bank.
The antecedent facts and circumstances of the four (4) counts of the
offense charged, have been clearly illustrated, in the Comment of the To replace the first check issued, petitioner issued another set of six (6)
Office of the Solicitor General as official counsel for the public postdated checks. Two (2) checks dated July 29, 1983 were deposited
respondent, thus: and cleared while the four (4) others, which were the subject of the four
counts of the aforestated charges subject of the petition, were held
Petitioner was in the process of putting up a car repair shop sometime momentarily by Corazon Teng, on the request of Magno as they were
in April 1983, but a did not have complete equipment that could make not covered with sufficient funds. These checks were a) Piso Bank
his venture workable. He also had another problem, and that while he Check Nos. 006858, dated August 15, 1983, 006859 dated August 28,
was going into this entrepreneurship, he lacked funds with which to 1983 and 006860 dated September 15, 1983, all in the amount of
purchase the necessary equipment to make such business operational. P5,038.43 and No. 006861 dated September 28, 1983, in the amount of
Thus, petitioner, representing Ultra Sources International Corporation, P10,076.87. (Ibid., pp. 42 & 43).
approached Corazon Teng, (private complainant) Vice President of
Mancor Industries (hereinafter referred to as Mancor) for his needed car Subsequently, petitioner could not pay LS Finance the monthly rentals,
repair service equipment of which Mancor was a distributor, (Rollo, pp. thus it pulled out the garage equipments. It was then on this occasion
40-41) that petitioner became aware that Corazon Teng was the one who
advanced the warranty deposit. Petitioner with his wife went to see
Having been approached by petitioner on his predicament, who fully Corazon Teng and promised to pay the latter but the payment never
bared that he had no sufficient funds to buy the equipment needed, the came and when the four (4) checks were deposited they were returned
former (Corazon Teng) referred Magno to LS Finance and Management for the reason "account closed." (Ibid., p. 43)
Corporation (LB Finance for brevity) advising its Vice-President, Joey
Gomez, that Mancor was willing and able to supply the pieces of After joint trial before the Regional Trial Court of Quezon City, Branch
equipment needed if LS Finance could accommodate petitioner and 104, the accused-petitioner was convicted for violations of BP Blg. 22
provide him credit facilities. (Ibid., P. 41) on the four (4) cases, as follows:
The arrangement went through on condition that petitioner has to put up . . . finding the accused-appellant guilty beyond reasonable doubt of the
a warranty deposit equivalent to thirty per centum (30%) of the total offense of violations of B.P. Blg. 22 and sentencing the accused to
value of the pieces of equipment to be purchased, amounting to imprisonment for one year in each Criminal Case Nos. Q-35693, Q-
P29,790.00. Since petitioner could not come up with such amount, he 35695 and Q-35696 and to pay to complainant the respective amounts
requested Joey Gomez on a personal level to look for a third party who reflected in subject checks. (Ibid., pp. 25, 27)
could lend him the equivalent amount of the warranty deposit, however,
Reviewing the above and the affirmation of the above-stated decision of
unknown to petitioner, it was Corazon Teng who advanced the deposit
the court a quo, this Court is intrigued about the outcome of the checks
in question, on condition that the same would be paid as a short term
subject of the cases which were intended by the parties, the petitioner
loan at 3% interest (Ibid., P. 41)
on the one hand and the private complainant on the other, to cover the
The specific provision in the Leasing Agreement, reads: "warranty deposit" equivalent to the 30% requirement of the financing
company. Corazon Teng is one of the officers of Mancor, the supplier of
the equipment subject of the Leasing Agreement subject of the high
financing scheme undertaken by the petitioner as lessee of the repair This angle is bolstered by the fact that since the petitioner or lessee
service equipment, which was arranged at the instance of Mrs. Teng referred to above in the lease agreement knew that the amount of
from the very beginning of the transaction. P29,790.00 subject of the cases, were mere accommodation-
arrangements with somebody thru Joey Gomez, petitioner did not even
By the nature of the "warranty deposit" amounting to P29,790.00
attempt to secure the refund of said amount from LS Finance,
corresponding to 30% of the "purchase/lease" value of the equipments
notwithstanding the agreement provision to the contrary. To argue that
subject of the transaction, it is obvious that the "cash out" made by Mrs.
after the termination of the lease agreement, the warranty deposit should
Teng was not used by petitioner who was just paying rentals for the
be refundable in full to Mrs. Teng by petitioner when he did not cash out
equipment. It would have been different if petitioner opted to purchase
the "warranty deposit" for his official or personal use, is to stretch the
the pieces of equipment on or about the termination of the lease-
nicety of the alleged law (B.P. No, 22) violated.
purchase agreement in which case he had to pay the additional amount
of the warranty deposit which should have formed part of the purchase For all intents and purposes, the law was devised to safeguard the
price. As the transaction did not ripen into a purchase, but remained a interest of the banking system and the legitimate public checking
lease with rentals being paid for the loaned equipment, which were account user. It did not intend to shelter or favor nor encourage users of
pulled out by the Lessor (Mancor) when the petitioner failed to continue the system to enrich themselves through manipulations and
paying possibly due to economic constraints or business failure, then it circumvention of the noble purpose and objective of the law. Least
is lawful and just that the warranty deposit should not be charged against should it be used also as a means of jeopardizing honest-to-goodness
the petitioner. transactions with some color of "get-rich" scheme to the prejudice of
well-meaning businessmen who are the pillars of society.
To charge the petitioner for the refund of a "warranty deposit" which he
did not withdraw as it was not his own account, it having remained with Under the utilitarian theory, the "protective theory" in criminal law,
LS Finance, is to even make him pay an unjust "debt", to say the least, "affirms that the primary function of punishment is the protective (sic) of
since petitioner did not receive the amount in question. All the while, said society against actual and potential wrongdoers." It is not clear whether
amount was in the safekeeping of the financing company, which is petitioner could be considered as having actually committed the wrong
managed, supervised and operated by the corporation officials and sought to be punished in the offense charged, but on the other hand, it
employees of LS Finance. Petitioner did not even know that the checks can be safely said that the actuations of Mrs. Carolina Teng amount to
he issued were turned over by Joey Gomez to Mrs. Teng, whose that of potential wrongdoers whose operations should also be clipped at
operation was kept from his knowledge on her instruction. This fact some point in time in order that the unwary public will not be failing prey
alone evoke suspicion that the transaction is irregular and immoral per to such a vicious transaction (Aquino, The Revised Penal Code, 1987
se, hence, she specifically requested Gomez not to divulge the source Edition, Vol. I, P. 11)
of the "warranty deposit".
Corollary to the above view, is the application of the theory that "criminal
It is intriguing to realize that Mrs. Teng did not want the petitioner to know law is founded upon that moral disapprobation . . . of actions which are
that it was she who "accommodated" petitioner's request for Joey immoral, i.e., which are detrimental (or dangerous) to those conditions
Gomez, to source out the needed funds for the "warranty deposit". Thus upon which depend the existence and progress of human society. This
it unfolds the kind of transaction that is shrouded with mystery, disappropriation is inevitable to the extent that morality is generally
gimmickry and doubtful legality. It is in simple language, a scheme founded and built upon a certain concurrence in the moral opinions of
whereby Mrs. Teng as the supplier of the equipment in the name of her all. . . . That which we call punishment is only an external means of
corporation, Mancor, would be able to "sell or lease" its goods as in this emphasizing moral disapprobation the method of punishment is in reality
case, and at the same time, privately financing those who desperately the amount of punishment," (Ibid., P. 11, citing People v. Roldan
need petty accommodations as this one. This modus operandi has in so Zaballero, CA 54 O.G. 6904, Note also Justice Pablo's view in People
many instances victimized unsuspecting businessmen, who likewise v. Piosca and Peremne, 86 Phil. 31).
need protection from the law, by availing of the deceptively called
Thus, it behooves upon a court of law that in applying the punishment
"warranty deposit" not realizing that they also fall prey to leasing
imposed upon the accused, the objective of retribution of a wronged
equipment under the guise of a lease-purchase agreement when it is a
society, should be directed against the "actual and potential
scheme designed to skim off business clients.
wrongdoers." In the instant case, there is no doubt that petitioner's four
This maneuvering has serious implications especially with respect to the (4) checks were used to collateralize an accommodation, and not to
threat of the penal sanction of the law in issue, as in this case. And, with cover the receipt of an actual "account or credit for value" as this was
a willing court system to apply the full harshness of the special law in absent, and therefore petitioner should not be punished for mere
question, using the "mala prohibitia" doctrine, the noble objective of the issuance of the checks in question. Following the aforecited theory, in
law is tainted with materialism and opportunism in the highest, degree. petitioner's stead the "potential wrongdoer", whose operation could be a
menace to society, should not be glorified by convicting the petitioner.
While in case of doubt, the case should have been resolved in favor of defenses of good faith and absence of criminal intent being unavailing
the accused, however, by the open admission of the appellate court in prosecutions for said offenses." (Ibid., p. 26)
below, oven when the ultimate beneficiary of the "warranty deposit" is of
The crux of the matter rests upon the reason for the drawing of the
doubtful certainty, the accused was convicted, as shown below:
postdated checks by the petitioner, i.e., whether they were drawn or
Nor do We see any merit in appellant's claim that the obligation of the issued "to apply on account or for value", as required under Section 1 of
accused to complainant had been extinguished by the termination of the B.P. Blg, 22. When viewed against the following definitions of the catch-
leasing agreement by the terms of which the warranty deposit terms "warranty" and "deposit", for which the postdated checks were
advanced by complainant was refundable to the accused as lessee issued or drawn, all the more, the alleged crime could not have been
and that as the lessor L.S. Finance neither made any liquidation of said committed by petitioner:
amount nor returned the same to the accused, it may he assumed that
a) Warranty A promise that a proposition of fact is true. A promise
the amount was already returned to the complainant. For these
that certain facts are truly as they are represented to be and that they
allegations, even if true, do not change the fact, admitted by appellant
will remain so: . . . (Black's Law Dictionary, Fifth Edition, (1979) p. 1423)
and established by the evidence, that the four checks were originally
issued on account or for value. And as We have already observed, in A cross-reference to the following term shows:
order that there may be a conviction under the from paragraph of Section
2 of B.P. Blg 22 with respect to the element of said offense that the Fitness for Particular Purpose:
check should have been made and issued on account or for value it
Where the seller at the time of contracting has reason to know any
is sufficient, all the other elements of the offense being present, that the
particular purpose for which the goods are required and that the buyer
check must have been drawn and issued in payment of an obligation.
is relying on the seller's skill or judgment to select or furnish suitable
Moreover, even granting, arguendo, that the extinguishment, after the goods, there is, unless excluded or modified, an implied warranty that
issuance of the checks, of the obligation in consideration of which the the goods shall be fit for such purpose, (Ibid., p. 573)
checks were issued, would have resulted in placing the case at bar
b) Deposit: Money lodged with a person as an earnest or security for
beyond the purview of the prohibition in Section 1 of BP Blg. 22, there is
the performance of some contract, to be forfeited if the depositor fails in
no satisfactory proof that there was such an extinguishment in the
his undertaking. It may be deemed to be part payment and to that extent
present case. Appellee aptly points out that appellant had not adduced
may constitute the purchaser the actual owner of the estate.
any direct evidence to prove that the amount advanced by the
complainant to cover the warranty deposit must already have been To commit to custody, or to lay down; to place; to put. To lodge for safe-
returned to her. (Rollo, p. 30) keeping or as a pledge to intrust to the care of another.
It is indubitable that the respondent Court of Appeals even disregarded The act of placing money in the custody of a bank or banker, for safety
the cardinal rule that the accused is presumed innocent until proven or convenience, to be withdrawn at the will of the depositor or under
guilty beyond reasonable doubt. On the contrary, the same court even rules and regulations agreed on. Also, the money so deposited, or the
expected the petitioner-appellant to adduce evidence to show that he credit which the depositor receives for it. Deposit, according to its
was not guilty of the crime charged. But how can be produce documents commonly accepted and generally understood among bankers and by
showing that the warranty deposit has already been taken back by Mrs. the public, includes not only deposits payable on demand and for which
Teng when she is an officer of Mancor which has interest in the certificates, whether interest-bearing or not, may be issued, payable on
transaction, besides being personally interested in the profit of her side- demand, or on certain notice or at a fixed future time. (Ibid., pp. 394-
line. Thus, even if she may have gotten back the value of the 395)
accommodation, she would still pursue collecting from the petitioner
Furthermore, the element of "knowing at the time of issue that he does
since she had in her possession the checks that "bounced".
not have sufficient funds in or credit with the drawee bank for the
That the court a quo merely relied on the law, without looking into the payment of such check in full upon its presentment, which check is
real nature of the warranty deposit is evident from the following subsequently dishonored by the drawee bank for insufficiency of funds
pronouncement: or credit or would have been dishonored for the same reason . . . is
inversely applied in this case. From the very beginning, petitioner never
And the trail court concluded that there is no question that the accused
hid the fact that he did not have the funds with which to put up the
violated BP Blg. 22, which is a special statutory law, violations of which
warranty deposit and as a matter of fact, he openly intimated this to the
are mala prohibita. The court relied on the rule that in cases ofmala
vital conduit of the transaction, Joey Gomez, to whom petitioner was
prohibita, the only inquiry is whether or not the law had been violated,
introduced by Mrs. Teng. It would have been different if this predicament
proof of criminal intent not being necessary for the conviction of the
was not communicated to all the parties he dealt with regarding the lease
accused, the acts being prohibited for reasons of public policy and the
agreement the financing of which was covered by L.S. Finance
Management.
WHEREFORE, the appealed decision is REVERSED and the accused-
petitioner is hereby ACQUITTED of the crime charged.
SO ORDERED.
Footnotes
That on or about May 11, 1995, which was within the canvassing period SO ORDERED.6
during the May 8, 1995 elections, in the Municipality of Alaminos,
The Court of Appeals likewise denied the motion for reconsideration.
Province of Pangasinan, Philippines, and within the jurisdiction of this
Hence, this appeal assigning the following as errors of the appellate
Honorable Court, the above-named accused, Election Officer Arsenia B.
court:
Garcia, Municipal Treasurer Herminio R. Romero, Public School District
Supervisor Renato R. Viray, Chairman, Vice-Chairman, and Member- I
Secretary, respectively, of the Municipal Board of Canvassers of
Alaminos, Pangasinan, tabulators Rachel Palisoc and Francisca de ON THE FIRST AND SECOND GROUNDS RELIED UPON BY THE
Vera, conspiring with, confederating together and mutually helping each RESPONDENT COURT, NAMELY, THAT IT COULD NOT HAVE BEEN
other, did, then and there, willfully, and unlawfully decrease[d] the votes SECRETARY VIRAY WHO DECREASED THE VOTES OF
received by senatorial candidate Aquilino Q. Pimentel, Jr. from six COMPLAINANT PIMENTEL SINCE HE MERELY RELIED ON WHAT
thousand nine hundred ninety-eight (6,998) votes, as clearly disclosed THE PETITIONER DICTATED, AND THAT IT COULD NOT HAVE
in the total number of votes in the one hundred fifty-nine (159) precincts ALSO BEEN THE TABULATORS BECAUSE PETITIONER WAS THE
of the Statement of Votes by Precincts of said municipality, with Serial ONE WHO READ THE ADDING [MACHINE] TAPE.
In a Decision dated September 11, 2000, the RTC acquitted all the ON THE FOURTH GROUND, NAMELY, THAT THE PETITIONER WAS
accused for insufficiency of evidence, except petitioner who was THE ONE WHO ENTERED THE REDUCED FIGURE OF 1,921 IN THE
convicted as follows: CERTIFICATE OF CANVASS (COC), Exh. "7", WHEN THE DUTY WAS
THAT OF THE SECRETARY OF THE BOARD.
xxx
IV
5. And finally, on the person of Arsenia B. Garcia, the Court pronounces
her GUILTY beyond reasonable doubt, of the crime defined under THE REDUCTION OF THE VOTES OF CANDIDATE PIMENTEL WAS
Republic Act 6646, Section 27 (b) for decreasing the votes of Senator CLEARLY NOT WILLFUL OR INTENTIONAL.7
Pimentel in the total of 5,034 and in relation to BP Blg. 881, considering
Petitioner contends that (1) the Court of Appeals judgment is erroneous,
that this finding is a violation of Election Offense, she is thus sentenced
based on speculations, surmises and conjectures, instead of substantial
to suffer an imprisonment of SIX (6) YEARS as maximum, but applying
evidence; and (2) there was no motive on her part to reduce the votes 1. After the votes in the 159 precincts of the municipality of Alaminos
of private complainant. were tallied, the results thereof were sealed and forwarded to the
Municipal Board of Canvassers for canvassing;
Respondent on the other hand contends that good faith is not a defense
in the violation of an election law, which falls under the class of mala 2. The number of votes received by each candidate in each precinct was
prohibita. then recorded in the Statement of Votes with appellant, in her capacity
as Chairman, reading the figures appearing in the results from the
The main issue is, Is a violation of Section 27(b) of Rep. Act No. 6646,
precincts and accused Viray, in his capacity as secretary of the Board,
classified under mala in se or mala prohibita? Could good faith and lack
entering the number in the Statements of Votes as read by the appellant.
of criminal intent be valid defenses?
Six Statements of Votes were filled up to reflect the votes received by
Generally, mala in se felonies are defined and penalized in the Revised each candidate in the 159 precincts of the Municipality of Alaminos,
Penal Code. When the acts complained of are inherently immoral, they Pangasinan.
are deemed mala in se, even if they are punished by a special
3. After the number of votes received by each candidate for each
law.8Accordingly, criminal intent must be clearly established with the
precincts were entered by accused Viray in the Statements of Votes,
other elements of the crime; otherwise, no crime is committed. On the
these votes were added by the accused Palisoc and de Vera with the
other hand, in crimes that are mala prohibita, the criminal acts are not
use of electrical adding machines.
inherently immoral but become punishable only because the law says
they are forbidden. With these crimes, the sole issue is whether the law 4. After the tabulation by accused Palisoc and de Vera, the
has been violated.9Criminal intent is not necessary where the acts are corresponding machine tapes were handed to appellant who reads the
prohibited for reasons of public policy.10 subtotal of votes received by each candidate in the precincts listed in
each Statement of Votes. Accused Viray [then] records the subtotal in
Section 27(b) of Republic Act No. 664611provides:
the proper column in the Statement of Votes.
SEC. 27. Election Offenses.- In addition to the prohibited acts and
5. After the subtotals had been entered by accused Viray, tabulators
election offenses enumerated in Sections 261 and 262 of Batas
accused Palisoc and de Vera added all the subtotals appearing in all
Pambansa Blg. 881, as amended, the following shall be guilty of an
Statement of Votes.
election offense:
6. After the computation, the corresponding machine tape on which the
xxx
grand total was reflected was handed to appellant who reads the same
(b) Any member of the board of election inspectors or board of and accused Viray enters the figure read by appellant in the column for
canvassers who tampers, increases, or decreases the votes received by grand total in the Statement of Votes.14
a candidate in any election or any member of the board who refuses,
Neither the correctness of the number of votes entered in the Statement
after proper verification and hearing, to credit the correct votes or deduct
of Votes (SOV) for each precinct, nor of the number of votes entered as
such tampered votes.
subtotals of votes received in the precincts listed in SOV Nos. 008417
xxx to 008422 was raised as an issue.
Clearly, the acts prohibited in Section 27(b) are mala in se.12For At first glance, however, there is a noticeable discrepancy in the addition
otherwise, even errors and mistakes committed due to overwork and of the subtotals to arrive at the grand total of votes received by each
fatigue would be punishable. Given the volume of votes to be counted candidate for all 159 precincts in SOV No. 008423.15The grand total of
and canvassed within a limited amount of time, errors and the votes for private complainant, Senator Aquilino Pimentel, was only
miscalculations are bound to happen. And it could not be the intent of 1,921 instead of 6,921, or 5,000 votes less than the number of votes
the law to punish unintentional election canvass errors. However, private complainant actually received. This error is also evident in the
intentionally increasing or decreasing the number of votes received by a Certificate of Canvass (COC) No. 436156 signed by petitioner, Viray and
candidate is inherently immoral, since it is done with malice and intent Romero.16
to injure another.
During trial of this case, petitioner admitted that she was indeed the one
Criminal intent is presumed to exist on the part of the person who who announced the figure of 1,921, which was subsequently entered by
executes an act which the law punishes, unless the contrary shall then accused Viray in his capacity as secretary of the board.17Petitioner
appear.13Thus, whoever invokes good faith as a defense has the likewise admitted that she was the one who prepared the COC (Exhibit
burden of proving its existence. A-7), though it was not her duty. To our mind, preparing the COC even
if it was not her task, manifests an intention to perpetuate the erroneous
Records show that the canvassing of votes on May 11, 1995 before the entry in the COC.18
Board of Canvassers of the Municipality of Alaminos, Pangasinan was
conducted as follows:
Neither can this Court accept petitioners explanation that the Board of
Canvassers had no idea how the SOV (Exhibit "6") and the COC
reflected that private complainant had only 1,921 votes instead of 6,921
votes. As chairman of the Municipal Board of Canvassers, petitioners
concern was to assure accurate, correct and authentic entry of the votes.
Her failure to exercise maximum efficiency and fidelity to her trust
deserves not only censure but also the concomitant sanctions as a
matter of criminal responsibility pursuant to the dictates of the law.19
The fact that the number of votes deducted from the actual votes
received by private complainant, Sen. Aquilino Pimentel, Jr. was not
added to any senatorial candidate does not relieve petitioner of liability
under Section 27(b) of Rep. Act No. 6646. The mere decreasing of the
votes received by a candidate in an election is already punishable under
the said provision.20
SO ORDERED.
G.R. No. L-74324 November 17, 1988 heirs of the victim in the amount of P13,940.00 plus moral damages of
P10,000.00 and exemplary damages of P5,000.00.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. Let the preventive imprisonment of Pugay be deducted from the principal
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y penalty.
MAGDALENA, accused-appellants.
Cost against both accused.
The Solicitor General for plaintiff-appellee.
SO ORDERED (p. 248, Records).
Citizens Legal Assistance Office for accused-appellants.
Not satisfied with the decision, both accused interposed the present
appeal and assigned the following errors committed by the court a quo:
Monico Alimorong alleging the same facts and imputing the respective
Q. Aside from Bayani being tickled with a stick on his ass, do you mean
acts of pouring of gasoline and setting the deceased on fire to the
to say you come to know that Pugay will pour gasoline unto him?
A. I do not know that would be that incident. deceased, this accused knew that the can contained gasoline. The
stinging smell of this flammable liquid could not have escaped his notice
Q. Why did you as(k) Pugay in the first place not to pour gasoline before
even before pouring the same. Clearly, he failed to exercise all the
he did that actually?
diligence necessary to avoid every undesirable consequence arising
A. Because I pity Bayani, sir. from any act that may be committed by his companions who at the time
were making fun of the deceased. We agree with the Solicitor General
Q. When you saw Pugay tickling Bayani with a stick on his ass you tried that the accused is only guilty of homicide through reckless imprudence
according to you to ask him not to and then later you said you asked not defined in Article 365 of the Revised Penal Code, as amended. In U.S.
to pour gasoline. Did Pugay tell you he was going to pour gasoline on vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as follows:
Bayani?
A man must use common sense and exercise due reflection in all his
A. I was not told, sir. acts; it is his duty to be cautious, careful, and prudent, if not from instinct,
then through fear of incurring punishment. He is responsible for such
Q. Did you come to know..... how did you come to know he was going
results as anyone might foresee and for acts which no one would have
to pour gasoline that is why you prevent him?
performed except through culpable abandon. Otherwise his own person,
A. Because he was holding on a container of gasoline. I thought it was rights and property, all those of his fellow-beings, would ever be exposed
water but it was gasoline. to all manner of danger and injury.
Q. It is clear that while Pugay was tickling Bayani with a stick on his ass, The proper penalty that the accused Pugay must suffer is an
he later got hold of a can of gasoline, is that correct? indeterminate one ranging from four (4) months of arresto mayor, as
minimum, to four (4) years and two (2) months of prision correccional,
A. Yes, sir.
as maximum. With respect to the accused Samson, the Solicitor General
Q. And when he pick up the can of gasoline, was that the time you told in his brief contends that "his conviction of murder, is proper considering
him not to pour gasoline when he merely pick up the can of gasoline. that his act in setting the deceased on fire knowing that gasoline had just
been poured on him is characterized by treachery as the victim was left
A. I saw him pouring the gasoline on the body of Joe.
completely helpless to defend and protect himself against such an
Q. So, it is clear when you told Pugay not to pour gasoline he was outrage" (p. 57, Rollo). We do not agree.
A. Yes, sir (Tsn, July 30, 1983, pp. 32-33). had some reason to kill the deceased before the incident. On the
contrary, there is adequate evidence showing that his act was merely a
It is thus clear that prior to the incident in question, Gabion was reading part of their fun-making that evening. For the circumstance of treachery
a comic book; that Gabion stopped reading when the group of Pugay to exist, the attack must be deliberate and the culprit employed means,
started to make fun of the deceased; that Gabion saw Pugay get the can methods, or forms in the execution thereof which tend directly and
of gasoline from under the engine of the ferris wheel; that it was while specially to insure its execution, without risk to himself arising from any
Pugay was in the process of pouring the gasoline on the body of the defense which the offended party might make.
deceased when Gabion warned him not to do so; and that Gabion later
saw Samson set the deceased on fire. There can be no doubt that the accused Samson knew very well that the
liquid poured on the body of the deceased was gasoline and a
However, there is nothing in the records showing that there was previous flammable substance for he would not have committed the act of setting
conspiracy or unity of criminal purpose and intention between the two the latter on fire if it were otherwise. Giving him the benefit of doubt, it
accused-appellants immediately before the commission of the crime. call be conceded that as part of their fun-making he merely intended to
There was no animosity between the deceased and the accused Pugay set the deceased's clothes on fire. His act, however, does not relieve
or Samson. Their meeting at the scene of the incident was accidental. It him of criminal responsibility. Burning the clothes of the victim would
is also clear that the accused Pugay and his group merely wanted to cause at the very least some kind of physical injuries on his person, a
make fun of the deceased. Hence, the respective criminal responsibility felony defined in the Revised Penal Code. If his act resulted into a graver
of Pugay and Samson arising from different acts directed against the offense, as what took place in the instant case, he must be held
deceased is individual and not collective, and each of them is liable only responsible therefor. Article 4 of the aforesaid code provides, inter alia,
for the act committed by him (U.S. vs. Magcomot, et. al. 13, Phil. 386; that criminal liability shall be incurred by any person committing a felony
U.S. vs. Abiog, et. al. 37 Phil. 1371). (delito) although the wrongful act done be different from that which he
intended.
The next question to be determined is the criminal responsibility of the
accused Pugay. Having taken the can from under the engine of the ferris As no sufficient evidence appears in the record establishing any
wheel and holding it before pouring its contents on the body of the qualifying circumstances, the accused Samson is only guilty of the crime
of homicide defined and penalized in Article 249 of the Revised Penal
Code, as amended. We are disposed to credit in his favor the ordinary
mitigating circumstance of no intention to commit so grave a wrong as
that committed as there is evidence of a fact from which such conclusion
can be drawn. The eyewitness Gabion testified that the accused Pugay
and Samson were stunned when they noticed the deceased burning
(Tsn, June 1, 1983, pp. 16-17).<re||an1w>
The lower court held the accused solidarily liable for P13,940.00, the
amount spent by Miranda's parents for his hospitalization, wake and
interment. The indemnity for death is P30,000.00. Hence, the indemnity
to the heirs of the deceased Miranda is increased to P43,940.00.
Both accused shall be jointly and severally liable for the aforesaid
amount plus the P10,000.00 as moral damages and P5,000.00 as
exemplary damages as found by the court a quo.
SO ORDERED.
After unsuccessfully seeking reconsideration, petitioner elevated the In the Resolution of 6 June 2007, we granted the Office of the Solicitor
matter to the Regional Trial Court of Pasig City, Branch 157 (RTC), in a Generals motion not to file a comment to the petition as the public
petition for certiorari (S.C.A. No. 2803). Meanwhile, petitioner sought respondent judge is merely a nominal party and private respondent is
from the MeTC the suspension of proceedings in Criminal Case No. represented by counsel.
82366, including the arraignment on 17 May 2005, invoking S.C.A. No.
2803 as a prejudicial question. Without acting on petitioners motion, the The Issues
MeTC proceeded with the arraignment and, because of petitioners
Two questions are presented for resolution: (1) whether petitioner
absence, cancelled his bail and ordered his arrest.4 Seven days later,
forfeited his standing to seek relief in S.C.A. 2803 when the MeTC
the MeTC issued a resolution denying petitioners motion to suspend
ordered his arrest following his non-appearance at the arraignment in
proceedings and postponing his arraignment until after his
Criminal Case No. 82366; and (2) if in the negative, whether petitioners
arrest.5 Petitioner sought reconsideration but as of the filing of this
constitutional right under the Double Jeopardy Clause bars further
petition, the motion remained unresolved.
proceedings in Criminal Case No. 82366.
The Ruling of the Court MeTCs refusal to defer arraignment (the order for which was released
days after the MeTC ordered petitioners arrest), petitioner sought
We hold that (1) petitioners non-appearance at the arraignment in
reconsideration. His motion remained unresolved as of the filing of this
Criminal Case No. 82366 did not divest him of personality to maintain
petition.
the petition in S.C.A. 2803; and (2) the protection afforded by the
Constitution shielding petitioner from prosecutions placing him in Petitioners Conviction in Criminal Case No. 82367
jeopardy of second punishment for the same offense bars further Bars his Prosecution in Criminal Case No. 82366
proceedings in Criminal Case No. 82366.
The accuseds negative constitutional right not to be "twice put in
Petitioners Non-appearance at the Arraignment in jeopardy of punishment for the same offense"13protects him from,
Criminal Case No. 82366 did not Divest him of Standing among others, post-conviction prosecution for the same offense, with
to Maintain the Petition in S.C.A. 2803 the prior verdict rendered by a court of competent jurisdiction upon a
valid information.14 It is not disputed that petitioners conviction in
Dismissals of appeals grounded on the appellants escape from custody
Criminal Case No. 82367 was rendered by a court of competent
or violation of the terms of his bail bond are governed by the second
jurisdiction upon a valid charge. Thus, the case turns on the question
paragraph of Section 8, Rule 124,8 in relation to Section 1, Rule 125, of
whether Criminal Case No. 82366 and Criminal Case No. 82367 involve
the Revised Rules on Criminal Procedure authorizing this Court or the
the "same offense." Petitioner adopts the affirmative view, submitting
Court of Appeals to "also, upon motion of the appellee or motu proprio,
that the two cases concern the same offense of reckless imprudence.
dismiss the appeal if the appellant escapes from prison or confinement,
The MeTC ruled otherwise, finding that Reckless Imprudence Resulting
jumps bail or flees to a foreign country during the pendency of the
in Slight Physical Injuries is an entirely separate offense from Reckless
appeal." The "appeal" contemplated in Section 8 of Rule 124 is a suit to
Imprudence Resulting in Homicide and Damage to Property "as the
review judgments of convictions.
[latter] requires proof of an additional fact which the other does not."15
The RTCs dismissal of petitioners special civil action for certiorari to
We find for petitioner.
review a pre-arraignment ancillary question on the applicability of the
Due Process Clause to bar proceedings in Criminal Case No. 82366 Reckless Imprudence is a Single Crime,
finds no basis under procedural rules and jurisprudence. The RTCs its Consequences on Persons and
reliance on People v. Esparas9 undercuts the cogency of its ruling Property are Material Only to Determine
because Esparas stands for a proposition contrary to the RTCs ruling. the Penalty
There, the Court granted review to an appeal by an accused who was
The two charges against petitioner, arising from the same facts, were
sentenced to death for importing prohibited drugs even though she
prosecuted under the same provision of the Revised Penal Code, as
jumped bail pending trial and was thus tried and convicted in absentia.
amended, namely, Article 365 defining and penalizing quasi-offenses.
The Court in Esparas treated the mandatory review of death sentences
The text of the provision reads:
under Republic Act No. 7659 as an exception to Section 8 of Rule
124.10 Imprudence and negligence. Any person who, by reckless
imprudence, shall commit any act which, had it been intentional, would
The mischief in the RTCs treatment of petitioners non-appearance at
constitute a grave felony, shall suffer the penalty of arresto mayor in its
his arraignment in Criminal Case No. 82366 as proof of his loss of
maximum period to prision correccional in its medium period; if it would
standing becomes more evident when one considers the Rules of
have constituted a less grave felony, the penalty of arresto mayor in its
Courts treatment of a defendant who absents himself from post-
minimum and medium periods shall be imposed; if it would have
arraignment hearings. Under Section 21, Rule 11411 of the Revised
constituted a light felony, the penalty of arresto menor in its maximum
Rules of Criminal Procedure, the defendants absence merely renders
period shall be imposed.
his bondsman potentially liable on its bond (subject to cancellation
should the bondsman fail to produce the accused within 30 days); the Any person who, by simple imprudence or negligence, shall commit an
defendant retains his standing and, should he fail to surrender, will be act which would otherwise constitute a grave felony, shall suffer the
tried in absentia and could be convicted or acquitted. Indeed, the 30-day penalty of arresto mayor in its medium and maximum periods; if it would
period granted to the bondsman to produce the accused underscores have constituted a less serious felony, the penalty of arresto mayor in
the fact that mere non-appearance does not ipso facto convert the its minimum period shall be imposed.
accuseds status to that of a fugitive without standing.
When the execution of the act covered by this article shall have only
Further, the RTCs observation that petitioner provided "no explanation resulted in damage to the property of another, the offender shall be
why he failed to attend the scheduled proceeding"12 at the MeTC is punished by a fine ranging from an amount equal to the value of said
belied by the records. Days before the arraignment, petitioner sought damages to three times such value, but which shall in no case be less
the suspension of the MeTCs proceedings in Criminal Case No. 82366 than twenty-five pesos.
in light of his petition with the RTC in S.C.A. No. 2803. Following the
A fine not exceeding two hundred pesos and censure shall be imposed punishment in quasi-crimes (as opposed to intentional crimes); (2) the
upon any person who, by simple imprudence or negligence, shall cause legislative intent to treat quasi-crimes as distinct offenses (as opposed
some wrong which, if done maliciously, would have constituted a light to subsuming them under the mitigating circumstance of minimal intent)
felony. and; (3) the different penalty structures for quasi-crimes and intentional
crimes:
In the imposition of these penalties, the court shall exercise their sound
discretion, without regard to the rules prescribed in Article sixty-four. The proposition (inferred from Art. 3 of the Revised Penal Code) that
"reckless imprudence" is not a crime in itself but simply a way of
The provisions contained in this article shall not be applicable:
committing it and merely determines a lower degree of criminal liability
1. When the penalty provided for the offense is equal to or lower than is too broad to deserve unqualified assent. There are crimes that by their
those provided in the first two paragraphs of this article, in which case structure cannot be committed through imprudence: murder, treason,
the court shall impose the penalty next lower in degree than that which robbery, malicious mischief, etc. In truth, criminal negligence in our
should be imposed in the period which they may deem proper to apply. Revised Penal Code is treated as a mere quasi offense, and dealt with
separately from willful offenses. It is not a mere question of classification
2. When, by imprudence or negligence and with violation of the or terminology. In intentional crimes, the act itself is punished; in
Automobile Law, to death of a person shall be caused, in which case the negligence or imprudence, what is principally penalized is the mental
defendant shall be punished by prision correccional in its medium and attitude or condition behind the act, the dangerous recklessness, lack of
maximum periods. care or foresight, the imprudencia punible. x x x x
Reckless imprudence consists in voluntary, but without malice, doing or Were criminal negligence but a modality in the commission of felonies,
failing to do an act from which material damage results by reason of operating only to reduce the penalty therefor, then it would be absorbed
inexcusable lack of precaution on the part of the person performing or in the mitigating circumstances of Art. 13, specially the lack of intent to
failing to perform such act, taking into consideration his employment or commit so grave a wrong as the one actually committed. Furthermore,
occupation, degree of intelligence, physical condition and other the theory would require that the corresponding penalty should be fixed
circumstances regarding persons, time and place. in proportion to the penalty prescribed for each crime when committed
willfully. For each penalty for the willful offense, there would then be a
Simple imprudence consists in the lack of precaution displayed in those
corresponding penalty for the negligent variety. But instead, our Revised
cases in which the damage impending to be caused is not immediate
Penal Code (Art. 365) fixes the penalty for reckless imprudence at
nor the danger clearly manifest.
arresto mayor maximum, to prision correccional [medium], if the willful
The penalty next higher in degree to those provided for in this article act would constitute a grave felony, notwithstanding that the penalty for
shall be imposed upon the offender who fails to lend on the spot to the the latter could range all the way from prision mayor to death, according
injured parties such help as may be in this hand to give. to the case. It can be seen that the actual penalty for criminal negligence
bears no relation to the individual willful crime, but is set in relation to a
Structurally, these nine paragraphs are collapsible into four sub-
whole class, or series, of crimes.18 (Emphasis supplied)
groupings relating to (1) the penalties attached to the quasi-offenses of
"imprudence" and "negligence" (paragraphs 1-2); (2) a modified penalty This explains why the technically correct way to allege quasi-crimes is
scheme for either or both quasi-offenses (paragraphs 3-4, 6 and 9); (3) to state that their commission results in damage, either to person or
a generic rule for trial courts in imposing penalties (paragraph 5); and property.19
(4) the definition of "reckless imprudence" and "simple imprudence"
Accordingly, we found the Justice of the Peace in Quizon without
(paragraphs 7-8). Conceptually, quasi-offenses penalize "the mental
jurisdiction to hear a case for "Damage to Property through Reckless
attitude or condition behind the act, the dangerous recklessness, lack of
Imprudence," its jurisdiction being limited to trying charges for Malicious
care or foresight, the imprudencia punible,"16 unlike willful offenses
Mischief, an intentional crime conceptually incompatible with the
which punish the intentional criminal act. These structural and
element of imprudence obtaining in quasi-crimes.
conceptual features of quasi-offenses set them apart from the mass of
intentional crimes under the first 13 Titles of Book II of the Revised Penal Quizon, rooted in Spanish law20 (the normative ancestry of our present
Code, as amended. day penal code) and since repeatedly reiterated,21 stands on solid
conceptual foundation. The contrary doctrinal pronouncement in People
Indeed, the notion that quasi-offenses, whether reckless or simple, are
v. Faller22 that "[r]eckless impudence is not a crime in itself x x x [but]
distinct species of crime, separately defined and penalized under the
simply a way of committing it x x x,"23 has long been abandoned when
framework of our penal laws, is nothing new. As early as the middle of
the Court en banc promulgated Quizon in 1955 nearly two
the last century, we already sought to bring clarity to this field by
decades after the Court decided Faller in 1939. Quizon rejected Fallers
rejecting in Quizon v. Justice of the Peace of Pampanga the proposition
conceptualization of quasi-crimes by holding that quasi-crimes under
that "reckless imprudence is not a crime in itself but simply a way of
Article 365 are distinct species of crimes and not merely methods of
committing it x x x"17 on three points of analysis: (1) the object of
committing crimes. Faller found expression in post-Quizon acquittal of "slight physical injuries thru reckless imprudence," with both
jurisprudence24 only by dint of lingering doctrinal confusion arising from charges grounded on the same act, the Court explained:34
an indiscriminate fusion of criminal law rules defining Article 365 crimes
Reason and precedent both coincide in that once convicted or acquitted
and the complexing of intentional crimes under Article 48 of the Revised
of a specific act of reckless imprudence, the accused may not be
Penal Code which, as will be shown shortly, rests on erroneous
prosecuted again for that same act. For the essence of the quasi offense
conception of quasi-crimes. Indeed, the Quizonian conception of quasi-
of criminal negligence under article 365 of the Revised Penal Code lies
crimes undergirded a related branch of jurisprudence applying the
in the execution of an imprudent or negligent act that, if intentionally
Double Jeopardy Clause to quasi-offenses, barring second prosecutions
done, would be punishable as a felony. The law penalizes thus the
for a quasi-offense alleging one resulting act after a prior conviction or
negligent or careless act, not the result thereof. The gravity of the
acquittal of a quasi-offense alleging another resulting act but arising from
consequence is only taken into account to determine the penalty, it does
the same reckless act or omission upon which the second prosecution
not qualify the substance of the offense. And, as the careless act is
was based.
single, whether the injurious result should affect one person or several
Prior Conviction or Acquittal of persons, the offense (criminal negligence) remains one and the same,
Reckless Imprudence Bars and can not be split into different crimes and prosecutions.35 x x x
Subsequent Prosecution for the Same (Emphasis supplied)
Quasi-Offense
Evidently, the Diaz line of jurisprudence on double jeopardy merely
The doctrine that reckless imprudence under Article 365 is a single extended to its logical conclusion the reasoning of Quizon.
quasi-offense by itself and not merely a means to commit other crimes
There is in our jurisprudence only one ruling going against this unbroken
such that conviction or acquittal of such quasi-offense bars subsequent
line of authority. Preceding Diaz by more than a decade, El Pueblo de
prosecution for the same quasi-offense, regardless of its various
Filipinas v. Estipona,36 decided by the pre-war colonial Court in
resulting acts, undergirded this Courts unbroken chain of jurisprudence
November 1940, allowed the subsequent prosecution of an accused for
on double jeopardy as applied to Article 365 starting with People v.
reckless imprudence resulting in damage to property despite his
Diaz,25 decided in 1954. There, a full Court, speaking through Mr.
previous conviction for multiple physical injuries arising from the same
Justice Montemayor, ordered the dismissal of a case for "damage to
reckless operation of a motor vehicle upon which the second
property thru reckless imprudence" because a prior case against the
prosecution was based. Estiponas inconsistency with the post-war Diaz
same accused for "reckless driving," arising from the same act upon
chain of jurisprudence suffices to impliedly overrule it. At any rate, all
which the first prosecution was based, had been dismissed earlier. Since
doubts on this matter were laid to rest in 1982 in Buerano.37 There, we
then, whenever the same legal question was brought before the Court,
reviewed the Court of Appeals conviction of an accused for "damage to
that is, whether prior conviction or acquittal of reckless imprudence bars
property for reckless imprudence" despite his prior conviction for "slight
subsequent prosecution for the same quasi-offense, regardless of the
and less serious physical injuries thru reckless imprudence," arising
consequences alleged for both charges, the Court unfailingly and
from the same act upon which the second charge was based. The Court
consistently answered in the affirmative in People v.
of Appeals had relied on Estipona. We reversed on the strength of
Belga26 (promulgated in 1957 by the Court en banc, per Reyes, J.), Yap
Buan:38
v. Lutero27 (promulgated in 1959, unreported, per Concepcion, J.),
People v. Narvas28 (promulgated in 1960 by the Court en banc, per Th[e] view of the Court of Appeals was inspired by the ruling of this Court
Bengzon J.), People v. Silva29 (promulgated in 1962 by the Court en in the pre-war case of People vs. Estipona decided on November 14,
banc, per Paredes, J.), People v. Macabuhay30 (promulgated in 1966 1940. However, in the case of People vs. Buan, 22 SCRA 1383 (March
by the Court en banc, per Makalintal, J.), People v. 29, 1968), this Court, speaking thru Justice J. B. L. Reyes, held that
Buan31 (promulgated in 1968 by the Court en banc, per Reyes, J.B.L.,
acting C. J.), Buerano v. Court of Appeals32 (promulgated in 1982 by Reason and precedent both coincide in that once convicted or acquitted
the Court en banc, per Relova, J.), and People v. City Court of of a specific act of reckless imprudence, the accused may not be
Manila33 (promulgated in 1983 by the First Division, per Relova, J.). prosecuted again for that same act. For the essence of the quasi offense
These cases uniformly barred the second prosecutions as of criminal negligence under Article 365 of the Revised Penal Code lies
constitutionally impermissible under the Double Jeopardy Clause. in the execution of an imprudent or negligent act that, if intentionally
done, would be punishable as a felony. The law penalizes thus the
The reason for this consistent stance of extending the constitutional negligent or careless act, not the result thereof. The gravity of the
protection under the Double Jeopardy Clause to quasi-offenses was consequence is only taken into account to determine the penalty, it does
best articulated by Mr. Justice J.B.L. Reyes in Buan, where, in barring a not qualify the substance of the offense. And, as the careless act is
subsequent prosecution for "serious physical injuries and damage to single, whether the injurious result should affect one person or several
property thru reckless imprudence" because of the accuseds prior persons, the offense (criminal negligence) remains one and the same,
and can not be split into different crimes and prosecutions.
xxxx complaint having been dismissed or otherwise disposed of, two other
criminal complaints were filed in the same justice of the peace court, in
. . . the exoneration of this appellant, Jose Buan, by the Justice of the
connection with the same collision one for damage to property through
Peace (now Municipal) Court of Guiguinto, Bulacan, of the charge of
reckless imprudence (Crim. Case No. 95) signed by the owner of one of
slight physical injuries through reckless imprudence, prevents his being
the vehicles involved in the collision, and another for multiple physical
prosecuted for serious physical injuries through reckless imprudence in
injuries through reckless imprudence (Crim. Case No. 96) signed by the
the Court of First Instance of the province, where both charges are
passengers injured in the accident. Both of these two complaints were
derived from the consequences of one and the same vehicular
filed against Jose Belga only. After trial, both defendants were acquitted
accident, because the second accusation places the appellant in second
of the charge against them in Crim. Case No. 88. Following his acquittal,
jeopardy for the same offense.39 (Emphasis supplied)
Jose Belga moved to quash the complaint for multiple physical injuries
Thus, for all intents and purposes, Buerano had effectively overruled through reckless imprudence filed against him by the injured
Estipona. passengers, contending that the case was just a duplication of the one
filed by the Chief of Police wherein he had just been acquitted. The
It is noteworthy that the Solicitor General in Buerano, in a reversal of his motion to quash was denied and after trial Jose Belga was convicted,
earlier stance in Silva, joined causes with the accused, a fact which did whereupon he appealed to the Court of First Instance of Albay. In the
not escape the Courts attention: meantime, the case for damage to property through reckless
imprudence filed by one of the owners of the vehicles involved in the
Then Solicitor General, now Justice Felix V. Makasiar, in his
collision had been remanded to the Court of First Instance of Albay after
MANIFESTATION dated December 12, 1969 (page 82 of the Rollo)
Jose Belga had waived the second stage of the preliminary
admits that the Court of Appeals erred in not sustaining petitioners plea
investigation. After such remand, the Provincial Fiscal filed in the Court
of double jeopardy and submits that "its affirmatory decision dated
of First Instance two informations against Jose Belga, one for physical
January 28, 1969, in Criminal Case No. 05123-CR finding petitioner
injuries through reckless imprudence, and another for damage to
guilty of damage to property through reckless imprudence should be set
property through reckless imprudence. Both cases were dismissed by
aside, without costs." He stressed that "if double jeopardy exists where
the Court of First Instance, upon motion of the defendant Jose Belga
the reckless act resulted into homicide and physical injuries. then the
who alleged double jeopardy in a motion to quash. On appeal by the
same consequence must perforce follow where the same reckless act
Prov. Fiscal, the order of dismissal was affirmed by the Supreme Court
caused merely damage to property-not death-and physical injuries.
in the following language: .
Verily, the value of a human life lost as a result of a vehicular collision
cannot be equated with any amount of damages caused to a motors The question for determination is whether the acquittal of Jose Belga in
vehicle arising from the same mishap."40 (Emphasis supplied) the case filed by the chief of police constitutes a bar to his subsequent
prosecution for multiple physical injuries and damage to property
Hence, we find merit in petitioners submission that the lower courts
through reckless imprudence.
erred in refusing to extend in his favor the mantle of protection afforded
by the Double Jeopardy Clause. A more fitting jurisprudence could not In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March 30,
be tailored to petitioners case than People v. Silva, 41 a Diaz progeny. 1954, the accused was charged in the municipal court of Pasay City with
There, the accused, who was also involved in a vehicular collision, was reckless driving under sec. 52 of the Revised Motor Vehicle Law, for
charged in two separate Informations with "Slight Physical Injuries thru having driven an automobile in a fast and reckless manner ... thereby
Reckless Imprudence" and "Homicide with Serious Physical Injuries thru causing an accident. After the accused had pleaded not guilty the case
Reckless Imprudence." Following his acquittal of the former, the was dismissed in that court for failure of the Government to prosecute.
accused sought the quashal of the latter, invoking the Double Jeopardy But some time thereafter the city attorney filed an information in the
Clause. The trial court initially denied relief, but, on reconsideration, Court of First Instance of Rizal, charging the same accused with damage
found merit in the accuseds claim and dismissed the second case. In to property thru reckless imprudence. The amount of the damage was
affirming the trial court, we quoted with approval its analysis of the issue alleged to be P249.50. Pleading double jeopardy, the accused filed a
following Diaz and its progeny People v. Belga:42 motion, and on appeal by the Government we affirmed the ruling. Among
other things we there said through Mr. Justice Montemayor
On June 26, 1959, the lower court reconsidered its Order of May 2, 1959
and dismissed the case, holding: The next question to determine is the relation between the first offense
of violation of the Motor Vehicle Law prosecuted before the Pasay City
[T]he Court believes that the case falls squarely within the doctrine of
Municipal Court and the offense of damage to property thru reckless
double jeopardy enunciated in People v. Belga, x x x In the case cited,
imprudence charged in the Rizal Court of First Instance. One of the tests
Ciriaco Belga and Jose Belga were charged in the Justice of the Peace
of double jeopardy is whether or not the second offense charged
Court of Malilipot, Albay, with the crime of physical injuries through
necessarily includes or is necessarily included in the offense charged in
reckless imprudence arising from a collision between the two
the former complaint or information (Rule 113, Sec. 9). Another test is
automobiles driven by them (Crim. Case No. 88). Without the aforesaid
whether the evidence which proves one would prove the other that is to Penal Code. Article 48 is a procedural device allowing single prosecution
say whether the facts alleged in the first charge if proven, would have of multiple felonies falling under either of two categories: (1) when a
been sufficient to support the second charge and vice versa; or whether single act constitutes two or more grave or less grave felonies (thus
one crime is an ingredient of the other. x x x excluding from its operation light felonies46); and (2) when an offense is
a necessary means for committing the other. The legislature crafted this
xxxx
procedural tool to benefit the accused who, in lieu of serving multiple
The foregoing language of the Supreme Court also disposes of the penalties, will only serve the maximum of the penalty for the most
contention of the prosecuting attorney that the charge for slight physical serious crime.
injuries through reckless imprudence could not have been joined with
In contrast, Article 365 is a substantive rule penalizing not an act defined
the charge for homicide with serious physical injuries through reckless
as a felony but "the mental attitude x x x behind the act, the dangerous
imprudence in this case, in view of the provisions of Art. 48 of the
recklessness, lack of care or foresight x x x,"47 a single mental attitude
Revised Penal Code, as amended. The prosecutions contention might
regardless of the resulting consequences. Thus, Article 365 was crafted
be true. But neither was the prosecution obliged to first prosecute the
as one quasi-crime resulting in one or more consequences.
accused for slight physical injuries through reckless imprudence before
pressing the more serious charge of homicide with serious physical Ordinarily, these two provisions will operate smoothly. Article 48 works
injuries through reckless imprudence. Having first prosecuted the to combine in a single prosecution multiple intentional crimes falling
defendant for the lesser offense in the Justice of the Peace Court of under Titles 1-13, Book II of the Revised Penal Code, when proper;
Meycauayan, Bulacan, which acquitted the defendant, the prosecuting Article 365 governs the prosecution of imprudent acts and their
attorney is not now in a position to press in this case the more serious consequences. However, the complexities of human interaction can
charge of homicide with serious physical injuries through reckless produce a hybrid quasi-offense not falling under either models that of
imprudence which arose out of the same alleged reckless imprudence a single criminal negligence resulting in multiple non-crime damages to
of which the defendant have been previously cleared by the inferior persons and property with varying penalties corresponding to light, less
court.43 grave or grave offenses. The ensuing prosecutorial dilemma is obvious:
how should such a quasi-crime be prosecuted? Should Article 48s
Significantly, the Solicitor General had urged us in Silva to reexamine
framework apply to "complex" the single quasi-offense with its multiple
Belga (and hence, Diaz) "for the purpose of delimiting or clarifying its
(non-criminal) consequences (excluding those amounting to light
application."44 We declined the invitation, thus:
offenses which will be tried separately)? Or should the prosecution
The State in its appeal claims that the lower court erred in dismissing proceed under a single charge, collectively alleging all the
the case, on the ground of double jeopardy, upon the basis of the consequences of the single quasi-crime, to be penalized separately
acquittal of the accused in the JP court for Slight Physical Injuries, thru following the scheme of penalties under Article 365?
Reckless Imprudence. In the same breath said State, thru the Solicitor
Jurisprudence adopts both approaches. Thus, one line of rulings (none
General, admits that the facts of the case at bar, fall squarely on the
of which involved the issue of double jeopardy) applied Article 48 by
ruling of the Belga case x x x, upon which the order of dismissal of the
"complexing" one quasi-crime with its multiple consequences48 unless
lower court was anchored. The Solicitor General, however, urges a re-
one consequence amounts to a light felony, in which case charges were
examination of said ruling, upon certain considerations for the purpose
split by grouping, on the one hand, resulting acts amounting to grave or
of delimiting or clarifying its application. We find, nevertheless, that
less grave felonies and filing the charge with the second level courts
further elucidation or disquisition on the ruling in the Belga case, the
and, on the other hand, resulting acts amounting to light felonies and
facts of which are analogous or similar to those in the present case, will
filing the charge with the first level courts.49 Expectedly, this is the
yield no practical advantage to the government. On one hand, there is
approach the MeTC impliedly sanctioned (and respondent Ponce
nothing which would warrant a delimitation or clarification of the
invokes), even though under Republic Act No. 7691,50 the MeTC has
applicability of the Belga case. It was clear. On the other, this Court has
now exclusive original jurisdiction to impose the most serious penalty
reiterated the views expressed in the Belga case, in the identical case
under Article 365 which is prision correccional in its medium period.
of Yap v. Hon. Lutero, etc., L-12669, April 30, 1959.45 (Emphasis
supplied) Under this approach, the issue of double jeopardy will not arise if the
"complexing" of acts penalized under Article 365 involves only resulting
Article 48 Does not Apply to Acts Penalized
acts penalized as grave or less grave felonies because there will be a
Under Article 365 of the Revised Penal Code
single prosecution of all the resulting acts. The issue of double jeopardy
The confusion bedeviling the question posed in this petition, to which the arises if one of the resulting acts is penalized as a light offense and the
MeTC succumbed, stems from persistent but awkward attempts to other acts are penalized as grave or less grave offenses, in which case
harmonize conceptually incompatible substantive and procedural rules Article 48 is not deemed to apply and the act penalized as a light offense
in criminal law, namely, Article 365 defining and penalizing quasi- is tried separately from the resulting acts penalized as grave or less
offenses and Article 48 on complexing of crimes, both under the Revised grave offenses.
The second jurisprudential path nixes Article 48 and sanctions a single The Solicitor General stresses in his brief that the charge for slight
prosecution of all the effects of the quasi-crime collectively alleged in physical injuries through reckless imprudence could not be joined with
one charge, regardless of their number or severity,51 penalizing each the accusation for serious physical injuries through reckless
consequence separately. Thus, in Angeles v. Jose,52 we interpreted imprudence, because Article 48 of the Revised Penal Code allows only
paragraph three of Article 365, in relation to a charge alleging "reckless the complexing of grave or less grave felonies. This same argument was
imprudence resulting in damage to property and less serious physical considered and rejected by this Court in the case of People vs. [Silva] x
injuries," as follows: x x:
[T]he third paragraph of said article, x x x reads as follows: [T]he prosecutions contention might be true. But neither was the
prosecution obliged to first prosecute the accused for slight physical
When the execution of the act covered by this article shall have only
injuries through reckless imprudence before pressing the more serious
resulted in damage to the property of another, the offender shall be
charge of homicide with serious physical injuries through reckless
punished by a fine ranging from an amount equal to the value of said
imprudence. Having first prosecuted the defendant for the lesser offense
damage to three times such value, but which shall in no case be less
in the Justice of the Peace Court of Meycauayan, Bulacan, which
than 25 pesos.
acquitted the defendant, the prosecuting attorney is not now in a position
The above-quoted provision simply means that if there is only damage to press in this case the more serious charge of homicide with serious
to property the amount fixed therein shall be imposed, but if there are physical injuries through reckless imprudence which arose out of the
also physical injuries there should be an additional penalty for the latter. same alleged reckless imprudence of which the defendant has been
The information cannot be split into two; one for the physical injuries, previously cleared by the inferior court.
and another for the damage to property, x x x.53 (Emphasis supplied)
[W]e must perforce rule that the exoneration of this appellant x x x by
By "additional penalty," the Court meant, logically, the penalty scheme the Justice of the Peace x x x of the charge of slight physical injuries
under Article 365. through reckless imprudence, prevents his being prosecuted for serious
physical injuries through reckless imprudence in the Court of First
Evidently, these approaches, while parallel, are irreconcilable. Instance of the province, where both charges are derived from the
Coherence in this field demands choosing one framework over the other. consequences of one and the same vehicular accident, because the
Either (1) we allow the "complexing" of a single quasi-crime by breaking second accusation places the appellant in second jeopardy for the same
its resulting acts into separate offenses (except for light felonies), thus offense.54 (Emphasis supplied)
re-conceptualize a quasi-crime, abandon its present framing under
Article 365, discard its conception under the Quizon and Diaz lines of Indeed, this is a constitutionally compelled choice. By prohibiting the
cases, and treat the multiple consequences of a quasi-crime as separate splitting of charges under Article 365, irrespective of the number and
intentional felonies defined under Titles 1-13, Book II under the penal severity of the resulting acts, rampant occasions of constitutionally
code; or (2) we forbid the application of Article 48 in the prosecution and impermissible second prosecutions are avoided, not to mention that
sentencing of quasi-crimes, require single prosecution of all the resulting scarce state resources are conserved and diverted to proper use.
acts regardless of their number and severity, separately penalize each
Hence, we hold that prosecutions under Article 365 should proceed from
as provided in Article 365, and thus maintain the distinct concept of
a single charge regardless of the number or severity of the
quasi-crimes as crafted under Article 365, articulated in Quizon and
consequences. In imposing penalties, the judge will do no more than
applied to double jeopardy adjudication in the Diaz line of
apply the penalties under Article 365 for each consequence alleged and
cases.1avvphi1
proven. In short, there shall be no splitting of charges under Article 365,
A becoming regard of this Courts place in our scheme of government and only one information shall be filed in the same first level court.55
Let a copy of this ruling be served on the President of the Senate and
the Speaker of the House of Representatives.
EN BANC able to differentiate right from wrong, fully aware of the nature of the
crime he committed and is equally decided to suffer for it in any manner
G.R. No. L-1477 January 18, 1950
or form.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
His version of the circumstances of the crime, his conduct and
vs.
conversation relative thereto, the motives, temptations and provocations
JULIO GUILLEN, defendant-appellant.
that preceded the act, were all those of an individual with a sound mind.
Mariano A. Albert for appellant.
On the other hand he is an man of strong will and conviction and once
Office of the Solicitor General Felix Bautista Angelo and Solicitor
arriving at a decision he executes, irrespective of consequences and as
Francisco A. Carreon for appellee.
in this case, the commission of the act at Plaza Miranda.
PER CURIAM, J.:
What is of some interest in the personality of Julio C. Guillen is his
This case is before us for review of, and by virtue of appeal from, the commission of some overt acts. This is seen not only in the present
judgment rendered by the Court of First Instance of Manila in case No. instance, but sometime when an employee in la Clementina Cigar
2746, whereby Julio Guillen y Corpus, or Julio C. Guillen, is found guilty Factory he engaged in a boxing bout Mr. Manzano, a Span-wanted to
beyond reasonable doubt of the crime of murder and multiple frustrated abuse the women cigar makers, and felt it his duty to defend them. One
murder, as charged in the information, and is sentenced to the penalty time he ran after a policeman with a knife in hand after being provoked
of death, to indemnify the of the deceased Simeon Valera (or Barrela) in to a fight several times. He even challenged Congressman Nueno to a
the sum of P2,000 and to pay the costs. fight sometime before when Mr. Nueno was running for a seat in the
Municipal Board of the City of Manila, after hearing him deliver one of
Upon arraignment the accused entered a plea of not guilty to the his apparently outspoken speeches.
charges contained in the information.
All these mean a defect in his personality characterized by a weakness
Then the case was tried in one of the branches of the Court of First of censorship especially in relation to rationalization about the
Instance of Manila presided over by the honorable Buenaventura consequences of his acts.
Ocampo who, after the submission of the evidence of the prosecution
and the defense, rendered judgment as above stated. In view of the above findings it is our considered opinion that Julio C.
Guillen is not insane but is an individual with a personality defect which
In this connection it should be stated that, at the beginning of the trial in Psychiatry is termed, Constitutional Psychopathic Inferiority.
and before arraignment, counsel de oficio for the accused moved that
the mental condition of Guillen be examined. The court, notwithstanding Final Diagnosis
that it had found out from the answers of the accused to questions
Not insane: Constitutional Psychopathic Inferiority, without psychosis.
propounded to him in order to test the soundness of his mind, that he
was not suffering from any mental derangement, ordered that Julio In view of the above-quoted findings of the medical board, and
Guillen be confined for Hospital, there to be examined by medical notwithstanding the contrary opinion of one Dr. Alvarez, who was asked
experts who should report their findings accordingly. This was done, by the defense to give his opinion on the matter, the court ruled that
and, according to the report of the board of medical experts, presided Guillen, not being insane, could be tired, as he was tired, for the offenses
over by Dr. Fernandez of the National Psychopathic Hospital, Julio he committed on the date in question.
Guillen was not insane. Said report (Exhibit L), under the heading
THE FACTS
"Formulation and Diagnosis," at pages 13 and 14, reads:
Upon careful perusal of the evidence and the briefs submitted by
FORMULATION AND DIAGNOSIS
counsel for the accused, the Solicitor General and their respective
Julio C. Guillen was placed under constant observation since admission. memoranda, we find that there is no disagreement between the
There was not a single moment during his whole 24 hours daily, that he prosecution and the defense, as to the essential facts which caused the
was not under observation. filing of the present criminal case against this accused. Those facts may
be stated as follows:
The motive behind the commission of the crime is stated above. The
veracity of this motivation was determined in the Narcosynthesis. That On the dates mentioned in this decision, Julio Guillen y Corpus, although
the narco-synthesis was successful was checked up the day after the not affirmed with any particular political group, has voted for the defeated
test. The narco-synthesis proved not only reveal any conflict or complex candidate in the presidential elections held in 1946. Manuel A. Roxas,
that may explain a delusional or hallucinatory motive behind the act. the successful candidate, assumed the office of President of the
Commonwealth and subsequently President of the President of the
Our observation and examination failed to elicit any sign or symptom of
Philippine Republic. According to Guillen, he became disappointed in
insanity in Mr. Julio C. Guillen. He was found to be intelligent, always
President Roxas for his alleged failure to redeem the pledges and fulfill
the promises made by him during the presidential election campaign; I was told by my conscience and by my God that there was a man to be
and his disappointment was aggravated when, according to him, blamed for all this: he had deceived the people, he had astounded them
President Roxas, instead of looking after the interest of his country, with no other purpose than to entice them; he even went to the extent of
sponsored and campaigned for the approval of the so-called "parity" risking the heritage of our future generations. For these reasons he
measure. Hence he determined to assassinate the President. should not continue any longer. His life would mean nothing as
compared with the welfare of eighteen million souls. And why should I
After he had pondered for some time over the ways and means of
not give up my life too if only the good of those eighteen million souls.
assassinating President Roxas, the opportunity presented itself on the
night of March 10, 1947, when at a popular meeting held by the Liberal These are the reasons which impelled me to do what I did and I am
Party at Plaza de Miranda, Quiapo, Manila attended by a big crowd, willing to bear up the consequences of my act. I t matters not if others
President Roxas, accompanied by his wife and daughter and will curse me. Time and history will show, I am sure, that I have only
surrounded by a number of ladies and gentlemen prominent in displayed a high degree of patriotism in my performance of my said act.
government and politics, stood on a platform erected for that purpose
Hurrah for a free Philippines.
and delivered his speech expounding and trying to convince his
thousand of listeners of the advantages to be gained by the Philippines, Cheers for the happiness of every Filipino home.
should the constitutional amendment granting American citizens the
same rights granted to Filipino nationals be adopted. May God pity on me.
Guillen had first intended to use a revolver for the accomplishment of his Amen.
purpose, but having lost said firearm, which was duly licensed, he
JULIO C. GUILLEN
thought of two hand grenades which were given him by an American
soldier in the early days of the liberation of Manila in exchange for two
A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the
bottles of whisky. He had likewise been weighing the chances of killing
request of Guillen by his nephew, was handed to him only at about 6
President Roxas, either by going to Malacaan, or following his intended
o'clock in the afternoon of March 10, 1947, for which reason said Exhibit
victim in the latter's trips to provinces, for instance, to Tayabas (now
B-1 appears unsigned, because he was in a hurry for that meeting at
Quezon) where the President was scheduled to speak, but having
Plaza de Miranda.
encountered many difficulties, he decided to carry out his plan at the
pro-parity meeting held at Plaza de Miranda on the night of March 10, When he reached Plaza de Miranda, Guillen was carrying two hand
1947. grenades concealed in a paper bag which also contained peanuts. He
buried one of the hand grenades (Exhibit D), in a plant pot located close
On the morning of that he went to the house of Amando Hernandez
to the platform, and when he decided to carry out his evil purpose he
whom he requested to prepare for him a document (Exhibit B), in
stood on the chair on which he had been sitting and, from a distance of
accordance with their pervious understanding in the preceding
about seven meters, he hurled the grenade at the President when the
afternoon, when they met at the premises of the Manila Jockey Club on
latter had just closed his speech, was being congratulated by
the occasion of an "anti-parity" meeting held there. On account of its
Ambassador Romulo and was about to leave the platform.
materially in this case, we deem it proper to quote hereunder the
contents of said document. An English translation (Exhibit B-2) from its General Castaeda, who was on the platform, saw the smoking, hissing,
original Tagalog reads: grenade and without losing his presence of mind, kicked it away from
the platform, along the stairway, and towards an open space where the
FOR THE SAKE OF A FREE PHILIPPINES
general thought the grenade was likely to do the least harm; and,
I am the only one responsible for what happened. I conceived it, I covering the President with his body, shouted to the crowd that
planned it, and I carried it out all by myself alone. It took me many days everybody should lie down. The grenade fell to the ground and exploded
and nights pondering over this act, talking to my own conscience, to my in the middle of a group of persons who were standing close to the
God, until I reached my conclusion. It was my duty. platform. Confusion ensued, and the crowd dispersed in a panic. It was
found that the fragments of the grenade had seriously injured Simeon
I did not expected to live long; I only had on life to spare. And had I
Varela (or Barrela ) who died on the following day as the result of
expected to lives to spare, I would not have hesitated either ton sacrifice
mortal wounds caused by the fragments of the grenade (Exhibits F and
it for the sake of a principle which was the welfare of the people.
F-1) Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang.
Thousands have died in Bataan; many more have mourned the loss of
Guillen was arrested by members of the Police Department about two
their husbands, of their sons, and there are millions now suffering. Their
hours after the occurrence. It appears that one Angel Garcia, who was
deeds bore no fruits; their hopes were frustrated.
one spectators at that meeting, saw how a person who was standing
next to him hurled an object at the platform and, after the explosion, ran
away towards a barber shop located near the platform at Plaza de explode, he could not prevent the persons who were around his main
Miranda. Suspecting that person was the thrower of the object that and intended victim from being killed or at least injured, due to the highly
exploded, Garcia went after him and had almost succeeded in holding explosive nature of the bomb employed by him to carry out his evil
him, but Guillen offered stiff resistance, got loose from Garcia and purpose.
managed to escape. Garcia pursued him, but some detectives,
Guillen, testifying in his own behalf, in answer to questions propounded
mistaking the former for the real criminal and the author of the explosion,
by the trial judge (page 96 of transcript) supports our conclusion. He
placed him under arrest. In the meantime, while the City Mayor and
stated that he performed the act voluntarily; that his purpose was to kill
some agents of the Manila Police Department were investigating the
the President, but that it did not make any difference to him if there were
affair, one Manuel Robles volunteered the information that the person
some people around the President when he hurled that bomb, because
with whom Angel Garcia was wrestling was Julio Guillen; that he
the killing of those who surrounded the President was tantamount to
(Manuel Robles) was acquainted with Julio Guillen for the previous ten
killing the President, in view of the fact that those persons, being loyal
years and had seen each other in the plaza a few moments previous to
to the President being loyal to the President, were identified with the
the explosion.
latter. In other word, although it was not his main intention to kill the
The police operatives interrogated Garcia and Robles, and Julio Guillen persons surrounding the President, he felt no conjunction in killing them
was, within two hours after the occurrence, found in his home at 1724 also in order to attain his main purpose of killing the President.
Juan Luna Street, Manila, brought to the police headquarters and
The facts do not support the contention of counsel for appellant that the
identified by Angel Garcia, as the same person who hurled towards the
latter is guilty only of homicide through reckless imprudence in regard to
platform the object which exploded and whom Garcia tried to hold when
the death of Simeon Varela and of less serious physical injuries in regard
he was running away.
to Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang, and
During the investigation conducted by the police he readily admitted his that he should be sentenced to the corresponding penalties for the
responsibility, although at the same time he tried to justify his action in different felonies committed, the sum total of which shall not exceed
throwing the bomb at President Roxas. He also indicated to his captors three times the penalty to be imposed for the most serious crime in
the place where he had hidden his so called last will quoted above and accordance with article 70 in relation to article 74 of the Revised Penal
marked Exhibit B, which was then unsigned by him and subsequently Code.
signed at the police headquarters.
In throwing hand grenade at the President with the intention of killing
Re-enacting the crime (Exhibit C), he pointed out to the police where he him, the appellant acted with malice. He is therefore liable for all the
had buried (Exhibit C-1) the other hand grenade (Exhibit D), and, in the consequences of his wrongful act; for in accordance with article 4 of the
presence of witnesses he signed a statement which contained his Revised Penal Code, criminal liability is incurred by any person
answers to question propounded to him by Major A. Quintos of the committing felony (delito) although the wrongful act done be different
Manila Police, who investigated him soon after his arrest (Exhibit E). from that which he intended. In criminal negligence, the injury caused to
From a perusal of his voluntary statement, we are satisfied that it tallies another should be unintentional, it being simply the incident of another
exactly with the declarations and made by him on the witness stand act performed without malice. (People vs. Sara, 55 Phil., 939.) In the
during the trial of this case. words of Viada, "in order that an act may be qualified as imprudence it
is necessary that either malice nor intention to cause injury should
THE ISSUES
intervene; where such intention exists, the act should qualified by the
In the brief submitted by counsel de oficio for this appellant, several felony it has produced even though it may not have been the intention
errors are assigned allegedly committed by the trial court, namely: first, of the actor to cause an evil of such gravity as that produced.' (Viada's
"in finding the appellant guilty of murder for the death of Simeon Comments on the Penal Code, vol. 7, 5th ed., p.7.) And, as held by this
Varela"; second, "in declaring the appellant guilty of the complex crime Court, a deliberate intent to do an unlawful act is essentially inconsistent
of murder and multiple frustrated murder"; third, "in applying sub-section with the idea of reckless imprudence. (People vs. Nanquil, 43 Phil., 232.)
1 of article 49 of the Revised Penal Code in determining the penalty to Where such unlawful act is wilfully done, a mistake in the identity of the
be imposed upon the accused"; andfourth, "in considering the intended victim cannot be considered as reckless imprudence. (People
concurrence of the aggravating circumstances of nocturnity and of vs. Gona, 54 Phil., 605)
contempt of public authorities in the commission of crime."
Squarely on the point by counsel is the following decision of the
The evidence for the prosecution, supported by the brazen statements Supreme Court of Spain:
made by the accused, shows beyond any shadow of doubt that, when
Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B
Guillen attended that meeting, carrying with him two hand grenades, to
a comprar tabaco, y habiendose negado este a darselo al fiado, se retira
put into execution his preconceived plan to assassinate President
a quel sin mediar entre ambos disputa alguna; pero; trnscurrido un
Roxas, he knew fully well that, by throwing one of those two hand
cuarto de hora, hallandose el estanquero despachando a C, se oye la
grenades in his possession at President Roxas, and causing it to
detonacion de un arma de fuego disparada por A desde la calle, other than his own spontaneous desistance." For the same reason we
quedando muertos en el acto C y el estanquero; supuesta la no qualify the injuries caused on the four other persons already named as
intencion en A de matar a C y si solo al estanquero, cabe calificar la merely attempted and not frustrated murder.
muerte de este de homicidio y la de c de imprudencia temeraria? La
In this connection, it should be stated that , although there is abundant
Sala de lo Criminal de la Auudiencia de Granada lo estimo asi, y
proof that , in violation of the provisions of article 148 of the Revised
condeno al procesado a catorse anos de reclusion por el homivcidio y a
Penal Code, the accused Guillen has committed among others the
un ao de prision correctional por la imprudencia. Aparte de que la
offense of assault upon a person in authority, for in fact his efforts were
muerte del estanquero debio calificarse de assesinato y no de
directed towards the execution of his main purpose of eliminating
homicidio, por haberse ejecutado con aleviosa. es evidente que la
President Roxas for his failure to redeem his electoral campaign
muerte de C, suponiendo que no se propusiera ejecutaria el procesado,
promises, by throwing at him in his official capacity as the Chief
no pudo calificarse de imprudencia teme raria, sino que tambien debio
Executive of the nation the hand grenade in question, yet, in view of the
declararsele responsable de la misma, a tenor de lo puesto en este
appropriate allegation charging Guillen with the commission of said
apartado ultimo del articulo; y que siendo ambas muertes producidas
offense, we shall refrain making a finding to that effect.
por un solo hecho, o sea por un solo disparo, debio imponerse al reo la
pena del delito de asesinato en el grado maximo, a tenor de lo dispuesto The complex crimes of murder and multiple attempted murder
en el art. 90 del Codigo, o sea la pena de muerte. Se ve, pues, committed by the accused with the single act of throwing a hand grenade
claramente que en el antedicha sentencia, aparte de otros articulos del at the President, was attended by the various aggravating
Codigo, se infringio por la Sala la disposicion de este apartado ultimo circumstances alleged in the information, without any mitigating
del articulo muy principalmente, y asi lo declaro el Tribunal Supremo en circumstance. But we do not deem it necessary to consider said
S. de 18 junio de 1872. (Gaceta de 1,0 de agosto.) (I Viada, 5th Ed., p. aggravating circumstances because in any event article 48 of the
42.) Revised Penal Code above-quoted requires that the penalty for the most
serious of said crimes be applied in its maximum period. The penalty for
Article 48 of the Revised Penal Code provides as follows:
murder is reclusion temporal in its maximum period to death. (Art. 248.)
Art. 48. Penalty for Complex Crimes. When a single act constitutes
It is our painful duty to apply the law and mete out to the accused the
two or more grave or less grave felonies, or when an offense is a
extreme penalty provided by it upon the facts and circumstances
necessary means for committing the other, the penalty for the most
hereinabove narrated.
serious crime shall be imposed, the same to be applied in its maximum
period. The sentence of the trial court being correct, we have no alternative but
to affirm it, and we hereby do so by a unanimous vote. The death
We think it is the above-quoted article and not paragraph 1 of article 49
sentence shall be executed in accordance with article 81 of the Revised
that is applicable. The case before us is clearly governed by the first
Penal Code, under authority of the Director of Prisons, on such working
clause of article 48 because by a single act, that a throwing highly
day as the trial court may fix within 30 days from the date the record
explosive hand grenade at President Roxas, the accused committed two
shall have been remanded. It is so ordered.
grave felonies, namely: (1) murder, of which Simeon Varela was the
victim; and (2) multiple attempted murder, of which President Roxas, Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Padilla, Tuason,
Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang were the Montemayor, Reyes and Torres, JJ., concur.
injured parties.
1995, convicting Rolusape Sabalones and Timoteo Beronga of murder penetrating (L) chest; gunshot wound (R) hand (palm); open fracture (L)
and frustrated murder. The convictions arose from a shooting incident clavicle (L) scapula; contusion (L) lung;
on June 1, 1985 in Talisay, Cebu, which resulted in the killing of two
thereby performing all the acts of execution which would produce the
persons and the wounding of three others, who were all riding in two
crime of [m]urder as a consequence but which, nevertheless, did not
vehicles which were allegedly ambushed by appellants.
produce it by reason of causes independent of the will of the perpetrator,
After conducting a preliminary investigation, Second Assistant Provincial i.e. the timely medical attendance.
Prosecutor Juanito M. Gabiana Sr. filed before the Regional Trial Court
IN VIOLATION of Article 248 of the Revised Penal Code.
(RTC) of Cebu City, Branch 7,[3] five amended Informations charging
four John Does, who were later identified as Rolusape Sabalones, 4) Criminal Case No. 9260 for frustrated murder:
Artemio Timoteo Beronga, Teodulo Alegarbes and Eufemio Cabanero,
That on the 1st day of June, 1985 at 11:45 oclock in the evening, more
with two counts of murder and three counts of frustrated murder. The
or less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Informations are quoted hereunder.
Province of Cebu, Philippines, and within the jurisdiction of this
1) Crim Case No. CBU-9257 for murder: Honorable Court, the above-named accused conspiring, confederating
and mutually helping one another, armed with high-powered firearms,
That on the 1st day of June, 1985, at 11:45 oclock in the evening, more
with intent to kill and treachery, did then and there wilfully, unlawfully and
or less, at Mansueto Village, Bulacao, Municipality of Talisay, Province
feloniously attack, assault and shoot ROGELIO PRESORES, who was
of Cebu, Philippines, and within the jurisdiction of this Honorable Court,
riding in a car and who gave no provocation, thereby inflicting upon the
the above-named accused, conspiring, confederating and mutually
latter the following injuries, to wit:
helping one another, armed with high-powered firearms, with intent to
kill and treachery, did then and there wilfully, unlawfully and feloniously gunshot wound, thru and thru right chest
attack, assault and shoot GLENN TIEMPO, who was riding [i]n a jeep
thereby performing all the acts of execution which would produce the
and who gave no provocation, thereby inflicting upon the latter several
crime of [m]urder as a consequence but which, nevertheless, did not
gunshot wounds, thereby causing his instantaneous death.
produce it by reason of causes independent of the will of the perpetrator,
CONTRARY TO Article 248 of the Revised Penal Code. i.e. the timely medical attendance.
2) Criminal Case No. 9258 for murder: IN VIOLATION of Article 248 of the Revised Penal Code.
That on the 1st day of June, 1985 at 11:45 oclock in the evening, more 5) Criminal Case No. 9261 for frustrated murder:
or less at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this
That on the 1st day of June, 1985 at 11:45 oclock in the evening, more hereby sentences each said accused to suffer the penalty of [e]ight (8)
or less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay, years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight
Province of Cebu, Philippines, and within the jurisdiction of this (8) months of [re]clusion [t]emporal, as maximum, to indemnify the
Honorable Court, the above-named accused conspiring, confederating victim, Rey Bolo, the sum of P20,000.00;
and mutually helping one another, armed with high-powered firearms,
In Crim. Case No. CBU-9260, for FRUSTRATED MURDER, defined and
with intent to kill and treachery, did then and there wilfully, unlawfully and
penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code,
feloniously attack, assault and shoot NELSON TIEMPO, who was riding
hereby sentences each said accused to suffer the penalty of [e]ight (8)
in a car and who gave no provocation, thereby inflicting upon the latter
years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight
the following injuries, to wit:
months of [r]eclusion [t]emporal, as maximum, to indemnify the victim,
Gunshot wound neck penetrating wound perforating trachea (cricoid) Rogelio Presores, the sum of P20,000.00;
thereby performing all the acts of execution which would produce the
In Crim. Case no. CBU-9261, for FRUSTRATED MURDER, defined and
crime of [m]urder as a consequence but which nevertheless, did not
penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code,
produce it by reason of causes independent of the will of the perpetrator,
hereby sentences each said accused to suffer the penalty of [e]ight (8)
i.e. the timely medical attendance.
years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight
IN VIOLATION of Article 248 of the Revised Penal Code. (8) months of [r]eclusion [t]emporal, as maximum, to indemnify the
victim, Nelson Tiempo, the sum of P20,000.00; and
Of the four indictees in the five Informations, Teodulo Alegarbes and
Artemio Timoteo Beronga were the first to be arraigned. Upon the arrest To pay the costs in all instances. The period of their preventive
of the two, the Informations were amended by the public prosecutor, with imprisonment shall be credited to each accused in full.
the conformity of the defense counsel, by substituting the names of the
SO ORDERED.[4]
two accused for the John Does appearing in the original
Informations. When arraigned, said accused, assisted by their Appellants filed a notice of appeal to the Court of Appeals. Thereafter,
respective lawyers, pleaded not guilty to the five Informations. the CA affirmed their conviction but sentenced them to reclusion
perpetua for the murders they were found guilty of. Accordingly, the
Alegarbes died in the course of trial; thus, the cases against him were
appellate court, without entering judgment, certified the case to the
dismissed. Accused Cabanero remained at large. Sabalones, on the
Supreme Court in accordance with Section 13, Rule 124 of the Rules of
other hand, was eventually arrested. Subsequently, he jumped bail but
Court. The dispositive portion of the CA Decision reads:
was recaptured in 1988 and thereafter pleaded not guilty during his
arraignment. WHEREFORE, the Decision of the trial court convicting accused-
appellants Rolusa[p]e Sabalones and Artemio Timoteo Beronga for
The cases against Sabalones and Beronga were jointly
murder in Crim. Cases Nos. CBU-9257 and CBU-9258, and [f]rustrated
tried. Thereafter, the lower court found them guilty beyond reasonable
[m]urder in Crim. Cases Nos. CBU-9259, CBU-9260, and CBU-9261 is
doubt of the crimes charged. The RTC disposed as follows:
hereby AFFIRMED; however, the penalties in the [f]rustrated [m]urder
WHEREFORE, premises above-set forth, the Court finds accused and [m]urder cases are hereby MODIFIED, such that both accused-
ROLUSAPE SABALONES and (ARTEMIO) TIMOTEO BERONGA, appellants are each sentenced to imprisonment of TEN (10) YEARS of
[g]uilty beyond reasonable doubt, as principals: [p]rision [m]ayor medium as minimum to SEVENTEEN (17) YEARS and
FOUR (4) MONTHS of [r]eclusion [t]emporal medium as maximum in
In Crim. Case No. CBU-9257, for MURDER, defined and penalized in
each of the three [f]rustrated [m]urder cases (Crim. Cases Nos. CBU-
Art. 248 of the Revised Penal Code, hereby sentences each said
9259, CBU-9260 and CBU-9261); and are each sentenced to
accused to suffer the penalty of [f]ourteen (14) years, [e]ight (8) months
[r]eclusion [p]erpetua in each of the two [m]urder cases (Crim. Cases
and [o]ne (1) day, as minimum, to [s]eventeen (17) years, [f]our (4)
Nos. CBU-9257 and CBU-9258). The indemnity to the victim in each
months and [o]ne (1) day, of [r]eclusion [t]emporal, as maximum, to
[f]rustrated [m]urder case shall remain. In conformity with Rule 124,
indemnify the heirs of deceased, Glenn Tiempo, the sum of P50,000.00;
Section 13 of the Rules of Court, however, this Court refrains from
In Crim. Case No. CBU-9258, for MURDER, defined and penalized in entering judgment, and hereby certifies the case and orders that the
Art. 248 of the Revised Penal Code, hereby sentences each said entire record hereof be elevated to the Supreme Court for review.[5]
accused to suffer the penalty of [f]ourteen (14) years, [e]ight (8) months
After the Court of Appeals certified the case to this Court, we required
and [o]ne (1) day, as minimum, to [s]eventeen (17) years, [f]our (4)
appellants to file supplemental briefs. Appellants failed to comply within
months and [o]ne (1) day, of [r]eclusion [t]emporal, as maximum, to
the prescribed period and were deemed to have waived their right to do
indemnify the heirs of deceased, Alfredo Nardo, the sum of P50,000.00;
so.[6] Thus, in resolving this case, this Court will address primarily the
In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, defined and arguments raised by the appellants in their Brief before the Court of
penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code, Appeals, which assailed the RTC Decision.
The Facts residence and while their car was 3 meters from the rear end of the jeep,
there was a volley of gunfire. He glanced at the direction of the gunfire
Version of the Prosecution
and saw the jeep being fired at by four persons, who were standing
The solicitor general[7] quoted the following factual findings of the trial behind a concrete wall, 42 inches in height, and armed with long
court: firearms. Thenceforth, he saw Alfredo Nardo, Glenn Tiempo and Rey
Bolo f[a]ll to the ground. (pp. 6-7, ibid.)
Edwin Santos, a resident of Mambaling, Cebu City stated that on June
1, 1985 at 6:00 oclock in the evening, he was at the residence of Inday He recognized accused, Rolusape Sabalones, as one of those who fired
Presores, sister of Rogelio Presores, located at Rizal Ave., Cebu City to at the jeep. He also identified in Court accused, Teodulo Alegarbes,
attend a wedding. He stayed until 9:00 oclock in the evening and Timoteo Beronga and another person, whom he recognized only
proceeded to the house of Maj. Tiempo at Basak, Mambaling, Cebu City through his facial appearance. (pp. 7-8, ibid.)
where a small gathering was also taking place. (pp. 3-6, tsn, April 7,
When the shots were directed [at] their car[,] they were able to bend their
1987)
heads low. When the firing stopped, he directed Nelson Tiempo to back
Arriving thereat, he saw Nelson and Glenn Tiempo as well as Rogelio out from the place. As the latter was maneuvering the car, the shooting
Presores, Rogelio Oliveros, Junior Villoria, Rey Bolo and Alfredo continued and he was hit in the breast while Nelson Tiempo, in the neck,
Nardo. (p. 7, ibid.) and the windshield of the vehicle was shattered. (p. 10, ibid.)
At about 11:00 oclock in the evening, Stephen Lim, who was also at the Arriving at the house of Maj. Tiempo, they were brought to Cebu Doctors
party, called their group and requested them to push his car. When the Hospital. He and Nelson Tiempo were operated on. He had incurred
engine started, the former asked them to drive his car home. (pp. 7- hospital expenses in the sum of P5,412.69, (Exh. I, K). (pp. 11-12, ibid.)
11, ibid.)
Ladislao Diola, Jr., [m]edico-[l]egal [o]fficer of the PC Crime Laboratory,
Together with Nelson Tiempo, who was at the wheel, Rogelio Presores, Regional Unit 7 stationed at Camp Sotero Cabahug, Cebu City
Rogelio Oliveros and Junior Villoria, they drove to the residence of remembered having performed a post-mortem examination on the dead
Stephen Lim at Mansueto Compound, Bulacao, Talisay, Cebu. (p. body of Glenn Tiempo on June 2, 1985 at the Cosmopolitan Funeral
12, ibid.) Homes, Cebu City. (p. 7, tsn, Nov. 11, 1987)
Glenn Tiempo, Rey Bolo and Alfredo Nardo also went with them riding He issued the necessary Death Certificate, (Exh. D) and Necropsy
in an owner-type jeep, driven by the latter, in order to bring back the Report, (Exh. F) and indicated therein that the victims cause of death
group [as] soon as the car of Mr. Lim was parked in his home. (p. was [c]ardio respiratory arrest due to [s]hock and [h]emorrhage
21, ibid.) [s]econdary to [g]unshot wounds to the trunk. (p. 8, ibid.)
The two vehicles traveled in convoy with the jeep 3 to 4 meters ahead The victim sustained gunshot wounds in the right chest and left lumbar
of the car. When they arrived at the gate of the house of Stephen Lim, area. (pp. 10-11, ibid.)
they were met with a sudden burst of gunfire. He looked at the direction
He explained that in gunshot wound no. 1, the wound entrance[,] which
where the gunfire came, and saw [the] persons [who] fired at the
[was] characterized by invaginated edges and contusion collar[,] was
jeep. He identified accused, Teodulo Alegarbes, Rolusape Sabalones
located in the right chest and the bullet went up to the left clavicle hitting
and Timoteo Beronga as the persons who fired at the vehicle.Except for
a bone which incompletely fractured it causing the navigation of the
Teodulo Alegarbes, who was naked from [the] waist up, the gunmen
bullet to the left and to the anterior side of the body. He recovered a slug,
wore clothes. (pp. 21-23; 13-16; 33, ibid.)
(Exh. G) below the muscles of the left clavicle. (p. 21, ibid.)
After firing at the jeep, the assailants shot the car they were riding[,]
Based on the trajectory of the bullet, the assailant could have been [o]n
hitting Nelson Tiempo on the throat and Rogelio Presores on the
the right side of the victim or in front of the victim but [o]n a lower level
breast. Despite the injury he sustained, Nelson Tiempo was able to
than the latter.
maneuver the car back to their residence. (pp. 17-19, ibid.)
In both gunshot wounds, he did not find any powder burns which would
He immediately informed Maj. Tiempo about the incident and the lat[t]er
indicate that the muzzle of the gun was beyond a distance of 12 inches
brought the victims to the Cebu Doctors Hospital. (p. 20, ibid.)
from the target. (p. 15, ibid.)
Rogelio Presores corroborated in substance the testimony of Edwin
At the time he conducted the autopsy, he noted that rigor mortis in its
Santos, being one of those who were in the car driven by Nelson Tiempo
early stage had already set in which denote[s] that death had occurred
to the residence of Stephen Lim. (pp. 4-6, tsn, Aug. 14, 1987)
5 to 6 hours earlier. (pp. 34-5, ibid.)
He further testified that when the jeep driven by Alfredo Nardo with Rey
Maj. Juan Tiempo, father of the victims, Glenn and Nelson Tiempo,
Bolo and Glenn Tiempo as passengers arrived at the front gate of Lims
testified that when he learned about the incident in question, he
immediately summoned military soldiers and together they proceeded the residence of Stephen Lim, they were suddenly fired upon. (pp. 5-8,
to the scene. (pp. 4-6, tsn, Nov. 12, 1988) tsn, March 6, 1989)
Arriving thereat, he saw the lifeless body of his son, Glenn. He He was hit in the right palm and left cheek. He jumped out of the vehicle
immediately carried him in his arms and rushed him to the hospital but and ran towards the car which was behind them but he was again shot
the victim was pronounced Dead on Arrival. (pp. 6-7, ibid.) at [,] [and hit] in the left scapular region. He was still able to reach the
road despite the injuries he sustained and tried to ask help from the
They buried his son, who was then barely 14 years old, at Cebu
people who were in the vicinity but nobody dared to help him, [they]
Memorial Park and had incurred funeral expenses (Exhs. K, L, O). (pp.
simply disappeared from the scene, instead. (pp. 8-9, ibid.)
7-8, ibid.)
He took a passenger jeepney to the city and had himself treated at the
His other son, Nelson, then 21 years old and a graduate of [m]edical
Cebu Doctors Hospital, and incurred medical expenses in the sum
[t]echology, was admitted at the Cebu Doctors Hospital for gunshot
of P9,000.00. (p. 9, ibid.)
wound in the neck. The latter survived but could hardly talk as a result
of the injuries he sustained. He had incurred medical and hospitalization He was issued a Medical Certificate, (Exh. N) by his attending physician.
expenses in the sum of P21,594.22, (Exh. H), (pp. 8-10, ibid.)
Dr. Miguel Mancao, a [p]hysician-[s]urgeon, recalled having attended
He had also incurred expenses in connection with the hospitalization of [to] the victims, Nelson Tiempo, Rey Bolo and Rogelio Presores at the
the injured victims, Rogelio Presores and Rey Bolo in the amount[s] Cebu Doctors Hospital on June 2, 1985. (pp. 7-8, 11, 14, tsn, May 30,
of P5,412.69, (exh. I) and P9,431.10, (Exh. J), respectively. (p. 11, ibid.) 1989)
He further stated that he [was] familiar with the accused, Roling Nelson Tiempo sustained gunshot wound[s] in the neck and in the right
Sabalones, because the latter had a criminal record in their office in chest but the bullet did not penetrate the chest cavity but only the left
connection with the kidnapping of a certain Zabate and Macaraya. (p. axilla. He was not able to recover any slugs because the same
16, ibid.) disintegrated while the other was thru and thru. The wound could have
proved fatal but the victim miraculously survived. As a consequence of
xxxxxxxxx
the injury he sustained, Nelson Tiempo permanently lost his voice
Dr. Jesus P. Cerna, [m]edico-[l]egal [o]fficer of the PC/INP, Cebu because his trachea was shattered. His only chance of recovery is by
Metrodiscom, had conducted an autopsy on the dead body of Alfredo coaching and speech therapy. He issued his Medical Certificate. (Exh.
Nardo, who sustained two (2) gunshot wounds in the lower lip and left O). (pp. 8-11, ibid.)
intraclavicular region, upon the request of the [c]hief of the Homicide
With regard to the patient, Rey Bolo, the latter suffered multiple gunshot
Section of Cebu Metrodiscom. He issued the victims Necropsy Report,
wounds in the left shoulder penetrating the chest and fracturing the 2nd,
(Exh. F) and Death Certificate, (Exh. G). (pp. 5-8, tsn, Dec. 4, 1987; pp.
3rd, and 4th ribs in the process, in the right hand fracturing the proximal
4-6, tsn, Nov. 29, 1988)
right thumb and in the mouth lacerating its soft tissues, per Medical
He stated that the wound of entrance in gunshot wound no. 1 was Certificate, (Exh. N) which he issued. (pp. 11-16, ibid.)
located in the lower lip, more or less[,] on the left side making an exit in
Based on the trajectory of the bullet, the gunman could have been in
the left mandibular region. (pp. 9-11, tsn, Dec. 4, 1987; pp. 6-8, tsn, Nov.
front of the victim, when gunshot would no. 1 was inflicted. (p. 30, ibid.)
29, 1988)
With respect to the patient, Rogelio Presores, the latter suffered [a]
In gunshot wound no. 2, the wound of entrance was in the left
gunshot wound in the chest with the wound of entrance in the right
intraclavicular region exiting at the back as reflected in the sketch, (Exh.
anterior chest exiting at the back which was slightly lower than the
F-2).This wound was fatal and [could] almost cause an instantaneous
wound of entrance. He issued the victims Medical Certificate, (Exh.
death considering that the bullet penetrated the thoracic cavity,
M).(pp. 34-35, ibid.)
lacerating the lungs and perforating the heart before making an exit. (pp.
11-13, tsn, Dec. 4, 1987; pp. 13-15, tsn, Nov. 29, 1988) Based on the location of the wound, the gunman could have been in
front of the victim but [o]n a slightly higher elevation than the latter. (pp.
He found no tattooing around the wound of entrance in both gunshot
35-36, ibid.)[8]
wounds. (pp. 8-9, tsn, Nov. 29, 1988)
Version of the Defense
He prepared and issued th[e] Necropsy Report, (Exh. F) and Death
Certificate, (Exh. G) of Alfredo Nardo who was identified to him by the Appellants interposed denial and alibi. Their version of the facts is
latters daughter, Anita Nardo. (pp. 26-27, ibid.) summarized by the trial court[9] thus:
Rey Bolo, one of the victims, testified that when the jeep he was riding
[in] together with Glenn Tiempo and Alfredo Nardo, reached the gate of
xxx Timoteo Beronga, a cristo or bet caller in the cockpit, testified that in to January 1985 and was reconnected only on June 17, 1985 (Exh. 4,
the afternoon of June 1, 1985, he was in the Talisay Sports Complex 4-A). (Tsn-Abangan, pp. 22-27, Jan. 31, 1990).
located at Tabunok, Talisay, Cebu to attend a cock-derby.
Remigio Villaver, a checker of VECO, whose area of responsibility
At about 7:00 oclock in the evening, he was fetched by his wife and they cover[ed] the towns of Talisay and San Fernando, Cebu had kept the
left taking a taxicab going to their residence in Lapulapu City. After record of disconnection of electrical supply of Mansueto Subdivision in
passing by the market place, they took a tricycle and arrived home at Bulacao, Talisay, Cebu and the same showed that on January 10, 1985,
8:00 oclock in the evening. (Exh. 3-A), a service order was issued by their office to the Mansueto
Homeowners for the permanent disconnection of their electric lights due
After taking his supper with his family, he went home to sleep at 10:30
to non-payment of their electric bills from March 1984 until January
in the evening. The following morning, after preparing breakfast, he went
1985. The actual disconnection took place on December 29, 1984.
back to sleep until 11:00 in the morning.
Witness Fredo Canete made efforts to corroborate their testimony. (Tsn-
On February 24, 1987, while he was playing mahjong at the corner of
Formentera, pp.3-5, Apr. 20, 1990).
R.R. Landon and D. Jakosalem Sts., Cebu City, complainant, Maj. Juan
Tiempo with some companions, arrived and after knowing that he [was] Vicente Cabanero, a resident of Mansueto Compound in Talisay, Cebu
Timmy, [which was] his nickname, the former immediately held him by since 1957 until the present, remembered that on June 1, 1985, between
the neck. 10:00 oclock and 11:00 oclock in the evening, he heard a burst of gunfire
about 15 to 20 armslength [sic] from his residence.
He ran away but the latter chased him and kicked the door of the house
where he hid. He was able to escape through the back door and took He did not bother to verify because he was scared since the whole place
refuge in Mandaue at the residence of Nito Seno, a driver of Gen. Emilio was in total darkness. (Tsn-Abangan, pp. 18-23, Feb. 22, 1990).
Narcissi.(Tsn-Abangan, pp. 4-17, October 19, 1989)
Marilyn Boc, another witness for the accused, stated that on the date
On February 27, 1987, upon the advi[c]e of his friend, they approached and time of the incident in question, while she was at the wake of Junior
Gen. Narcissi and informed him of the incident. The latter brought him Sabalones, younger brother of Roling Sabalones, who died on May 26,
to the Provincial Command Headquarters in Lahug, Cebu City to 1985, a sudden burst of gunfire occurred more or less 60 meters away.
confront Maj. Juan Tiempo.
Frightened, she went inside a room to hide and saw accused, Roling
After several days, he was brought by Maj. Tiempo to the PC Sabalones, sound asleep.
Headquarter[s] in Jones Ave., Cebu City where he was provided with a
She came to know accused, Timoteo Beronga, only during one of the
lawyer to defend him but he was instructed that he should assent to
hearings of this case and during the entire period that the body of the
whatever his lawyer would ask of him.
late Junior Sabalones [lay] in state at his residence, she never saw said
He was introduced to Atty. Marcelo Guinto, his lawyer, who made him accused.
sign an Affidavit, (Exh. U) the contents of which, co[u]ched in the dialect,
She was requested to testify in this case by Thelma Beronga, wife of
were read to him.
Timoteo Beronga. (Tsn-Abangan, pp. 9-13, February 28, 1990).
He also testified that before he was detained at the CPDRC,
Dr. Daniel Medina, while then the [r]esident [p]hysician of Southern
complainant brought him inside the shop of a certain Den Ong, where
Islands Hospital, Cebu City had treated the patient, Timoteo Beronga on
he was again mauled after he denied having any knowledge of the
March 18, 1987.
whereabouts of Roling Sabalones and the carbine.
Upon examination, he found out that the patient sustained linear
At the instance of Col. Medija, he was physically examined at the
abrasion, linear laceration and hematoma in the different parts of the
Southern Islands Hospital, Cebu City and was issued a [M]edical
body.Except for the linear laceration which he believed to have been
Certificate. (Tsn-Formentera, pp. 3-36, Jan. 18, 1990).
inflicted two or three days prior to [the] date of examination, all the other
Justiniano Cuizon, [a]ccount [o]fficer of the Visayan Electric Company injuries were already healed indicating that the same were inflicted 10
(VECO) South Extension Office, who is in charge of the billing, to 12 days earlier.
disconnection and reconnection of electric current, testified that based
He issued the corresponding Medical Certificate (Exh. 2) to the patient.
on the entries in their logbook, (Exh. 3) made by their checker, Remigio
(Tsn-Abangan, pp. 9-13, May 21, 1990).
Villaver, the electrical supply at the Mansueto Compound, Bulacao,
Talisay, Cebu, particularly the Mansueto Homeowners covered by Atty. Jesus Pono, counsel for accused Beronga, mounted the witness
Account No. 465-293000-0, (Exh. 4-B) was disconnected on January stand and averred that he [was] a resident of Mansueto Compound,
10, 1985, (Exh. 3-A) for non-payment of electric bills from March 1984 Bulacao, Talisay, Cebu. As shown in the pictures, (Exhs. 3, 4 & 5 with
submarkings) his house is enclosed by a concrete fence about 5 feet 6
inches tall. It is situated 6 meters from the residence of accused, Roling He was requested to testify in this case by his aunt and mother of
Sabalones, which was then being rented by Stephen Lim. Outside the accused Rolusape Sabalones. (Tsn-Tumarao, pp. 10-15, June 13,
fence [are] shrubs and at the left side is a lamp post provided with 200 1990).
watts fluorescent bulb.
Russo Sabalones, uncle of accused, Sabalones, averred that the latter
On June 1, 1985 at about 7:00 oclock in the evening, he saw Roling was once, one of his undercover agents while he was then the [c]hief of
Sabalones, whom he personally [knew] because they used to be the Intelligence Service of the PC from 1966 until 1968.
neighbors in Talisay, Cebu, at the wake of his brother, Federico
As part of their intelligence tradition, an undercover agent is not allowed
Sabalones, Jr. or Junior Sabalones, as mentioned repeatedly
to carry his real name. In the case of his nephew and accused, Rolusape
hereabout.They even had a talk and he noticed accused to be physically
Sabalones, the latter chose the name Paciano Laput which name was
indisposed being gravely affected by the loss of his only brother, who
recorded in their code of names.
met a violent death in the hands of an unknown hitman on May 26, 1985.
When he retired in 1968, the accused ceased to be an agent and xxx
He went home after he saw accused [lie] down on a bamboo bench to
likewise ceased to have the authority to use the name Paciano Laput.
rest.
(Tsn-Abangan, p. 12, July 23, 1990).
At about 12:00 oclock midnight, he was awakened by a rapid burst of
Alfonso Allere, a distant relative of the accused, remembered having
gunfire which emanated near his house. He did not attempt to go down
received a call from Roling Sabalones, one morning after the burial of
or look outside. He [was] in no position to tell whether or not the street
the latters brother, asking for his advise because of the threats [to] his
light was lighted.
life which he received thru telephone from the group of Nabing Velez
When he verified the following morning, he noticed bloodstains on the and the group of the military.
ground as well as inside the jeep which was parked 2 to 3 meters from
After he had advised accused to lie low, he had not heard of him, since
his fence and 50 to 70 meters from the house where Junior Sabalones
then.
[lay] in state. He observed that the jeep was riddled with bullets and its
windshield shattered. (Tsn-Abangan, pp. 3-16, June 6, 1990). Godofredo Mainegro of the Public Assistance and Complaint Action
Office of the Regional Unified Command 7, received a complaint from
He admitted that he used to be a counsel of accused, Roling Sabalones,
one Inocencia Sabalones on March 13, 1986.
in several cases, among which involved the death of a certain Garces
and Macaraya, which cases were however, dismissed by the Office of He recorded the complaint in their Complaint Sheet, (Exh. 6) and let
the Provincial Fiscal of Cebu. (Tsn-Tumarao, pp. 2-3, June 13, 1990). complainant affix her signature.
Doroteo Ejares, a relative of accused, testified that when he attended After the document was subscribed and sworn to before him, (Exh. 6-
the wake of Junior Sabalones on June 1, 1985 at 8:00 oclock in the C), he indorsed it to their [c]ommanding [o]fficer, Apolinario Castano.
evening, he saw accused lying on a bamboo bench in the yard of the (Tsn-Formentera, pp. 3-10, July 24, 1990).
house of the deceased.
Ret. Col. Apolinario Castano, recalled that while he was then with the
At past 10:00 oclock in the evening, accused excused himself as he was Regional Unified Command 7, his niece, Racquel Sabalones together
not feeling well and entered a room to rest while he remained by the with her husband Roling Sabalones, came to him for advi[c]e because
door and slept. the latter was afraid of his life brought about by the rampant killings of
which his brother and the son of Maj. Tiempo were victims.
At almost 12:00 oclock midnight, he was awakened by a burst of gunfire
which took place more or less 20 meters away and saw the people Considering that accuseds problem was a police matter, they
scamper[ing] for safety. He hid inside the room where accused was approached Gen. Ecarma, the then [c]ommander of the PC/INP, Recom
sleeping and peeped thru the door. Not long after, Marilyn Boc entered 7, and the latter referred them to his [c]hief of [s]taff, Col. Roger Denia,
and in a low voice talked about the incident. who informed them that there was no case filed against the
accused.Nevertheless, the latter was advised to be careful and consult
They decided to wake up the accused to inform him of what was
a lawyer.
happening, but the latter merely opened his eyes and realizing that
accused was too weak, they allowed him to go back to sleep. Inocencia Sabalones, mother of accused, Roling Sabalones, narrated
that on March 12, 1986 at past 10:00 oclock in the evening, she was
When he went home at past 5:00 oclock in the morning of June 2, 1985,
roused from sleep by a shout of a man demanding for Roling Sabalones.
he saw a jeep outside of the compound. He did not bother to investigate
or inquire about the incident as he was in a hurry to go home and prepare Upon hearing the name of her son, she immediately stood up and
for the burial of Junior Sabalones. peeped through the door of her store and saw men in fatigue uniforms
carrying long firearms. Thenceforth, these men boarded a vehicle and Frightened and cowed, they decided to seek the advice of Col.
left. Apolinario Castano, who after relating to him their fears, advised her
husband to lie low and to consult a lawyer.
On the following morning, she was again awakened by the persistent
shouts and pushing of the gate. When she verified, the man who To allay their apprehension, accused, Roling Sabalones, left Cebu City
introduced himself to her as Maj. Tiempo, ordered her to open the for Iligan, Manila and other cities to avoid those who were after
gate. Once opened, the men of Maj. Tiempo entered the house and him.When she learned about the threat made by Maj. Tiempo on her
proceeded to search for Roling Sabalones, whom Maj. Tiempo husband, she forewarned the latter not to return to Cebu.
suspected to have killed his son and shot another to near death. When
Marlyn Sabarita, an illegitimate daughter of Rolusape Sabalones, stated
she demanded for a search warrant, she was only shown a piece of
that in the night in question, she was at the wake of Junior Sabalones
paper but was not given the chance to read its contents.
and saw her Papa Roling, the herein accused, lying on the lawn of the
Racquel Sabalones, wife of accused, Rolusape Sabalones, maintained house of the deceased.
that on June 1, 1985 at 1:00 oclock in the afternoon, she was at the wake
She was already in the apartment with her Mama Racquel when she
of her brother-in-law, Junior Sabalones, at his residence in Bulacao,
heard a burst of gunfire. Upon instructions of the latter, she went out to
Talisay, Cebu.
call the police thru the phone located [in] the third apartment occupied
At 11:00 oclock in the evening of the same day, together with her 3 by a certain Jet. (Tsn-Tumarao, pp. 3-15, Oct. 15, 1990).
daughters as well as Marlyn Sabarita, Rose Lapasaran and Gloria
Edward Gutang, [a]sst. lay-out [e]ditor and [a]sst. [s]ports [e]ditor of Sun-
Mondejar, left the place in order to sleep in an unoccupied apartment
Star Daily, while then a military and police reporter had covered the
situated 30 meters away from the house where her deceased, brother-
shooting incident which took place on June 1, 1985 at the Mansueto
in-law, Junior, was lying in state, as shown in the Sketch, (Exh. 7 and
Compound, Bulacao, Talisay, Cebu.
submarkings) prepared by her. They brought with them a flashlight
because the whole place was in total darkness. At past 1:00 oclock dawn, together with their newspaper photographer,
Almario Bitang, they went to the crime scene boarding the vehicle of the
As they were about to enter the gate leading to her apartment she
Cosmopolitan Funeral Homes. Arriving thereat, they decided not to
noticed a sedan car coming towards them. She waited for the car to
proceed inside the compound because of fear. The place was then in
come nearer as she thought that the same belong[ed] to her friend, but
complete darkness.
the vehicle instead stopped at the corner of the road, (Exh. 7-F) and then
proceeded to the end portion of Mansueto Compound, (Exh. 7-G). As it Upon being informed that the victims were brought to Cebu City Medical
moved slowly towards the highway, she rushed inside the apartment. Center, they rushed to the place and met Maj. Tiempo hugging the dead
body of his 14-year old son. His photographer took a picture of that
Few minutes later, she heard a burst of gunfire outside their gate. She
pathetic scene. (Exh. 8-B).
immediately gathered her children and instructed Marlyn Sabarita to use
the phone situated at the third door apartment and call the police. Samson Sabalones, a retired [a]mbassador and uncle of Rolusape
Sabalones, posted a bail bond for his nephew with Eastern Insurance
After the lull of gunfire, she went to the terrace and saw people in civilian
Company, when a warrant for his arrest was issued by the Municipal
and in fatigue uniforms with firearms, gathered around the place.One of
Court, on March 12, 1986 because he was bothered by the fact that the
these men even asked her about the whereabouts of her husband,
latter was being unreasonably hunted by several groups. He even
whom she left sleeping in the house of the deceased.
advised the accused to appear in [c]ourt to clarify the nature of the case
At 8:30 in the morning of June 2, 1985, during the burial of Junior filed against him.
Sabalones, they were informed by Pedro Cabanero that Roling
Virgincita Pajigal, a resident of Butuan City, met accused, Rolusape
Sabalones was a suspect for the death of Nabing Velez and the son of
Sabalones, who introduced himself to her as Paciano Laput nicknamed,
Maj. Tiempo.
Ondo, in a massage clinic where she was working.
She believed that the reason why her husband was implicated in the
For less than a year, they lived together as husband and wife without
killing of Nabing Velez was because of the slapping incident involving
the benefit of marriage because according to her the accused was
her father-in-law, Federico Sabalones, Sr. and Nabing Velez which took
married but separated from his wife, whose name was never mentioned
place prior to the death of Junior Sabalones.
to her. For such a short span of time being together, her love for the
After the funeral, she began to receive mysterious calls at their accused developed to the extent that whatever happen[ed] to him, she
residence in Sikatuna St., Cebu City where they began staying since [would] always be there to defend him.
1978.She also noticed cars with tinted windows strangely parked in front
With the help of Maj. delos Santos, who advised her to always stay close
of their residence.
[to] the accused, she was able to board the same vessel. She saw the
latter clad in green T-shirt, (Exh. 14) and pants, handcuffed and fighting cocks at the Talisay Sports Complex, had an altercation and the
guarded. latter slapped his paralytic father and challenged him to ask one of his
sons to avenge what he had done to him. He came to know about the
Reaching Cebu City, they took a taxicab and as the vehicle went around
incident only after a week.
the city, she was instructed by Maj. Tiempo to place the towel, (Exh. 15)
which she found inside her bag, on the head of the accused. They He did not deny the fact that he was hurt by the actuation of the
stopped at the Reclamation Area and Maj. Tiempo pulled them out of deceased for humiliating his father but it did not occur to him to file a
the vehicle but she held on tightly to Ondo, ripping his shirt. This pulling case or take any action against the deceased because he was too busy
incident happened for several times but complainant failed to let them with his business and with his work as a bet caller in the cockpit.
out of the vehicle.
He advised his father to stay in Bohol to avoid further trouble because
The accused was finally brought to the Provincial Jail while she stayed he knew that the latter would frequent the cockpit[,] being a
in the residence of the accused. She returned to Butuan after a cockfight aficionado.
week. (Tsn-Formentera, pp. 5-33, Jan. 22, 1991).
Likewise, during the burial, he was informed by a PC soldier, Roger
Accused, Rolusape Sabalones, alias Roling, in his defense, with Capuyan, that he was also a suspect in the killing of the son of Maj.
ancillary incidental narrations, testified , that on June 1, 1985 at 6:00 Tiempo and even advised him to leave the place.
oclock in the evening, he was at the wake of his only brother, Junior
On the following days after the burial, his wife started to notice cars
Sabalones, who was killed on May 26, 1985.
suspiciously parked in front of their house and [she] also received
He had no idea as to who was responsible for the killing of his brother mysterious calls.
inasmuch as the latter had plenty of enemies. He also did not exert effort
Together with his wife, they decided to see Col. Apolinario Castao to
to look into the case and to place it under police authority since he had
seek his advise. The latter verified from the Cebu Metrodiscom and
lost faith in the capabilities of the police. The matter was however
learned that there was no case filed against him.
reported by his uncle, Ambassador Sabalones, to the authorities.
In the evening of June 6, 1985, he left for Iligan and after a month, he
He stayed at the wake until 10:00 oclock in the evening because he was
transferred to Ozamis and then to Pagadian. He likewise went to Manila
not feeling well. He retired in a small room adjacent to the sala of the
especially when he learned that his uncle, Samson Sabalones, had
house of the deceased. Not long after, he felt somebody waking him up
arrived from abroad. The latter posted a bond for his temporary liberty
but he merely opened his eyes and went back to sleep as he was really
immediately after being informed that a case was filed against him,
exhausted.
before the Municipal Court of Talisay.
At 6:30 the following morning, he was roused by his wife so he could
Despite xxx the bond put up by his uncle, he did not return to Cebu City
prepare for the burial. He came to know about the burst of gunfire which
because it came to his knowledge that Maj. Tiempo inquired from the
took place the previous night upon the information of his wife. He did not
bonding company as to his address.
take the news seriously as he was busy preparing for the burial of his
deceased brother, Jun. He also stayed in Marikina in the house of his friend and during his stay
in the said place, he registered as a voter and was issued a Voters
The funeral started at past 8:00 oclock in the morning and he noticed
Affidavit, (Exh. 19; Exh. R for the prosecution) which bore the name
the presence of Maj. Eddie Ricardo and his men, who were sent by Col.
Paciano Mendoza Laput which [was] his baptismal name. He explained
Castano purposely to provide the burial with military security, upon the
that the name[s] Mendoza and Laput [were] the middle name and
request of his wife.
surname, respectively of his mother. The name Rolusape was given to
He had a conversation with Maj. Ricardo who inquired about the him by his father and the same [was] not his registered name because
shooting incident which resulted in the death of the son of Maj. Tiempo during the old days, priests would not allow parents to name their
and others in his company. Also in the course of their conversation, he children with names not found in the Almanac; thus, Paciano [was] his
came to know that Nabing Velez was killed earlier on that same night in chosen name and the same appeared in his Baptismal Certificate, (Exh.
Labangon, Cebu [C]ity. 20) issued by the Parish of the Blessed Trinity of Talibon, Bohol. In his
Birth Certificate, it [was] the name Rolusape which appeared based
On the same occasion, Pedro Cabanero also notified him that he was a
upon the data supplied by his father.
suspect in the killing of Nabing Velez, a radio commentator of ferocious
character, who was engaged in a protection racket with several under He had used the name Paciano during the time when he [was] still a
his control. secret agent under his uncle, Gen. Russo Sabalones, when the latter
was still the [c]hief of the C-2 in 1966 until 1967 and as such, he was
He remembered that a month prior to the death of Nabing Velez, his
issued a firearm. He likewise used said name at the time he was
father, Federico Sabalones, Sr. and the deceased while matching their
employed at the Governors Office in Agusan and when he registered in
the Civil Service Commission to conceal his identity to protect himself because he knew that he (Rolusape Sabalones) was not
from those who were after him. responsible. The former also inquired from him as to the whereabouts
of the carbine.
From Marikina he proceeded to Davao and then to Butuan City where
he was made to campaign for the candidacy of Gov. Eddie Rama.When He also rebutted complainants testimony that upon their arrival here in
the latter won in the election, he was given a job at the Provincial Capitol Cebu City and while on board a taxicab, he directed the former [to] first
and later became an agent of the PC in Butuan using the name, Paciano go around the city to locate a certain Romeo Cabaero, whom he did not
Laput. know personally.[10]
During his stay in Butuan, he met Virgie Pajigal, a manicurist who Ruling of the Court of Appeals
became his live-in partner.
Giving full credence to the evidence of the prosecution, the Court of
On October 23, 1988 while he was at the Octagon Cockpit in Butuan Appeals affirmed the trial courts Decision convicting appellants of two
with Sgt. Tambok, he was arrested by Capt. Ochate and was brought to counts of murder and three counts of frustrated murder. Like the trial
the PC Headquarter[s] in Libertad, Butuan City and was court, it appreciated the qualifying circumstance of treachery and
detained. Among the papers confiscated from him was his Identification rejected appellants defense of alibi.
Card No. 028-88, (Exh. 21) issued by the PC Command bearing the
The Court of Appeals, however, ruled that the penalties imposed by the
name Paciano Laput.
trial court were erroneous. Hence, for each count of murder, it sentenced
On October 26, 1988 he was taken from the City Jail by Capt. Ochate appellants to reclusion perpetua. For each count of frustrated murder, it
and some soldiers, one of whom was Maj. Tiempo whom he met for the imposed the following penalty: ten years (10) of prision mayor (medium),
first time. as minimum, to seventeen years (17) years and four (4) months
of reclusion temporal (medium), as maximum. Sustaining the trial court,
On their way to Nasipit to board a vessel bound for Cebu City, Maj.
the Court of Appeals awarded indemnity of P20,000 to each of the
Tiempo made him lie flat on his belly and stepped on his back and
victims of frustrated murder. However, it was silent on the indemnity
handcuffed him. He cried in pain because of his sprained shoulder. A
of P50,000 awarded by the trial court to the heirs of each of the two
certain soldier also took his watch and ring.
deceased.
From the Capitol Building, they proceeded to CPDRC and on their way The Issues
thereto, Maj. Tiempo sat beside him inside the taxi and boxed him on
In his Brief,[12] Appellant Sabalones raised the following errors
the right cheek below the ear and pulled his cuffed hands apart.
allegedly committed by the trial court:
At the Provincial Jail, he was physically examined by its resident
I
physician, Dr. Dionisio Sadaya, and was also fingerprinted and
photographed, (Exh. 21). He was issued a Medical Certificate, (Exh. 22). The court a quo erred in finding that accused Sabalones and his friends
left the house where his brother Sabalones Junior was lying in state and
He further stated that he [was] acquainted with his co-accused Timoteo
went to their grisly destination amidst the dark and positioned
Beronga, known to him as Timmy being also a bet caller in the
themselves in defense of his turf against the invasion of a revengeful
cockpit. (Tsn-Formentera, pp. 5-23, Feb. 26, 1991; Tsn-Abangan, pp. 3-
gang of the supporters of Nabing Velez.
33, Feb. 27, 1991; Tsn-Abangan, pp. 4-18, Apr. 10, 1991).
II
As surrebuttal witness, accused Rolusape Sabalones denied that he
bribed a certain soldier because at the time he was arrested, his wallet The court a quo erred in finding that accused Sabalones and his two co-
as well as his wristwatch and ring worth P2,000.00 each were accused were identified as among the four gunmen who fired at the
confiscated and his hands tied behind his back. victims.
He also denied the allegation of Maj. Tiempo that he offered the latter III
the amount of P1,000.000.00 to drop the case against him, the truth
being that while they were on board a vessel bound for Cebu City, Maj. The court a quo erred in overlooking or disregarding physical evidence
Tiempo compelled him to tell [who] the real killers of his son [were] that would have contradicted the testimony of prosecution witnesses
Edwin Santos and Rogelio Presores that the gunmen were shooting at We stress that factual findings of the lower courts, the trial court and the
them from a standing position. Court of Appeals are, as a general rule, binding and conclusive upon the
Supreme Court.[17] We find nothing in the instant case to justify a
IV
reversal or modification of the findings of the trial court and the Court of
The court a quo erred in holding that the instant case is one of aberratio Appeals that appellants committed two counts of murder and three
ictus, which is not a defense, and that the defense of alibi interposed by counts of frustrated murder.
the accused may not be considered.
Edwin Santos, a survivor of the assault, positively pointed to and
V identified the appellants as the authors of the crime. His categorical and
straightforward testimony is quoted hereunder:[18]
The court a quo erred in not finding that the evidence of the prosecution
has not overcome the constitutional presumption of innocence in favor COURT:
of the accused.
Q You stated there was a gun fired. What happened next?
VI
WITNESS:
The court a quo erred in not acquitting the accused on ground of
A There was a rapid fire in succession.
reasonable doubt.
Q When you heard this rapid firing, what did you do?
In a Manifestation dated December 20, 1995, Appellant Beronga,
through counsel, adopted as his own the Brief of Sabalones.[13] A I tried to look from where the firing came from.
The foregoing assignment of errors shall be reformulated by the Court Q After that, what did you find?
into these three issues or topics: (1) credibility of the witnesses and
A I saw persons firing towards us.
sufficiency of the prosecution evidence, (2) defense of denial and alibi,
and (3) characterization of the crimes committed and the penalty Q Where were these persons situated when they were firing towards
therefor. you?
The Courts Ruling A Near the foot of the electric post and close to the cemented wall.
The appeal is devoid of merit. Q This electric post, was that lighted at that moment?
Credibility of Witnesses and Sufficiency of Evidence Q How far were these persons firing, to the place where you were?
Well-entrenched is the tenet that this Court will not interfere with the trial A From here to there (The witness indicating the distance by pointing to
courts assessment of the credibility of the witnesses, absent any a place inside the courtroom, indicating a distance of about 6 to 7
indication or showing that the trial court has overlooked some material meters, making the witness stand as the point of reference).
facts or gravely abused its discretion,[14] especially where, as in this
case, such assessment is affirmed by the Court of Appeals. As this Q Were you able to know how many persons fired towards you?
A Yes, sir.
Q Point at them. A Alfredo Nardo.
The Court directed the witness to go down from the witness stand and A So, I looked, whence the burst of gunfire came from.
[point] at them, Beronga and Alegarbes.
Q What did you see from that gunfire?
FISCAL GABIANA:
A I saw 4 persons standing at the back of the fence.
I would like to make it of record that on the bench of prisoner, only the
Q What were those 4 persons doing when they were standing at the
two accused were seated.
back of the fence?
COURT:
A They were bringing long firearms.
Make it of record that only two prisoners were present.
Q Did you recognize these persons?
Q Now, Mr. Santos, aside from these two accused you identified as
A I can clearly recognize one and the 3 persons[.] I can identify them, if
among those who fired [at] you on that evening, were there other
I can see them again.
persons that you saw on that particular occasion who fired at you?
Q If you are shown these persons, can you recognize them? Can you
A Yes, sir, there were[;] if I can see them, I can identify them.
name these persons?
Corroborating the foregoing, Rogelio Presores, another survivor, also
A No, sir. Only their facial appearance.
pointed to Timoteo Beronga, Teodulo Alegarbes and Roling Sabalones
as the perpetrators of the crime. His testimony proceeded in this Q What about the 3 persons?
manner:[19]
A Thats why the 3 persons, I do not know them. I can recognize only
Q When you arrived at the residence of Stephen Lim, can you remember their facial appearance.
of any unusual incident that took place?
Q What about one person?
A Yes, sir.
A Yes, sir.
Q What was that?
Q What is the name of the person?
A When the jeep arrived, the car was following.
A Roling Sabalones.
Q What happened next?
Q If Roling Sabalones is inside the courtroom, can you recognize Roling
A When the jeep was near the gate, the car was following. Sabalones?
Q The car was following the jeep, at what distance? A Yes, sir, he is around.
Q While the car was following the jeep at that distance of 3 to 4 meters, A Yes, he is there (The witness pointing to the person who answered
what happened? the name of Roling Sabalones).
A All of a sudden, we heard the burst of gunfire. Q I would like [you] again to please look around and see, if those
persons whom you know through their faces, if they are here around?
Q From what direction was the gunfire?
A The two of them (The witness pointing to the 2 persons, who, when
A Through the direction of the jeep.
asked, answered that his name [was] Teofilo Beronga and the other
Q After hearing the gunfire, what happened? [was] Alegarbes).
A We looked at the jeep. Indeed, we have carefully waded through the voluminous records of this
case and the testimonies of all the fifty-nine witnesses, and we find that
Q What did you see?
the prosecution has presented the required quantum of proof to
A We saw Alfredo Nardo and Glenn Tiempo and Rey Bolo f[a]ll to the establish that appellants are indeed guilty as charged. Appellants
ground. There were only 3. arguments, as we shall now discuss, fail to rebut this conclusion.
Like Santos, Rogelio Presores also stooped down when the firing disconnected as early as December 1984 and reconnected only on June
started, but he raised his head during a break in the gunfire: 27, 1985, they presented the testimonies of Vicente
Cabanero,[26]Remigio Villaver,[27] Fredo Canete[28]and Edward
Atty. Albino: Gutang.[29] The trial court, however, did not lend weight to said
testimonies, preferring to believe the statement of other prosecution
Q So, what did you do when you first heard that one shot?
witnesses that the place was lighted during that time.
A So, after the first shot, we looked towards the direction we were facing
The Court of Appeals sustained said findings by citing the testimonies
and when we heard the second shot, that was the time we stooped
of defense witnesses. Fredo Canete of the Visayan Electric Company
down.[21]
(VECO), for instance, admitted that it was so easy to connect and
He further testified: disconnect the lights. He testified thus:
Q And you said you stooped down inside the car when you heard the Q Now, as a cutter, what instruments do you usually use in cutting the
first firing to the jeep. Is that what you want the Court to understand[?] electrical connection of a certain place?
Presores: Canete:
Q So, you never saw who fired the successive shots to the car as you Q Does it need xxx very sophisticated instruments to disconnect the
said you stooped down inside the car? lights?
A The bursts of gunfire stopped for a while and that was the time I reared A No, these are the only instruments we use.
of [sic] my head.
Q Ordinary pliers and ordinary screw driver?
Q And that was the first time you saw them?
A Yes, sir.
A Yes, sir.[22]
Q And does [one] need to be an expert in electronic [sic] in order to
The records clearly show that two vehicles proceeded to the house of conduct the disconnection?
Stephen Lim on that fateful day. The first was the jeep where Alfredo
A No, sir.
Nardo, Glenn Tiempo and Rey Bolo were riding. About three to four
meters behind was the second car carrying Nelson Tiempo, Guillermo Q In other words, Mr. Canete, any ordinary electrician can cut it?
Viloria, Rogelio Oliveros and the two prosecution witnesses -- Edwin
Santos and Rogelio Presores.[23] As stated earlier, said witnesses A That is if they are connected with the Visayan Electric Company.
attested to the fact that after the first volley of shots directed at the jeep,
Q What I mean is that, can the cutting be done by any ordinary
they both looked at the direction where the shots were coming from, and
electrician?
they saw their friends in the jeep falling to the ground, as well as the
faces of the perpetrators.[24] It was only then that a rapid succession of A Yes, sir.[30]
Said witness even admitted that he could not recall if he did in fact cut In any case, we sustain the trial courts holding, as affirmed by the Court
the electrical connection of the Mansueto Compound.[31] The Court of of Appeals, that the extrajudicial statement of Beronga was executed in
Appeals further noted that none of the above witnesses were at the compliance with the constitutional requirements.[36] Extrajudicial
crime scene at or about the exact time that the ambush occurred. Thus, confessions, especially those which are adverse to the declarants
none was in a position to state with absolute certainty that there was interests are presumed voluntary, and in the absence of conclusive
allegedly no light to illuminate the gunmen when they rained bullets on evidence showing that the declarants consent in executing the same has
the victims.[32] been vitiated, such confession shall be upheld.[37]
Even assuming arguendo that the lampposts were not functioning at the The exhaustive testimony of Sgt. Miasco, who undertook the
time, the headlights of the jeep and the car were more than sufficient to investigation, shows that the appellant was apprised of his constitutional
illuminate the crime scene.[33] The Court has previously held that the rights to remain silent and to have competent and independent counsel
light from the stars or the moon, an oven, or a wick lamp or gasera can of his own choice.[38] Said witness also stated that Beronga was
give ample illumination to enable a person to identify or recognize assisted by Atty. Marcelo Guinto during the custodial
another.[34] In the same vein, the headlights of a car or a jeep are investigation.[39] In fact, Atty. Guinto also took the witness stand and
sufficient to enable eyewitnesses to identify appellants at the distance confirmed that Appellant Beronga was informed of his rights, and that
of 4 to 10 meters. the investigation was proper, legal and not objectionable. Indeed, other
than appellants bare allegations, there was no showing that Berongas
Extrajudicial Statement of Beronga
statement was obtained by force or duress.[40]
Appellants insist that Berongas extrajudicial statement was obtained
Equally unavailing is appellants reliance on the res inter alios acta rule
through violence and intimidation. Citing the res inter alios actarule, they
under Section 30, Rule 130 of the Rules of Court, which provides:
also argue that the said statement is inadmissible against
Sabalones. Specifically, they challenge the trial courts reliance on the The act or declaration of a conspirator relating to the conspiracy and
following portions of Berongas statement: during its existence, may be given in evidence against the co-conspirator
after the conspiracy is shown by evidence other than such act or
Q After Roling knew that Na[b]ing Velez was killed, have you observed
declaration.
[if] Roling and his companions prepared themselves for any eventuality?
Appellants assert that the admission referred to in the above provision
A It did not take long after we knew that Na[b]ing was killed, somebody
is considered to be against a co-conspirator only when it is
called up by telephone looking for Roling, and this was answered by
given during the existence of the conspiracy. They argue that Berongas
Roling but we did not know what they were conversing about and then
statement was made after the termination of the conspiracy; thus, it
Roling went back to the house of Junior after answering the phone. And
should not be admitted and used against Sabalones.
after more than two hours, we heard the sound of engines of vehicles
arriving, and then Meo, the man who was told by Roling to guard, The well-settled rule is that the extrajudicial confession of an accused is
shouted saying: They are already here[;] after that, Roling came out binding only upon himself and is not admissible as evidence against his
carrying a carbine accompanied by Tsupe, and not long after we heard co-accused, it being mere hearsay evidence as far as the other accused
gunshots and because of that we ran towards the house where the wake are concerned.[41] But this rule admits of exception. It does not apply
was. But before the gun-shots, I heard Pedring Sabalones father of when the confession, as in this case, is used as circumstantial evidence
Roling saying: You clarify, [t]hat you watch out for mistake[n] in identity, to show the probability of participation of the co-accused in the killing of
and after that shout, gunshots followed. [sic] Then after the gun-shots the victims[42] or when the confession of the co-accused is corroborated
Roling went back inside still carrying the carbine and shouted: GATHER by other evidence.[43]
THE EMPTY SHELLS AND MEO[,] YOU BRING A FLASHLIGHT, and
Berongas extrajudicial statement is, in fact, corroborated by the
then I was called by Meo to help him gather the empty shells of the
testimony of Prosecution Witness Jennifer Binghoy. Pertinent portions
carbine and also our third companion to gather the empty shells.
of said testimony are reproduced hereunder:
These arguments have no merit. In the first place, it is well to stress that
Q While you were at the wake of Jun Sabalones and the group were
appellants were convicted based primarily on the positive identification
sitting with Roling Sabalones, what were they doing?
of the two survivors, Edwin Santos and Rogelio Presores, and not only
on the extrajudicial statement, which merely corroborates the A They were gathered in one table and they were conversing with each
eyewitness testimonies. Thus, said arguments have no relevance to this other.
case. As the Court held in People vs. Tidula:[35]Any allegation of
violation of rights during custodial investigation is relevant and material xxxxxxxxx
Q In that evening of June 1, 1985, when you went there at the house of A careful reading of her testimony buttresses the finding of the trial court
Jun Sabalones, have you seen an armalite? that Rolusape Sabalones and his friends were gathered at one table,
conversing in whispers with each other, that there were two rifles on top
A Yes, sir.
of the table, and that they became panicky after hearing of the death of
Q Where did you see this armalite? Nabing Velez on the radio. Hence, the observation of the trial court that
they went to their grisly destination amidst the dark and positioned
A At the table where they were conversing. themselves in defense of his turf against the invasion of a revengeful
gang of supporters of the recently slain Nabing Velez.[45]
Q How many armalites or guns [did you see] that evening in that place?
Alleged Inconsistencies
A Two (2).
Q When you looked xxx through the window and saw there were two Appellants further claim that the relative positions of the gunmen, as
vehicles and there were bursts of gunfire, what happened after that? testified to by the eyewitnesses, were incompatible with the wounds
sustained by the victims. They cite the testimony of Dr. Ladislao Diola,
A I did not proceed to look xxx through the window because I stooped
who conducted the autopsy on Glenn Tiempo. He declared that the
down.
victim must necessarily be on a higher level than the assailant, in the
Q When you stooped down, what happened? light of the path of the bullet from the entrance wound to where the slug
was extracted. This finding, according to appellant, negates the
A After the burst of gunfire, I again opened the window. prosecutions account that the appellants were standing side by side
behind a wall when they fired at the victims. If standing, appellants must
Q And when again you opened the window, what happened?
have been on a level higher than that of the occupants of the vehicles;
A I saw two persons going towards the jeep. if beside each other, they could not have inflicted wounds which were
supposed to have come from opposite angles.
Q What transpired next after [you saw] those 2 persons?
We are not persuaded. The defense presumes that the victims were
A When they arrived there, they nodded their head[s].
sitting still when they were fired upon, and that they froze in the same
Q After that, what happened? position during and after the shooting. This has no testimonial
foundation. On the contrary, it was shown that the victims ducked and
A So, they went back to the direction where they came from, going to
hid themselves, albeit in vain, when the firing began. After the first volley,
the house of Sabalones.
they crouched and tried to take cover from the hail of bullets. It would
Q While they were going to the direction of the house of Sabalones, what have been unnatural for them to remain upright and still in their
transpired? seats. Hence, it is not difficult to imagine that the trajectories of the bullet
wounds varied as the victims shifted their positions. We agree with the
A I saw 5 to 6 persons coming from the highway and looking to the jeep, following explanation of the Court of Appeals:
and before they reached the jeep, somebody shouted that its ours.
The locations of the entry wounds can readily be explained. xxx Glenn
Q Who shouted? Tiempo, after looking in the direction of the explosion, turned his body
around; and since the ambushers were between the jeep and the car,
A The voice was very familiar to me.
he received a bullet in his right chest (wound no. 1) which traveled to the
left. As to wound No. 2, it can be explained by the spot where Major mistake in the identity of the victims, rather than aberratio ictus which
Tiempo found his fallen son. means mistake in the blow, characterized by aiming at one but hitting
the other due to imprecision in the blow.
Atty. Kintanar:
Second Issue:
Q: Upon being informed by these occupants who were ambushed and
[you] were able to return the car, what did you do? Denial and Alibi
Major Tiempo: Appellants decry the lower courts disregard of their defense of alibi. We
disagree. As constantly enunciated by this Court, the established
A: I immediately got soldiers and we immediately proceeded to the area
doctrine requires the accused to prove not only that he was at some
or to the place where my fallen son was located and when we reached x
other place at the time of the commission of the crime, but that it was
x xthe place, I saw my fallen son [in] a kneeling position where both
physically impossible for him at the time to have been present at
knees [were] touching the ground and the toes also and the forehead
the locus criminis or its immediate vicinity.[49] This the appellants
was touching towards the ground. (TSN, Feb. 12, 1988, p. 6)
miserably failed to do.
In such position, the second bullet necessarily traveled upwards in
Appellant Beronga testified that, at the time of the incident, he was in his
relation to the body, and thus the entry wound should be lower than the
residence in Lapulapu City, which was not shown to be so remote and
exit wound.There is no showing that both wounds were inflicted at the
inaccessible that it precluded his presence in Mansueto Subdivision.
same time.[47]
The alibi of Sabalones is even more unworthy of belief; he sought to
In any event, the witnesses saw that the appellants were the gunmen establish that he was a mere 20-25 meters away from the scene of the
who were standing side by side firing at them. They could have been in crime. He was allegedly in the house of his brother who was lying in
a different position and in another hiding place when they first fired, but state, which was so near the ambush site that some of the defense
this is not important. They were present at the crime scene, and they witnesses even testified that they were terrified by the gunfire. Clearly,
were shooting their rifles at the victims. appellants failed to establish the requisites of alibi.
Aberratio Ictus Furthermore, the defense of alibi cannot overcome the positive
identification of the appellants.[50] As aptly held by this Court in People
Appellants likewise accuse the trial court of engaging in conjecture in v. Nescio:[51]
ruling that there was aberratio ictus in this case. This allegation does not
advance the cause of the appellants. It must be stressed that the trial Alibi is not credible when the accused-appellant is only a short distance
court relied on the concept of aberratio ictus to explain why the from the scene of the crime. The defense of alibi is further offset by the
appellants staged the ambush, not to prove that appellants did in fact positive identification made by the prosecution witnesses. Alibi, to
commit the crimes. Even assuming that the trial court did err in reiterate a well-settled doctrine, is accepted only upon the clearest proof
explaining the motive of the appellants, this does not detract from its that the accused-appellant was not or could not have been at the crime
findings, as affirmed by the Court of Appeals and sustained by this Court scene when it was committed.
in the discussion above, that the guilt of the appellants was proven
Flight
beyond reasonable doubt.
Appellants further object to the finding that Sabalones, after the incident,
In any event, the trial court was not engaging in conjecture in so
made himself scarce from the place of commission. He left for Manila,
ruling. The conclusion of the trial court and the Court of Appeals that the
thence Mindanao on the supposition that he want[ed] to escape from the
appellants killed the wrong persons was based on the extrajudicial
wrath of Maj. Tiempo and his men for the death of Glenn Tiempo and
statement of Appellant Beronga and the testimony of Jennifer
the near fatal shooting of the other son or from the supporters of Nabing
Binghoy. These pieces of evidence sufficiently show that appellants
Velez. x x x On his supposedly borrowed freedom, he jumped bail and
believed that they were suspected of having killed the recently slain
hid himself deeper into Mindanao, under a cloak of an assumed
Nabing Velez, and that they expected his group to retaliate against
name. Why, did his conscience bother him for comfort?[52]
them. Hence, upon the arrival of the victims vehicles which they mistook
to be carrying the avenging men of Nabing Velez, appellants opened Appellants rationalized that Sabalones was forced to jump bail in order
fire. Nonetheless, the fact that they were mistaken does not diminish to escape two groups, who were allegedly out to get him, one of Nabing
their culpability. The Court has held that mistake in the identity of the Velez and the other of Major Tiempo. Their ratiocination is
victim carries the same gravity as when the accused zeroes in on his futile. It is well-established that the flight of an accused is competent
intended victim.[48] evidence to indicate his guilt, and flight, when unexplained, is a
circumstance from which an inference of guilt may be drawn.[53] It must
Be that as it may, the observation of the solicitor general on this point is
be stressed, nonetheless, that appellants were not convicted based on
well-taken. The case is better characterized as error in personae or
legal inference alone but on the overwhelming evidence presented of prision mayor (minimum), as minimum, to fourteen (14) years and
against them. eight (8) months of reclusion temporal (minimum) as maximum.
Third Issue: Under Article 50 of the Revised Penal Code, the penalty for a frustrated
felony is the next lower in degree than that prescribed by law for the
Crime and Punishment
consummated felony x x x. The imposable penalty for frustrated murder,
We agree with the appellate court that accused-appellants are guilty of therefore, is prision mayor in its maximum period to reclusion
murder for the deaths of Glenn Tiempo and Alfredo Nardo. The temporal in its medium period.[58] Because there are no aggravating or
allegation of treachery as charged in the Information was duly proven by mitigating circumstance as the Court of Appeals itself held,[59] the
the prosecution. Treachery is committed when two conditions concur, penalty prescribed by law should be imposed in its medium period. With
namely, that the means, methods, and forms of execution employed the application of the Indeterminate Sentence Law, the penalty for
gave the person attacked no opportunity to defend himself or to retaliate; frustrated murder should be 8 years of prision mayor (minimum), as
and that such means, methods and forms of execution were deliberately minimum, to 14 years and 8 months of reclusion temporal(minimum) as
and consciously adopted by the accused without danger to his maximum.
person.[54] These requisites were evidently present when the accused,
Although the Court of Appeals was silent on this point, the trial court
swiftly and unexpectedly, fired at the victims who were inside their
correctly ordered the payment of P50,000 as indemnity to the heirs of
vehicles and were in no position and without any means to defend
each of the two murdered victims. In light of current jurisprudence, this
themselves.
amount is awarded without need of proof other than the fact of the
The appellate court also correctly convicted them of frustrated murder victims death.[60] The trial court and the CA, however, erred in awarding
for the injuries sustained by Nelson Tiempo, Rey Bolo and Rogelio indemnity of P20,000 each to Nelson Tiempo, Rogelio Presores and
Presores. As evidenced by the medical certificates and the testimony of Rey Bolo. There is no basis, statutory or jurisprudential, for the award of
Dr. Miguel Mancao who attended to the victims, Nelson Tiempo a fixed amount to victims of frustrated murder. Hence, they are entitled
sustained a neck wound which completely shattered his trachea and only to the amounts of actual expenses duly proven during the trial.
rendered him voiceless, as well as a wound on the right chest which
Thus, Nelson Tiempo, who was treated for a gunshot wound on the neck
penetrated his axilla but not his chest cavity.[55] Rey Bolo sustained
which shattered his trachea, should be awarded indemnity of
three injuries which affected his clavicle, ribs and lungs.[56]Rogelio
P21,594.22 for his medical expenses. This is evidenced by a statement
Presores, on the other hand, sustained an injury to his lungs from a
of account from Cebu Doctors Hospital.[61]
bullet wound which entered his right chest and exited through his
back.[57] Rogelio Presores, who was likewise treated for gunshot wound in the
same hospital, presented a statement of account amounting
The wounds sustained by these survivors would have caused their death
to P5,412.69 for his hospitalization.[62] Hence, he is likewise entitled to
had it not been for the timely medical intervention. Hence, we sustain
indemnity in the said amount.
the ruling of the Court of Appeals that appellants are guilty of three
counts of frustrated murder. Rey Bolo, on the other hand, incurred an expense of P9,431.10 for the
treatment of his gunshot wounds, as evidenced by a statement of
We also uphold the Court of Appeals modification of the penalty for
account from the same hospital.[63] This amount should be awarded to
murder, but not its computation of the sentence for frustrated murder.
him as indemnity.
For each of the two counts of murder, the trial court imposed the penalty
WHEREFORE, the appeal is DENIED and the assailed Decision is
of fourteen (14) years, eight (8) months and one (1) day of reclusion
AFFIRMED. However, the penalties are hereby MODIFIED as follows:
temporal (medium), as minimum, to seventeen (17) years, four (4)
months and one (1) day of reclusion temporal (maximum), as 1) In Crim. Case No. CBU-9257, for MURDER, the accused-appellants
maximum. This is incorrect. Under Article 248 of the Revised Penal are each hereby sentenced to reclusion perpetua and to indemnify,
Code, the imposable penalty is reclusion temporal, in its maximum jointly and severally, the heirs of the deceased, Glenn Tiempo, in the
period, to death. There being no aggravating or mitigating circumstance, sum of P50,000;
aside from the qualifying circumstance of treachery, the appellate court
2) In Crim. Case No. CBU-9258, for MURDER, the accused-appellants
correctly imposed reclusion perpetua for murder.
are each hereby sentenced to reclusion perpetua and to indemnify,
The Court of Appeals, however, erred in computing the penalty for each jointly and severally, the heirs of the deceased, Alfredo Nardo, in the
of the three counts of frustrated murder. It sentenced appellants to sum of P50,000;
imprisonment of ten years of prision mayor (medium) as minimum to
3) In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, the
seventeen years and four months of reclusion temporal (medium) as
accused-appellants are each hereby sentenced to suffer the penalty of
maximum. It modified the trial courts computation of eight (8) years
8 years of prision mayor (minimum), as minimum, to 14 years and 8
months of reclusion temporal (minimum) as maximum; and to jointly and
severally pay the victim, Rey Bolo, in the sum of P9,431.10 as actual
damages;
SO ORDERED.
That same day, the charred bodies of the four deemed passengers
EN BANC
inside the bus were removed and duly identified that of Juan Bataclan.
G.R. No. L-10126 October 22, 1957 By reason of his death, his widow, Salud Villanueva, in her name and in
behalf of her five minor children, brought the present suit to recover from
SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, Mariano Medina compensatory, moral, and exemplary damages and
LUZVIMINDA, ELENITA, OSCAR and ALFREDO BATACLAN, attorney's fees in the total amount of P87,150. After trial, the Court of
represented by their Natural guardian, SALUD VILLANUEVA VDA. DE First Instance of Cavite awarded P1,000 to the plaintiffs plus P600 as
BATACLAN, plaintiffs-appellants, attorney's fee, plus P100, the value of the merchandise being carried by
vs. Bataclan to Pasay City for sale and which was lost in the fire. The
MARIANO MEDINA, defendant-appellant. plaintiffs and the defendants appealed the decision to the Court of
Appeals, but the latter endorsed the appeal to us because of the value
Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for
involved in the claim in the complaint.
plaintiffs-appellants.
Fortunato Jose for defendant and appellant. Our new Civil Code amply provides for the responsibility of common
carrier to its passengers and their goods. For purposes of reference, we
MONTEMAYOR, J.:
are reproducing the pertinent codal provisions:
Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina
ART. 1733. Common carriers, from the nature of their business and for
Transportation, operated by its owner defendant Mariano Medina under
reasons of public policy, are bound to observe extraordinary diligence in
a certificate of public convenience, left the town of Amadeo, Cavite, on
the vigilance over the goods and for the safety of the passengers
its way to Pasay City, driven by its regular chauffeur, Conrado Saylon.
transported by them, according to all the circumstances of each case.
There were about eighteen passengers, including the driver and
conductor. Among the passengers were Juan Bataclan, seated beside Such extraordinary diligence in the vigilance over the goods is further
and to the right of the driver, Felipe Lara, sated to the right of Bataclan, expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the
another passenger apparently from the Visayan Islands whom the extra ordinary diligence for the safety of the passengers is further set
witnesses just called Visaya, apparently not knowing his name, seated forth in articles 1755 and 1756.
in the left side of the driver, and a woman named Natalia Villanueva,
seated just behind the four last mentioned. At about 2:00 o'clock that ART. 1755. A common carrier is bound to carry the passengers safely
same morning, while the bus was running within the jurisdiction of Imus, as far as human care and foresight can provide, using the utmost
Cavite, one of the front tires burst and the vehicle began to zig-zag until diligence of very cautious persons, with a due regard for all the
it fell into a canal or ditch on the right side of the road and turned turtle. circumstances.
Some of the passengers managed to leave the bus the best way they
ART. 1756. In case of death of or injuries to passengers, common
could, others had to be helped or pulled out, while the three passengers
carriers are presumed to have been at fault or to have acted negligently,
seated beside the driver, named Bataclan, Lara and the Visayan and the
unless they prove that they observed extraordinary diligence as
woman behind them named Natalia Villanueva, could not get out of the
prescribed in articles 1733 and 1755
overturned bus. Some of the passengers, after they had clambered up
to the road, heard groans and moans from inside the bus, particularly, ART. 1759. Common carriers are liable for the death of or injuries to
shouts for help from Bataclan and Lara, who said they could not get out passengers through the negligence or willful acts of the former's
of the bus. There is nothing in the evidence to show whether or not the employees, although such employees may have acted beyond the
passengers already free from the wreck, including the driver and the scope of their authority or in violation of the order of the common
conductor, made any attempt to pull out or extricate and rescue the four carriers.
passengers trapped inside the vehicle, but calls or shouts for help were
This liability of the common carriers does not cease upon proof that they
made to the houses in the neighborhood. After half an hour, came about
exercised all the diligence of a good father of a family in the selection
ten men, one of them carrying a lighted torch made of bamboo with a
and supervision of their employees.
wick on one end, evidently fueled with petroleum. These men
presumably approach the overturned bus, and almost immediately, a ART. 1763. A common carrier responsible for injuries suffered by a
fierce fire started, burning and all but consuming the bus, including the passenger on account of the willful acts or negligence of other
four passengers trapped inside it. It would appear that as the bus passengers or of strangers, if the common carrier's employees through
overturned, gasoline began to leak and escape from the gasoline tank the exercise of the diligence of a good father of a family could have
on the side of the chassis, spreading over and permeating the body of prevented or stopped the act or omission.
We agree with the trial court that the case involves a breach of contract only by the passengers, but most probably, by the driver and the
of transportation for hire, the Medina Transportation having undertaken conductor themselves, and that because it was dark (about 2:30 in the
to carry Bataclan safely to his destination, Pasay City. We also agree morning), the rescuers had to carry a light with them, and coming as
with the trial court that there was negligence on the part of the defendant, they did from a rural area where lanterns and flashlights were not
through his agent, the driver Saylon. There is evidence to show that at available; and what was more natural than that said rescuers should
the time of the blow out, the bus was speeding, as testified to by one of innocently approach the vehicle to extend the aid and effect the rescue
the passengers, and as shown by the fact that according to the requested from them. In other words, the coming of the men with a torch
testimony of the witnesses, including that of the defense, from the point was to be expected and was a natural sequence of the overturning of
where one of the front tires burst up to the canal where the bus the bus, the trapping of some of its passengers and the call for outside
overturned after zig-zaging, there was a distance of about 150 meters. help. What is more, the burning of the bus can also in part be attributed
The chauffeur, after the blow-out, must have applied the brakes in order to the negligence of the carrier, through is driver and its conductor.
to stop the bus, but because of the velocity at which the bus must have According to the witness, the driver and the conductor were on the road
been running, its momentum carried it over a distance of 150 meters walking back and forth. They, or at least, the driver should and must
before it fell into the canal and turned turtle. have known that in the position in which the overturned bus was,
gasoline could and must have leaked from the gasoline tank and soaked
There is no question that under the circumstances, the defendant carrier
the area in and around the bus, this aside from the fact that gasoline
is liable. The only question is to what degree. The trial court was of the
when spilled, specially over a large area, can be smelt and directed even
opinion that the proximate cause of the death of Bataclan was not the
from a distance, and yet neither the driver nor the conductor would
overturning of the bus, but rather, the fire that burned the bus, including
appear to have cautioned or taken steps to warn the rescuers not to
himself and his co-passengers who were unable to leave it; that at the
bring the lighted torch too near the bus. Said negligence on the part of
time the fire started, Bataclan, though he must have suffered physical
the agents of the carrier come under the codal provisions above-
injuries, perhaps serious, was still alive, and so damages were awarded,
reproduced, particularly, Articles 1733, 1759 and 1763.
not for his death, but for the physical injuries suffered by him. We
disagree. A satisfactory definition of proximate cause is found in Volume As regard the damages to which plaintiffs are entitled, considering the
38, pages 695-696 of American jurisprudence, cited by plaintiffs- earning capacity of the deceased, as well as the other elements entering
appellants in their brief. It is as follows: into a damage award, we are satisfied that the amount of SIX
THOUSAND (P6,000) PESOS would constitute satisfactory
. . . 'that cause, which, in natural and continuous sequence, unbroken
compensation, this to include compensatory, moral, and other damages.
by any efficient intervening cause, produces the injury, and without
We also believe that plaintiffs are entitled to attorney's fees, and
which the result would not have occurred.' And more comprehensively,
assessing the legal services rendered by plaintiffs' attorneys not only in
'the proximate legal cause is that acting first and producing the injury,
the trial court, but also in the course of the appeal, and not losing sight
either immediately or by setting other events in motion, all constituting a
of the able briefs prepared by them, the attorney's fees may well be fixed
natural and continuous chain of events, each having a close causal
at EIGHT HUNDRED (P800) PESOS for the loss of merchandise carried
connection with its immediate predecessor, the final event in the chain
by the deceased in the bus, is adequate and will not be disturbed.
immediately effecting the injury as a natural and probable result of the
cause which first acted, under such circumstances that the person There is one phase of this case which disturbs if it does not shock us.
responsible for the first event should, as an ordinary prudent and According to the evidence, one of the passengers who, because of the
intelligent person, have reasonable ground to expect at the moment of injuries suffered by her, was hospitalized, and while in the hospital, she
his act or default that an injury to some person might probably result was visited by the defendant Mariano Medina, and in the course of his
therefrom. visit, she overheard him speaking to one of his bus inspectors, telling
said inspector to have the tires of the bus changed immediately because
It may be that ordinarily, when a passenger bus overturns, and pins
they were already old, and that as a matter of fact, he had been telling
down a passenger, merely causing him physical injuries, if through some
the driver to change the said tires, but that the driver did not follow his
event, unexpected and extraordinary, the overturned bus is set on fire,
instructions. If this be true, it goes to prove that the driver had not been
say, by lightning, or if some highwaymen after looting the vehicle sets it
diligent and had not taken the necessary precautions to insure the safety
on fire, and the passenger is burned to death, one might still contend
of his passengers. Had he changed the tires, specially those in front,
that the proximate cause of his death was the fire and not the overturning
with new ones, as he had been instructed to do, probably, despite his
of the vehicle. But in the present case under the circumstances obtaining
speeding, as we have already stated, the blow out would not have
in the same, we do not hesitate to hold that the proximate cause was the
occurred. All in all, there is reason to believe that the driver operated
overturning of the bus, this for the reason that when the vehicle turned
and drove his vehicle negligently, resulting in the death of four of his
not only on its side but completely on its back, the leaking of the gasoline
passengers, physical injuries to others, and the complete loss and
from the tank was not unnatural or unexpected; that the coming of the
destruction of their goods, and yet the criminal case against him, on
men with a lighted torch was in response to the call for help, made not
motion of the fiscal and with his consent, was provisionally dismissed,
because according to the fiscal, the witnesses on whose testimony he
was banking to support the complaint, either failed or appear or were
reluctant to testify. But the record of the case before us shows the
several witnesses, passengers, in that bus, willingly and unhesitatingly
testified in court to the effect of the said driver was negligent. In the
public interest the prosecution of said erring driver should be pursued,
this, not only as a matter of justice, but for the promotion of the safety of
passengers on public utility buses. Let a copy of this decision be
furnished the Department of Justice and the Provincial Fiscal of Cavite.
In view of the foregoing, with the modification that the damages awarded
by the trial court are increased from ONE THOUSAND (P1,000) PESOS
TO SIX THOUSAND (P6,000) PESOS, and from SIX HUNDRED
PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan
and for the attorney's fees, respectively, the decision appealed is from
hereby affirmed, with costs.
that the accused had clung to their determination to commit the crime; seek a reversal of the decision of the then Court of First Instance of
and (c) the lapse of sufficient length of time between the determination Camarines Norte, Branch II 1 convicting them of the crime of murder and
and execution to allow him to reflect upon the consequences of his act. sentencing them to suffer the penalty of reclusion perpetua and to
(People v. Batas, G.R. Nos. 84277-78, August 2, 1989, 176 SCRA 46). indemnify the heirs of Esmeraldo Quiones, Jr. in the amounts of
P30,000 for the latters death and P256,960 representing the victims
BY MERE PRESENCE AT THE SCENE OF THE CRIME. Absent any against Fernando Iligan, Edmundo Asis and Juan
qualifying circumstances, Iligan must be held liable only for homicide. Macandog:chanrobles.com.ph : virtual law library
co-conspirator. Edmundo Asis did not take any active part in the infliction Sto. Domingo, municipality of Vinzons, province of Camarines Norte,
of the wound on the head of Quiones, Jr., which led to his running over Philippines, and within the jurisdiction of the Honorable Court, the above
by a vehicle and consequent death. As earlier pointed out, the testimony named accused, conspiring and mutually helping one another, with
that he was carrying a stone at the scene of the crime hardly merits treachery and evident premeditation, one of the accused Fernando
credibility being uncorroborated and coming from an undeniably biased Iligan armed with a bolo (sinampalok) and with deliberate intent to kill,
witness. Having been the companion of Iligan, Edmundo Asis must have did then and there wilfully, unlawfully and feloniously, gang up and in a
known of the formers criminal intent but mere knowledge, acquiescense sudden unexpected manner, hacked Esmeraldo Quiones, Jr., on his
or approval of the act without cooperation or agreement to cooperate, is face, thus causing fatal injuries on the latters face which resulted to (sic)
not enough to constitute one a party to a conspiracy. There must be the death of said Esmeraldo Quiones.
Such being the case, his mere presence at the scene of the crime did
not make him a co-conspirator, a co-principal or an accomplice to the Juan Macandog was never apprehended and he remains at large. At
assault perpetrated by Iligan. (Orobio v. Court of Appeals, G.R. No. their arraignment on January 12, 1981 Fernando Iligan and Edmundo
57519, September 13, 1988, 165 SCRA 316) Edmundo Asis therefore Asis pleaded not guilty to the crime charged. Thereafter, the prosecution
SENTENCE LAW. There being no mitigating circumstance, the Quiones, Jr. and his companions, Zaldy Asis and Felix Lukban, were
penalty imposable on Iligan is reclusion temporal medium (Arts. 249 and walking home from barangay Sto. Domingo, Vinzons, Camarines Norte
64, Revised Penal Code). Applying the Indeterminate Sentence Law, after attending a barrio fiesta dance. In front of the ricemill of a certain
the proper penalty is that within the range of prision mayor as minimum Almadrones, they met the accused Fernando Iligan, his nephew,
and reclusion temporal medium as maximum. We find insufficient proof Edmundo Asis, and Juan Macandog. Edmundo Asis pushed ("winahi")
to warrant the award of P256,960 for the victims unrealized income and them aside thereby prompting Zaldy Asis to box him. 2 Felix Lukban
therefore, the same is disallowed. quickly told the group of the accused that they had no desire to fight. 3
Fernando Iligan, upon seeing his nephew fall, drew from his back a bolo
and hacked Zaldy Asis but missed. Terrified, the trio ran pursued by the
three accused. They ran for about half an hour, passing by the house of
Quiones, Jr. They stopped running only upon seeing that they were no
DECISION
longer being chased. After resting for a short while, Quiones, Jr. invited
the two to accompany him to his house so that he could change to his
working clothes and report for work as a bus conductor. 4 someone whom he did not recognize because there were several
persons around. He said, "Sorry, pare" but the person to whom he
While the trio were walking towards the house of Quiones, Jr., the three addressed his apology boxed him on his left face. He fell down and Iligan
accused suddenly emerged on the roadside and without a word, helped him. Later, Iligan accompanied him to his home in Lico II. 15 After
Fernando Iligan hacked Quiones, Jr. with his bolo hitting him on the Iligan and Juliano Mendoza had left his house, he slept and woke up at
forehead and causing him to fall down. 5 Horrified, Felix Lukban and 7:00 oclock the following morning. 16
Zaldy Asis fled to a distance of 200 meters, but returned walking after
they heard shouts of people. Zaldy Asis specifically heard someone The defense made capital of the testimony of prosecution witness Dr.
shout "May nadale na." 6 Abas to the effect that Quiones, Jr. died because of a vehicular
accident. In ruling out said theory, however, the lower court, in its
On the spot where Quiones, Jr. was hacked, Zaldy Asis and Felix decision of May 7, 1986, said:jgc:chanrobles.com.ph
Lukban saw him already dead with his head busted. 7 They helped the
brother of Quiones, Jr. in carrying him to their house. 8 "The accused, to augment their alibi, have pointed to this Court that the
Certificate of Death have shown that the victims death was caused by
That same day, August 4, 1980, the body of Quiones, Jr. was autopsied a vehicular accident. To this, notwithstanding, the Court cannot give
at the Funeraria Belmonte in Labo, Camarines Norte by the municipal credit for some reasons. First, the fact of the alleged vehicular accident
health officer, Dr. Marcelito E. Abas. The postmortem examination report has not been fully established. Second, Esmeraldo Quiones, Sr., (the)
which is found at the back of the death certificate reveals that Esmeraldo father of the victim, testified that Dr. Abas told him that if his son was
Quiones, Jr., who was 21 years old when he died, sustained the hacked by a bolo on the face and then run over the entire head by a
following injuries:jgc:chanrobles.com.ph vehicles tire, then that hacking on the face could not be visibly seen on
the head (t.s.n., pp. 16-17, October 13, 1981) Third, Exhibit 2 (the
"1. Shock and massive cerebral hemorrhages due to multiple fracture of photograph of the victim taken immediately after his body had been
the entire half of the frontal left, temporal, parietal and occipital bone of brought home) is a hard evidence. It will attestly (sic) show that the entire
the head, with massive maceration of the brain tissue. head was not crushed by any vehicle. On the contrary, it shows that only
half of the face and head, was damaged with the wound starting on a
"2. Other findings Incised wound at the right eyebrow, medial aspect sharp edge horizontally. There are contusions and abrasions on the
measuring about 4 cms. in length, 0.5 cm. in width and 0.5 cm. in depth, upper left shoulder and on the neck while the body downwards has none
abrasion on the left shoulder and right side of the neck." 9 of it, while on the right forehead there is another wound caused by a
sharp instrument. Therefore, it is simple, that if the victim was run over
The death certificate also indicates that Quiones, Jr. died of "shock and by a vehicle, the other half portion of his head and downward part of his
massive cerebral hemorrhages due to a vehicular accident."cralaw body must have been likewise seriously damaged, which there are
virtua1aw library none." 17
The defendants denied having perpetrated the crime. They alleged that The lower court also found that Iligans group conspired to kill anyone or
they were in their respective houses at the time the crime was all members of the group of the victim to vindicate the boxing on the face
committed.chanrobles law library of Edmundo Asis. It appreciated the aggravating circumstances of
evident premeditation and treachery and accordingly convicted Iligan
Accused Fernando Iligan testified that at around midnight of August 4, and Edmundo Asis of the crime of murder and imposed on them the
1980, he left his house to fetch his visitors at the dance hall. 10 Along aforementioned penalty.
the way, he met his nephew, Edmundo Asis, whom he presumed was
drunk. He invited his nephew to accompany him to the dance hall. Iligan and Edmundo Asis interposed this appeal professing innocence
However, they were not able to reach their destination because of the crime for which they were convicted. For the second time, they
Edmundo was boxed by somebody whom he (Edmundo) sideswiped. attributed Quiones, Jr.s death to a vehicular accident.
11 Instead, Fernando Iligan brought his nephew home. 12 On their way,
they were overtaken by Juliano Mendoza whom Fernando Iligan invited No eyewitnesses were presented to prove that Quiones, Jr. was run
to his house to help him cook. 13 After bringing his nephew home, over by a vehicle. The defense relies on the testimony of Dr. Abas, a
Fernando Iligan and Juliano Mendoza proceeded to Iligans house and prosecution witness, who swore that the multiple fracture on the head of
arrived there between 1:30 and 2:00 oclock in the morning of the same Quiones, Jr. was caused by a vehicular accident 18 which opinion was
day. 14 earlier put in writing by the same witness in the postmortem examination.
Dr. Abas justified his conclusion by what he considered as tire marks on
Edmundo Asis corroborated Iligans testimony. He testified that while the victims left shoulder and the right side of his neck. 19 He also
they were walking in front of the Almadrones ricemill, he sideswiped testified that the incised wound located at the victims right eyebrow
could have been caused by a sharp bolo but it was so superficial that it The intentional felony committed was the hacking of the head of
could not have caused the victims death. 20 Quiones, Jr. by Iligan. That it was considered as superficial by the
physician who autopsied Quiones is beside the point. What is material
Circumstantial evidence on record indeed point to the veracity of the is that by the instrument used in hacking Quiones, Jr. and the location
actual occurrence of the vehicular mishap. One such evidence is the of the wound, the assault was meant not only to immobilize the victim
testimony of prosecution witness Zaldy Asis that when he helped bring but to do away with him as it was directed at a vital and delicate part of
home the body of Quiones, Jr., he told the victims father, Esmeraldo the body: the head. 29
Quiones, Sr. that "before Esmeraldo Quiones (Jr.) was run over by a
vehicle, he was hacked by Fernando Iligan." 21 When asked why he The hacking incident happened on the national highway 30 where
mentioned an automobile, Zaldy Asis said that he did not notice any vehicles are expected to pass any moment. One such vehicle passed
vehicle around but he mentioned it "because his (Quiones, Jr.) head seconds later when Lukban and Zaldy Asis, running scared and having
was busted." 22 It is therefore not farfetched to conclude that Zaldy Asis barely negotiated the distance of around 200 meters, heard shouts of
had actual knowledge of said accident but for understandable reasons people. Quiones, Jr., weakened by the hacking blow which sent him to
he declined to declare it in court. Defense witness Marciano Mago, the the cemented highway, was run over by a vehicle.
barangay captain of Sto. Domingo, also testified that when he went to
the scene of the crime, he saw bits of the brain of the victim scattered Under these circumstances, we hold that while Iligans hacking of
across the road where he also saw tire marks. 23 Quiones, Jr.s head might not have been the direct cause, it was the
proximate cause of the latters death. Proximate legal cause is defined
For its part, the prosecution, through the victims father, presented as "that acting first and producing the injury, either immediately or by
evidence to the effect that Iligan authored the maceration of half of the setting other events in motion, all constituting a natural and continuous
victims head. Quiones, Sr. testified that from their house, which was chain of events, each having a close causal connection with its
about five meters away from the road, he saw Fernando Iligan holding immediate predecessor, the final event in the chain immediately
a "sinampalok" as he, together with Edmundo Asis and Juan Macandog, effecting the injury as a natural and probable result of the cause which
chased someone. During the second time that he saw the three first acted, under such circumstances that the person responsible for the
accused, he heard Iligan say, "Dali, ayos na yan." 24 Hence, the lower first event should, as an ordinarily prudent and intelligent person, have
court concluded that the victims head was "chopped" resulting in the reasonable ground to expect at the moment of his act or default that an
splattering of his brain all over the place. 25 It should be emphasized, injury to some person might probably result therefrom." 31 In other
however, that the testimony came from a biased witness and it was words, the sequence of events from Iligans assault on him to the time
uncorroborated. Quiones, Jr. was run over by a vehicle is, considering the very short
span of time between them, one unbroken chain of events. Having
While the factual findings of the trial court are generally given due triggered such events, Iligan cannot escape liability.chanrobles law
respect by the appellate court, an appeal of a criminal case throws it library
open for a complete review of all errors, by commission or omission, as
may be imputable to the trial court. 26 In this instance, the lower court We agree with the lower court that the defense of alibi cannot turn the
erred in finding that the maceration of one half of the head of the victim tide in favor of Iligan because he was positively seen at the scene of the
was also caused by Iligan for the evidence on record point to a different crime and identified by the prosecution witnesses. 32
conclusion. We are convinced beyond peradventure that indeed, after
Quiones, Jr. had fallen from the bolo-hacking perpetrated by Iligan, he But we disagree with the lower court with regards to its findings on the
was run over by a vehicle. This finding, however, does not in any way aggravating circumstances of treachery and evident premeditation.
exonerate Iligan from liability for the death of Quiones, Treachery has been appreciated by the lower court in view of the
Jr.chanrobles.com : virtual law library suddenness of the attack on the group of Quiones, Jr. Suddenness of
such attack, however, does not by itself show treachery. 33 There must
Under Article 4 of the Revised Penal Code, criminal liability shall be be evidence that the mode of attack was consciously adopted by the
incurred "by any person committing a felony (delito) although the appellant to make it impossible or hard for the person attacked to defend
wrongful act done be different from that which he intended." Based on himself. 34 In this case, the hacking of Edmundo Asis by Iligan followed
the doctrine that "el que es causa de la causa es causa del mal causado" by the chasing of the trio by the group of Iligan was a warning to the
(he who is the cause of the cause is the cause of the evil caused), 27 deceased and his companions of the hostile attitude of the appellants.
the essential requisites of Article 4 are: (a) that an intentional felony has The group of Quiones, Jr. was therefore placed on guard for any
been committed, and (b) that the wrong done to the aggrieved party be subsequent attacks against them. 35
the direct, natural and logical consequence of the felony committed by
the offender. 28 We hold that these requisites are present in this case. The requisites necessary to appreciate evident premeditation have
likewise not been met in this case. Thus, the prosecution failed to prove
all of the following: (a) the time when the accused determined to commit
the crime; (b) an act manifestly indicating that the accused had clung to
their determination to commit the crime; and (c) the lapse of sufficient
length of time between the determination and execution to allow him to
reflect upon the consequences of his act. 36
Absent any qualifying circumstances, Iligan must be held liable only for
homicide. Again, contrary to the lower courts finding, proof beyond
reasonable doubt has not been established to hold Edmundo Asis liable
as Iligans co-conspirator. Edmundo Asis did not take any active part in
the infliction of the wound on the head of Quiones, Jr., which led to his
running over by a vehicle and consequent death. As earlier pointed out,
the testimony that he was carrying a stone at the scene of the crime
hardly merits credibility being uncorroborated and coming from an
undeniably biased witness. Having been the companion of Iligan,
Edmundo Asis must have known of the formers criminal intent but mere
knowledge, acquiescense or approval of the act without cooperation or
agreement to cooperate, is not enough to constitute one a party to a
conspiracy. There must be intentional participation in the act with a view
to the furtherance of the common design and purpose. 37 Such being
the case, his mere presence at the scene of the crime did not make him
a co-conspirator, a co-principal or an accomplice to the assault
perpetrated by Iligan. 38 Edmundo Asis therefore deserves exoneration.
SO ORDERED.
G.R. No. 72964 January 7, 1988 This is to certify that I have examined the wound of Marcelo Javier, 20
years of age, married, residing at Barangay Anonang, San Fabian,
FILOMENO URBANO, petitioner, Pangasinan on October 23, 1980 and found the following:
vs.
HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE 1 -Incised wound 2 inches in length at the upper portion of the lesser
PHILIPPINES, respondents. palmar prominence, right.
This is a petition to review the decision of the then Intermediate Upon the intercession of Councilman Solis, Urbano and Javier agreed
Appellate Court which affirmed the decision of the then Circuit Criminal to settle their differences. Urbano promised to pay P700.00 for the
Court of Dagupan City finding petitioner Filomeno Urban guilty beyond medical expenses of Javier. Hence, on October 27, 1980, the two
reasonable doubt of the crime of homicide. accompanied by Solis appeared before the San Fabian Police to
formalize their amicable settlement. Patrolman Torio recorded the event
The records disclose the following facts of the case.
in the police blotter (Exhibit A), to wit:
At about 8:00 o'clock in the morning of October 23, 1980, petitioner
xxx xxx xxx
Filomeno Urbano went to his ricefield at Barangay Anonang, San
Fabian, Pangasinan located at about 100 meters from the tobacco Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both
seedbed of Marcelo Javier. He found the place where he stored his parties appeared before this Station accompanied by brgy. councilman
palay flooded with water coming from the irrigation canal nearby which Felipe Solis and settled their case amicably, for they are neighbors and
had overflowed. Urbano went to the elevated portion of the canal to see close relatives to each other. Marcelo Javier accepted and granted
what happened and there he saw Marcelo Javier and Emilio Erfe cutting forgiveness to Filomeno Urbano who shoulder (sic) all the expenses in
grass. He asked them who was responsible for the opening of the his medical treatment, and promising to him and to this Office that this
irrigation canal and Javier admitted that he was the one. Urbano then will never be repeated anymore and not to harbour any grudge against
got angry and demanded that Javier pay for his soaked palay. A quarrel each other. (p. 87, Original Records.)
between them ensued. Urbano unsheathed his bolo (about 2 feet long,
including the handle, by 2 inches wide) and hacked Javier hitting him on Urbano advanced P400.00 to Javier at the police station. On November
the right palm of his hand, which was used in parrying the bolo hack. 3, 1980, the additional P300.00 was given to Javier at Urbano's house
Javier who was then unarmed ran away from Urbano but was overtaken in the presence of barangay captain Soliven.
by Urbano who hacked him again hitting Javier on the left leg with the
At about 1:30 a.m. on November 14, 1980, Javier was rushed to the
back portion of said bolo, causing a swelling on said leg. When Urbano
Nazareth General Hospital in a very serious condition. When admitted
tried to hack and inflict further injury, his daughter embraced and
to the hospital, Javier had lockjaw and was having convulsions. Dr.
prevented him from hacking Javier.
Edmundo Exconde who personally attended to Javier found that the
Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe latter's serious condition was caused by tetanus toxin. He noticed the
brought Javier to his house about 50 meters away from where the presence of a healing wound in Javier's palm which could have been
incident happened. Emilio then went to the house of Barangay Captain infected by tetanus.
Menardo Soliven but not finding him there, Emilio looked for barrio
On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital.
councilman Felipe Solis instead. Upon the advice of Solis, the Erfes
The medical findings of Dr. Exconde are as follows:
together with Javier went to the police station of San Fabian to report
the incident. As suggested by Corporal Torio, Javier was brought to a Date Diagnosis
physician. The group went to Dr. Guillermo Padilla, rural health
11-14-80 ADMITTED due to trismus
physician of San Fabian, who did not attend to Javier but instead
suggested that they go to Dr. Mario Meneses because Padilla had no adm. at DX TETANUS
available medicine.
1:30 AM Still having frequent muscle spasm. With diffi-
#35, 421 culty opening his mouth. Restless at times. Febrile That on November 5, 1980, while I was conducting survey, I saw the late
Marcelo Javier catching fish in the shallow irrigation canals with some
11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessa-
companions;
tion of respiration and HR after muscular spasm.
That few days there after,or on November l5, l980, I came to know that
02 inhalation administered. Ambo bag resuscita- said Marcelo Javier died of tetanus. (p. 33, Rollo)
tion and cardiac massage done but to no avail. The motion was denied. Hence, this petition.
Pronounced dead by Dra. Cabugao at 4:18 P.M. In a resolution dated July 16, 1986, we gave due course to the petition.
PMC done and cadaver brought home by rela- The case involves the application of Article 4 of the Revised Penal Code
which provides that "Criminal liability shall be incurred: (1) By any person
tives. (p. 100, Original Records) committing a felony (delito) although the wrongful act done be different
from that which he intended ..." Pursuant to this provision "an accused
In an information dated April 10, 1981, Filomeno Urbano was charged
is criminally responsible for acts committed by him in violation of law and
with the crime of homicide before the then Circuit Criminal Court of
for all the natural and logical consequences resulting therefrom."
Dagupan City, Third Judicial District.
(People v. Cardenas, 56 SCRA 631).
Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court
The record is clear that Marcelo Javier was hacked by the petitioner who
found Urbano guilty as charged. He was sentenced to suffer an
used a bolo as a result of which Javier suffered a 2-inch incised wound
indeterminate prison term of from TWELVE (12) YEARS of prision
on his right palm; that on November 14, 1981 which was the 22nd day
mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS
after the incident, Javier was rushed to the hospital in a very serious
and ONE (1) DAY of reclusion temporal, as maximum, together with the
condition and that on the following day, November 15, 1981, he died
accessories of the law, to indemnify the heirs of the victim, Marcelo
from tetanus.
Javier, in the amount of P12,000.00 without subsidiary imprisonment in
case of insolvency, and to pay the costs. He was ordered confined at Under these circumstances, the lower courts ruled that Javier's death
the New Bilibid Prison, in Muntinlupa, Rizal upon finality of the decision, was the natural and logical consequence of Urbano's unlawful act.
in view of the nature of his penalty. Hence, he was declared responsible for Javier's death. Thus, the
appellate court said:
The then Intermediate Appellate Court affirmed the conviction of Urbano
on appeal but raised the award of indemnity to the heirs of the deceased The claim of appellant that there was an efficient cause which
to P30,000.00 with costs against the appellant. supervened from the time the deceased was wounded to the time of his
death, which covers a period of 23 days does not deserve serious
The appellant filed a motion for reconsideration and/or new trial. The
consideration. True, that the deceased did not die right away from his
motion for new trial was based on an affidavit of Barangay Captain
wound, but the cause of his death was due to said wound which was
Menardo Soliven (Annex "A") which states:
inflicted by the appellant. Said wound which was in the process of
That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, healing got infected with tetanus which ultimately caused his death.
Pangasinan, and up to the present having been re-elected to such
Dr. Edmundo Exconde of the Nazareth General Hospital testified that
position in the last barangay elections on May 17, 1982;
the victim suffered lockjaw because of the infection of the wound with
That sometime in the first week of November, 1980, there was a typhoon tetanus. And there is no other way by which he could be infected with
that swept Pangasinan and other places of Central Luzon including San tetanus except through the wound in his palm (tsn., p. 78, Oct. 5, 1981).
Fabian, a town of said province; Consequently, the proximate cause of the victim's death was the wound
which got infected with tetanus. And the settled rule in this jurisdiction is
That during the typhoon, the sluice or control gates of the Bued irrigation
that an accused is liable for all the consequences of his unlawful act.
dam which irrigates the ricefields of San Fabian were closed and/or
(Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; People v.
controlled so much so that water and its flow to the canals and ditches
Cornel 78 Phil. 418).
were regulated and reduced;
Appellant's allegation that the proximate cause of the victim's death was
That due to the locking of the sluice or control gates of the dam leading
due to his own negligence in going back to work without his wound being
to the canals and ditches which will bring water to the ricefields, the
properly healed, and lately, that he went to catch fish in dirty irrigation
water in said canals and ditches became shallow which was suitable for
canals in the first week of November, 1980, is an afterthought, and a
catching mudfishes;
desperate attempt by appellant to wiggle out of the predicament he
That after the storm, I conducted a personal survey in the area affected, found himself in. If the wound had not yet healed, it is impossible to
with my secretary Perfecto Jaravata;
conceive that the deceased would be reckless enough to work with a rigidity, and patients often complain of difficulty opening their mouths. In
disabled hand. (pp. 20-21, Rollo) fact, trismus in the commonest manifestation of tetanus and is
responsible for the familiar descriptive name of lockjaw. As more
The petitioner reiterates his position that the proximate cause of the
muscles are involved, rigidity becomes generalized, and sustained
death of Marcelo Javier was due to his own negligence, that Dr. Mario
contractions called risus sardonicus. The intensity and sequence of
Meneses found no tetanus in the injury, and that Javier got infected with
muscle involvement is quite variable. In a small proportion of patients,
tetanus when after two weeks he returned to his farm and tended his
only local signs and symptoms develop in the region of the injury. In the
tobacco plants with his bare hands exposing the wound to harmful
vast majority, however, most muscles are involved to some degree, and
elements like tetanus germs.
the signs and symptoms encountered depend upon the major muscle
The evidence on record does not clearly show that the wound inflicted groups affected.
by Urbano was infected with tetanus at the time of the infliction of the
Reflex spasm usually occur within 24 to 72 hours of the first symptom,
wound. The evidence merely confirms that the wound, which was
an interval referred to as the onset time. As in the case of the incubation
already healing at the time Javier suffered the symptoms of the fatal
period, a short onset time is associated with a poor prognosis. Spasms
ailment, somehow got infected with tetanus However, as to when the
are caused by sudden intensification of afferent stimuli arising in the
wound was infected is not clear from the record.
periphery, which increases rigidity and causes simultaneous and
In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the excessive contraction of muscles and their antagonists. Spasms may be
following definition of proximate cause: both painful and dangerous. As the disease progresses, minimal or
inapparent stimuli produce more intense and longer lasting spasms with
xxx xxx xxx increasing frequency. Respiration may be impaired by laryngospasm or
tonic contraction of respiratory muscles which prevent adequate
... A satisfactory definition of proximate cause is found in Volume 38,
ventilation. Hypoxia may then lead to irreversible central nervous system
pages 695-696 of American Jurisprudence, cited by plaintiffs-appellants
damage and death.
in their brief. It is as follows:
"A prior and remote cause cannot be made the be of an action if such This is one of those causes where confused thinking leads to
remote cause did nothing more than furnish the condition or give rise to unfortunate and deplorable consequences. Such reasoning fails to draw
the occasion by which the injury was made possible, if there intervened a clear line of demarcation between criminal liability and civil
between such prior or remote cause and the injury a distinct, successive, responsibility, and to determine the logical result of the distinction. The
unrelated, and efficient cause of the injury, even though such injury two liabilities are separate and distinct from each other. One affects the
would not have happened but for such condition or occasion. If no social order and the other, private rights. One is for the punishment or
danger existed in the condition except because of the independent correction of the offender while the other is for reparation of damages
cause, such condition was not the proximate cause. And if an suffered by the aggrieved party. The two responsibilities are so different
independent negligent act or defective condition sets into operation the from each other that article 1813 of the present (Spanish) Civil Code
instances which result in injury because of the prior defective condition, reads thus: "There may be a compromise upon the civil action arising
such subsequent act or condition is the proximate cause." (45 C.J. pp. from a crime; but the public action for the imposition of the legal penalty
931-932). (at p. 125) shall not thereby be extinguished." It is just and proper that, for the
purposes of the imprisonment of or fine upon the accused, the offense
It strains the judicial mind to allow a clear aggressor to go scot free of
should be proved beyond reasonable doubt. But for the purpose of
criminal liability. At the very least, the records show he is guilty of
indemnity the complaining party, why should the offense also be proved
inflicting slight physical injuries. However, the petitioner's criminal
beyond reasonable doubt? Is not the invasion or violation of every
liability in this respect was wiped out by the victim's own act. After the
private right to be proved only by a preponderance of evidence? Is the
hacking incident, Urbano and Javier used the facilities of barangay
right of the aggrieved person any less private because the wrongful act
mediators to effect a compromise agreement where Javier forgave
is also punishable by the criminal law?
Urbano while Urbano defrayed the medical expenses of Javier. This
settlement of minor offenses is allowed under the express provisions of "For these reasons, the Commission recommends the adoption of the
Presidential Decree G.R. No. 1508, Section 2(3). (See also People v. reform under discussion. It will correct a serious defect in our law. It will
Caruncho, 127 SCRA 16). close up an inexhaustible source of injustice-a cause for disillusionment
on the part of the innumerable persons injured or wronged."
We must stress, however, that our discussion of proximate cause and
remote cause is limited to the criminal aspects of this rather unusual The respondent court increased the P12,000.00 indemnification
case. It does not necessarily follow that the petitioner is also free of civil imposed by the trial court to P30,000.00. However, since the
liability. The well-settled doctrine is that a person, while not criminally indemnification was based solely on the finding of guilt beyond
liable, may still be civilly liable. Thus, in the recent case of People v. reasonable doubt in the homicide case, the civil liability of the petitioner
Rogelio Ligon y Tria, et al. (G.R. No. 74041, July 29, 1987), we said: was not thoroughly examined. This aspect of the case calls for fuller
development if the heirs of the victim are so minded.
xxx xxx xxx
WHEREFORE, the instant petition is hereby GRANTED. The impossible crime, citing Article 4(2) of the Revised Penal Code which
questioned decision of the then Intermediate Appellate Court, now Court provides:
of Appeals, is REVERSED and SET ASIDE. The petitioner is
Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal Responsibility shall
ACQUITTED of the crime of homicide. Costs de oficio.
be incurred:
SO ORDERED.
xxx xxx xxx
Fernan, (Chairman), Feliciano, Bidin and,Cortes, JJ., concur.
2. By any person performing an act which would be an offense against
persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or
G.R. No. 103119 October 21, 1992
ineffectual means.
SULPICIO INTOD, petitioner,
Petitioner contends that, Palangpangan's absence from her room on the
vs.
night he and his companions riddled it with bullets made the crime
HONORABLE COURT OF APPEALS and PEOPLE OF THE
inherently impossible.
PHILIPPINES, respondents.
On the other hand, Respondent People of the Philippines argues that
the crime was not impossible. Instead, the facts were sufficient to
CAMPOS, JR., J.: constitute an attempt and to convict Intod for attempted murder.
Respondent alleged that there was intent. Further, in its Comment to the
Petitioner, Sulpicio Intod, filed this petition for review of the decision of Petition, respondent pointed out that:
the Court of Appeals 1 affirming in toto the judgment of the Regional
Trial Court, Branch XIV, Oroquieta City, finding him guilty of the crime of . . . The crime of murder was not consummated, not because of the
attempted murder. inherent impossibility of its accomplishment (Art. 4(2), Revised Penal
Code), but due to a cause or accident other than petitioner's and his
From the records, we gathered the following facts. accused's own spontaneous desistance (Art. 3., Ibid.) Palangpangan
did not sleep at her house at that time. Had it not been for this fact, the
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian,
crime is possible, not impossible. 3
Santos Tubio and Avelino Daligdig went to Salvador Mandaya's house
in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This
with them to the house of Bernardina Palangpangan. Thereafter, seeks to remedy the void in the Old Penal Code where:
Mandaya and Intod, Pangasian, Tubio and Daligdig had a meeting with
Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to . . . it was necessary that the execution of the act has been commenced,
be killed because of a land dispute between them and that Mandaya that the person conceiving the idea should have set about doing the
should accompany the four (4) men, otherwise, he would also be killed. deed, employing appropriate means in order that his intent might
become a reality, and finally, that the result or end contemplated shall
At about 10:00 o'clock in the evening of the same day, Petitioner, have been physically possible. So long as these conditions were not
Mandaya, Pangasian, Tubio and Daligdig, all armed with firearms, present, the law and the courts did not hold him criminally liable. 5
arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis
Occidental. At the instance of his companions, Mandaya pointed the This legal doctrine left social interests entirely unprotected. 6 The
location of Palangpangan's bedroom. Thereafter, Petitioner, Pangasian, Revised Penal Code, inspired by the Positivist School, recognizes in the
Tubio and Daligdig fired at said room. It turned out, however, that offender his formidability, 7 and now penalizes an act which were it not
Palangpangan was in another City and her home was then occupied by aimed at something quite impossible or carried out with means which
her son-in-law and his family. No one was in the room when the accused prove inadequate, would constitute a felony against person or against
fired the shots. No one was hit by the gun fire. property. 8 The rationale of Article 4(2) is to punish such criminal
tendencies. 9
Petitioner and his companions were positively identified by witnesses.
One witness testified that before the five men left the premises, they Under this article, the act performed by the offender cannot produce an
shouted: "We will kill you (the witness) and especially Bernardina offense against person or property because: (1) the commission of the
Palangpangan and we will come back if (sic) you were not injured". 2 offense is inherently impossible of accomplishment: or (2) the means
employed is either (a) inadequate or (b) ineffectual. 10
After trial, the Regional Trial Court convicted Intod of attempted murder.
The court (RTC), as affirmed by the Court of Appeals, holding that That the offense cannot be produced because the commission of the
Petitioner was guilty of attempted murder. Petitioner seeks from this offense is inherently impossible of accomplishment is the focus of this
Court a modification of the judgment by holding him liable only for an petition. To be impossible under this clause, the act intended by the
offender must be by its nature one impossible of
accomplishment. 11 There must be either impossibility of accomplishing impossibility grows out of extraneous acts not within the control of the
the intended act 12 in order to qualify the act an impossible crime. party.
Legal impossibility occurs where the intended acts, even if completed, In the case of Clark vs. State, 20 the court held defendant liable for
would not amount to a crime. 13 Thus: attempted robbery even if there was nothing to rob. In disposing of the
case, the court quoted Mr. Justice Bishop, to wit:
Legal impossibility would apply to those circumstances where (1) the
motive, desire and expectation is to perform an act in violation of the It being an accepted truth that defendant deserves punishment by
law; (2) there is intention to perform the physical act; (3) there is a reason of his criminal intent, no one can seriously doubt that the
performance of the intended physical act; and (4) the consequence protection of the public requires the punishment to be administered,
resulting from the intended act does not amount to a crime. 14 equally whether in the unseen depths of the pocket, etc., what was
supposed to exist was really present or not. The community suffers from
The impossibility of killing a person already dead 15 falls in this
the mere alarm of crime. Again: Where the thing intended (attempted)
category.
as a crime and what is done is a sort to create alarm, in other words,
On the other hand, factual impossibility occurs when extraneous excite apprehension that the evil; intention will be carried out, the
circumstances unknown to the actor or beyond his control prevent the incipient act which the law of attempt takes cognizance of is in reason
consummation of the intended crime. 16 One example is the man who committed.
puts his hand in the coat pocket of another with the intention to steal the
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window
latter's wallet and finds the pocket empty. 17
of victim's room thinking that the latter was inside. However, at that
The case at bar belongs to this category. Petitioner shoots the place moment, the victim was in another part of the house. The court convicted
where he thought his victim would be, although in reality, the victim was the accused of attempted murder.
not present in said place and thus, the petitioner failed to accomplish his
The aforecited cases are the same cases which have been relied upon
end.
by Respondent to make this Court sustain the judgment of attempted
One American case had facts almost exactly the same as this one. murder against Petitioner. However, we cannot rely upon these
In People vs. Lee Kong, 18 the accused, with intent to kill, aimed and decisions to resolve the issue at hand. There is a difference between the
fired at the spot where he thought the police officer would be. It turned Philippine and the American laws regarding the concept and
out, however, that the latter was in a different place. The accused failed appreciation of impossible crimes.
to hit him and to achieve his intent. The Court convicted the accused of
In the Philippines, the Revised Penal Code, in Article 4(2), expressly
an attempt to kill. It held that:
provided for impossible crimes and made the punishable. Whereas, in
The fact that the officer was not at the spot where the attacking party the United States, the Code of Crimes and Criminal Procedure is silent
imagined where he was, and where the bullet pierced the roof, renders regarding this matter. What it provided for were attempts of the crimes
it no less an attempt to kill. It is well settled principle of criminal law in enumerated in the said Code. Furthermore, in said jurisdiction, the
this country that where the criminal result of an attempt is not impossibility of committing the offense is merely a defense to an attempt
accomplished simply because of an obstruction in the way of the thing charge. In this regard, commentators and the cases generally divide the
to be operated upon, and these facts are unknown to the aggressor at impossibility defense into two categories: legal versus factual
the time, the criminal attempt is committed. impossibility. 22 In U.S. vs. Wilson 23 the Court held that:
In the case of Strokes vs. State, 19 where the accused failed to . . . factual impossibility of the commission of the crime is not a defense.
accomplish his intent to kill the victim because the latter did not pass by If the crime could have been committed had the circumstances been as
the place where he was lying-in wait, the court held him liable for the defendant believed them to be, it is no defense that in reality the
attempted murder. The court explained that: crime was impossible of commission.
It was no fault of Strokes that the crime was not committed. . . . It only Legal impossibility, on the other hand, is a defense which can be invoked
became impossible by reason of the extraneous circumstance that Lane to avoid criminal liability for an attempt. In U.S. vs. Berrigan, 24 the
did not go that way; and further, that he was arrested and prevented accused was indicated for attempting to smuggle letters into and out of
from committing the murder. This rule of the law has application only prison. The law governing the matter made the act criminal if done
where it is inherently impossible to commit the crime. It has no without knowledge and consent of the warden. In this case, the offender
application to a case where it becomes impossible for the crime to be intended to send a letter without the latter's knowledge and consent and
committed, either by outside interference or because of miscalculation the act was performed. However, unknown to him, the transmittal was
as to a supposed opportunity to commit the crime which fails to achieved with the warden's knowledge and consent. The lower court
materialize; in short it has no application to the case when the held the accused liable for attempt but the appellate court reversed. It
held unacceptable the contention of the state that "elimination of
impossibility as a defense to a charge of criminal attempt, as suggested Petitioner, this Court sentences him to suffer the penalty of six (6)
by the Model Penal Code and the proposed federal legislation, is months of arresto mayor, together with the accessory penalties provided
consistent with the overwhelming modern view". In disposing of this by the law, and to pay the costs.
contention, the Court held that the federal statutes did not contain such
SO ORDERED.
provision, and thus, following the principle of legality, no person could
be criminally liable for an act which was not made criminal by law. Feliciano, Regalado and Nocon, JJ., concur.
Further, it said:
Congress has not yet enacted a law that provides that intent plus act
plus conduct constitutes the offense of attempt irrespective of legal
impossibility until such time as such legislative changes in the law take
place, this court will not fashion a new non-statutory law of criminal
attempt.
testimony declared that when Bernabe lay flat on the floor and did not
stir, an old man felt hispulse and pronounced him dead.
his stomach about thirty meters away from the house. Three days
afterwards Bernabe wasintered.Saladino lost no time preparing his The medical expert, on the contrary, asserted that death was due to the
defense. On that same day, June 24, he swore beforethe assistant fiscal loss of bloodoccasioned by the three shots that pierced the body of
an affidavit stating that, while he was conversing with Pasion inside
Bernabe. Alejos attorney
thehouse, Luis Bernabe was downstairs under the vigilance of
Anastacio Alejo; that four shots weresuddenly heard; and that Alejo, it -de-officio madea thorough analysis of such testimony, pointing out that
turned out, had fired at Bernabe because the latter hadattempted to the medical examination was superficial,because it took place a few
escape.We also wrote a joint affidavit of the three policemen moments before the burial when the body was already in a
corroborating his own version of the affair. He requested the
said officers to sign, and they had not the courage to decline.However a moderately advance state of decomposition
few days afterwards the fiscal quizzed Quevedo, and this man gave a
, and that the conclusion derived by said expertfrom the amount of blood
different
in the garments worn by the corpse which he examined were not
story: one that subsequently accorded with the account given by the thoseworn at the time of the shooting; second because the cadaver had
Peoples witnesses during been embalmed and the stainson the clothing might have been
produced by the embalming fluid that oozed out; and thirdbecause in
the trial.On the witness stand, Bartolo Saladino stuck to his version, post-mortem wounds blood comes out too from the blood
which was corroborated byFelix Pasion, the man who having charged vessels. (Angeles, LegalMedicine Sec. 105) All of which raise, at least,
Luis Bernabe, was indirectly the cause of the outrage, a doubt that Bernabe, was already dead whenshot. Such doubt must be
resolved in favor of appellant Alejo.From the foregoing it is plain that
and who was understandably interested in Saladinos
Bernabe having died as a consequence of the violentmauling
exoneration. However it was rejected bythe trial judge, correctly we by Saladino, the latter must be declared guilty of
believe, because it was contradicted (1) by the three policemen whohad assassination. Anastacio Alejo doesnot appear to have conspired with
no reason to falsify (2) by the nature and direction of the wounds him, and is not liable either as principal or as accomplice of the
described by the doctorwho saw them, wounds which could not have murder. But he is guilty as accessory after the fact for having performed
been inflicted while Bernabe was running awayand (3) by the discovery acts tending toconceal Saladino
of one of the bullets embedded in the ground underneath the corpse
s crime by making it appear that Ber
of Luis Bernabe. There is no doubt in our minds that this man is guilty of
having cruelly torturedand treacherously caused the death of Luis nabe had run away.U.S. v. Cuison 20 Phil. 433 is a relevant
Bernabe.On the other hand Anastacio Alejo admitted having whipped example. Facundo Balangac was shot frombehind by Private Valentin
and shot Luis Bernabe uponorders of Saladino, who allegedly backed Fortuna in the cemetery of Barili, Cebu.
his command to shoot by pointing his pistol at Alejo.His attorneys also
insist that Luis Bernabe was already dead when Alejo fired at the
s gun. into the air; then thedefendant, with the private Fortunam, went to the
house of Epimaco Sosa to ask him for a daggerto place beside the body
We believe the shooting occurred in the manner described by the of a man whom they had shot, thereby to give the appearance that
prosecution witnesses. thedeceased had been carrying a dagger.
Yet the matter of Bernabes moment of death is of grave doubt. Two eye
-witnesses whodeclared for the prosecution, namely, policemen This court declared the defendant Cuison guilty of accessory after the
Quevedo and Oaman repeatedly stated on thewitness stand that after fact saying:
the maltreatment, and before Bernabe was carried downstairs to be
shot,he had already expired. Policeman Jorge Plan, another eye- But we do find criminal liability in the acts performed by Corporal
Cuison, even
though he obeyed orders from his Lieutenant, Poggi; such liability
consists in his havingintervened subsequently to the commission of the
crime, by furnishing the means to makeit appear that the deceased was
armed and that it was necessary to kill him on account of his resistance
to the constabulary man, who, to lend color to such pretended
resistance,discharged their firearms into the air, under the direction of
Cuison, at the place therewhere the corpse was lying; and also consists
in his having tried to find a dagger to placebeside the deceased. Such
acts must be characterized as concealment, and since they arenot only
wrong but also unlawful, the defendant is not exempt from liability, even
thoughhe acted in obedience to a command from his superior, because
such command wasillegal and in conflict with law and justice. Therefore
it can not be alleged that obediencewas due, or that it exempts the
defendant from criminal liability.
- versus - CHICO-NAZARIO, made by customer Baby Aquino to the Mega Foam Int'l. Inc. to the
damage and prejudice of the latter in the aforesaid stated amount
VELASCO, JR., of P10,000.00.
NACHURA, and
Respondent. The prosecution's evidence, which both the RTC and the CA found to
be more credible, reveals the events that transpired to be as follows.
July 13, 2009
x-----------------------------------------------------------------------------------------x
In the month of June 1997, Isabelita Aquino Milabo, also known as Baby
Aquino, handed petitioner Banco De Oro (BDO) Check Number
0132649 postdated July 14, 1997 in the amount of P10,000.00. The
check was payment for Baby Aquino's purchases from Mega Foam Int'l.,
DECISION
Inc., and petitioner was then the collector of Mega Foam. Somehow, the
check was deposited in the Land Bank account of Generoso Capitle, the
husband of Jacqueline Capitle; the latter is the sister of petitioner and
the former pricing, merchandising and inventory clerk of Mega Foam.
PERALTA, J.: received a phone call sometime in the middle of July from one of their
customers, Jennifer Sanalila. The customer wanted to know if she could
issue checks payable to the account of Mega Foam, instead of issuing
the checks payable to CASH. Said customer had apparently been
Before us is a petition for review on certiorari filed by petitioner Gemma
instructed by Jacqueline Capitle to make check payments to Mega Foam
T. Jacinto seeking the reversal of the Decision[1] of the Court of Appeals
payable to CASH. Around that time, Ricablanca also received a phone
(CA) in CA-G.R. CR No. 23761 dated December 16, 2003, affirming
call from an employee of Land Bank, Valenzuela Branch, who was
petitioner's conviction of the crime of Qualified Theft, and its
looking for Generoso Capitle. The reason for the call was to inform
Resolution[2] dated March 5, 2004 denying petitioner's motion for
Capitle that the subject BDO check deposited in his account had been
reconsideration.
dishonored.
decided not to go with the group because she decided to go shopping. It
was only petitioner, her husband, Ricablanca and Valencia who then
Ricablanca then phoned accused Anita Valencia, a former
boarded petitioner's jeep and went on to Baby Aquino's factory. Only
employee/collector of Mega Foam, asking the latter to inform Jacqueline
Ricablanca alighted from the jeep and entered the premises of Baby
Capitle about the phone call from Land Bank regarding the bounced
Aquino, pretending that she was getting cash from Baby
check. Ricablanca explained that she had to call and relay the message
Aquino. However, the cash she actually brought out from the premises
through Valencia, because the Capitles did not have a phone; but they
was the P10,000.00 marked money previously given to her by
could be reached through Valencia, a neighbor and former co-employee
Dyhengco. Ricablanca divided the money and upon returning to the
of Jacqueline Capitle at Mega Foam.
jeep, gave P5,000.00 each to Valencia and petitioner. Thereafter,
Valencia then told Ricablanca that the check came from Baby Aquino, petitioner and Valencia were arrested by NBI agents, who had been
and instructed Ricablanca to ask Baby Aquino to replace the check with watching the whole time.
cash. Valencia also told Ricablanca of a plan to take the cash and divide
it equally into four: for herself, Ricablanca, petitioner Jacinto and
Jacqueline Capitle. Ricablanca, upon the advise of Mega Foam's Petitioner and Valencia were brought to the NBI office where the
accountant, reported the matter to the owner of Mega Foam, Joseph Forensic Chemist found fluorescent powder on the palmar and dorsal
Dyhengco. aspects of both of their hands. This showed that petitioner
and Valencia handled the marked money. The NBI filed a criminal case
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to
for qualified theft against the two and one Jane Doe who was later
confirm that the latter indeed handed petitioner a BDO check
identified as Jacqueline Capitle, the wife of Generoso Capitle.
for P10,000.00 sometime in June 1997 as payment for her purchases
from Mega Foam.[4] Baby Aquino further testified that, sometime in July The defense, on the other hand, denied having taken the subject check
1997, petitioner also called her on the phone to tell her that the BDO and presented the following scenario.
check bounced.[5] Verification from company records showed that
petitioner never remitted the subject check to Mega Foam. However,
Baby Aquino said that she had already paid Mega Foam P10,000.00 Petitioner admitted that she was a collector for Mega Foam until she
cash in August 1997 as replacement for the dishonored check.[6] resigned on June 30, 1997, but claimed that she had stopped collecting
payments from Baby Aquino for quite some time before her resignation
Generoso Capitle, presented as a hostile witness, admitted depositing
from the company. She further testified that, on the day of the arrest,
the subject BDO check in his bank account, but explained that the check
Ricablanca came to her mothers house, where she was staying at that
came into his possession when some unknown woman arrived at his
time, and asked that she accompany her (Ricablanca) to Baby Aquino's
house around the first week of July 1997 to have the check
house. Since petitioner was going for a pre-natal check-up at
rediscounted. He parted with his cash in exchange for the check without
the Chinese General Hospital, Ricablanca decided to hitch a ride with
even bothering to inquire into the identity of the woman or her
the former and her husband in their jeep going to Baby Aquino's place
address. When he was informed by the bank that the check bounced,
in Caloocan City. She allegedly had no idea why Ricablanca asked
he merely disregarded it as he didnt know where to find the woman who
them to wait in their jeep, which they parked outside the house of Baby
rediscounted the check.
Aquino, and was very surprised when Ricablanca placed the money on
Meanwhile, Dyhengco filed a Complaint with the National Bureau of her lap and the NBI agents arrested them.
Investigation (NBI) and worked out an entrapment operation with its
Anita Valencia also admitted that she was the cashier of Mega Foam
agents. Ten pieces of P1,000.00 bills provided by Dyhengco were
until she resigned on June 30, 1997. It was never part of her job to
marked and dusted with fluorescent powder by the NBI.Thereafter, the
collect payments from customers. According to her, on the morning
bills were given to Ricablanca, who was tasked to pretend that she was
of August 21, 1997, Ricablanca called her up on the phone, asking if she
going along with Valencia's plan.
(Valencia) could accompany her (Ricablanca) to the house of Baby
On August 15, 2007, Ricablanca and petitioner met at the latter's Aquino. Valencia claims that she agreed to do so, despite her admission
house. Petitioner, who was then holding the bounced BDO check, during cross-examination that she did not know where Baby Aquino
handed over said check to Ricablanca. They originally intended to resided, as she had never been to said house. They then met at the
proceed to Baby Aquino's place to have the check replaced with cash, house of petitioner's mother, rode the jeep of petitioner and her
but the plan did not push through. However, they agreed to meet again husband, and proceeded to Baby Aquino's place. When they arrived at
on August 21, 2007. said place, Ricablanca alighted, but requested them to wait for her in the
jeep. After ten minutes, Ricablanca came out and, to her
On the agreed date, Ricablanca again went to petitioners house, where
surprise, Ricablanca gave her money and so she even asked, What is
she met petitioner and Jacqueline Capitle. Petitioner, her husband, and
this? Then, the NBI agents arrested them.
Ricablanca went to the house of Anita Valencia; Jacqueline Capitle
2. Whether or not a worthless check can be the object of theft; and
The trial of the three accused went its usual course and, on October 4,
1999, the RTC rendered its Decision, the dispositive portion of which
3. Whether or not the prosecution has proved petitioner's guilt beyond
reads:
reasonable doubt.[8]
to suffer imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND constitute the elements of the crime of qualified theft defined under
ELEVEN (11) DAYS, as minimum, to SIX (6) YEARS, EIGHT (8) Article 308, in relation to Article 310, both of the Revised Penal Code:
MONTHS AND TWENTY (20) DAYS, as maximum. (1) the taking of personal property - as shown by the fact that petitioner,
as collector for Mega Foam, did not remit the customer's check payment
to her employer and, instead, appropriated it for herself; (2) said property
belonged to another the check belonged to Baby Aquino, as it was her
SO ORDERED.[7]
payment for purchases she made; (3) the taking was done with intent to
gain this is presumed from the act of unlawful taking and further shown
by the fact that the check was deposited to the bank account of
The three appealed to the CA and, on December 16, 2003, a Decision
petitioner's brother-in-law; (4) it was done without the owners consent
was promulgated, the dispositive portion of which reads, thus:
petitioner hid the fact that she had received the check payment from her
employer's customer by not remitting the check to the company; (5) it
was accomplished without the use of violence or intimidation against
IN VIEW OF THE FOREGOING, the decision of the trial persons, nor of force upon things the check was voluntarily handed to
court is MODIFIED, in that: petitioner by the customer, as she was known to be a collector for the
company; and (6) it was done with grave abuse of confidence petitioner
is admittedly entrusted with the collection of payments from customers.
(a) the sentence against accused Gemma Jacinto stands;
However, as may be gleaned from the aforementioned Articles of the
(b) the sentence against accused Anita Valencia is reduced to 4 Revised Penal Code, the personal property subject of the theft must
months arresto mayor medium. have some value, as the intention of the accused is to gain from the
thing stolen. This is further bolstered by Article 309, where the law
(c) The accused Jacqueline Capitle is acquitted.
provides that the penalty to be imposed on the accused is dependent on
the value of the thing stolen.
SO ORDERED. In this case, petitioner unlawfully took the postdated check belonging to
Mega Foam, but the same was apparently without value, as it was
subsequently dishonored. Thus, the question arises on whether the
A Partial Motion for Reconsideration of the foregoing CA Decision was crime of qualified theft was actually produced.
filed only for petitioner Gemma Tubale Jacinto, but the same was denied
per Resolution dated March 5, 2004.
The Court must resolve the issue in the negative.
1. Whether or not petitioner can be convicted of a crime not charged Intod guilty of attempted murder. But upon review by this Court, he was
in the information; adjudged guilty only of an impossible crime as defined and penalized in
paragraph 2, Article 4, in relation to Article 59, both of the Revised Penal
Code, because of the factual impossibility of producing the xxxx
crime. Pertinent portions of said provisions read as follows:
2. By any person performing an act which would be an In Intod, the Court went on to give an example of an offense that
offense against persons or property, were it not for the inherent involved factual impossibility, i.e., a man puts his hand in the coat
impossibility of its accomplishment or on account of the employment of pocket of another with the intention to steal the latter's wallet, but gets
inadequate to ineffectual means. (emphasis supplied) nothing since the pocket is empty.
Article 59. Penalty to be imposed in case of failure to commit the crime Herein petitioner's case is closely akin to the above example of factual
because the means employed or the aims sought are impossible. - impossibility given in Intod. In this case, petitioner performed all the acts
When the person intending to commit an offense has already performed to consummate the crime of qualified theft, which is a crime against
the acts for the execution of the same but nevertheless the crime was property. Petitioner's evil intent cannot be denied, as the mere act of
not produced by reason of the fact that the act intended was by its nature unlawfully taking the check meant for Mega Foam showed her intent to
one of impossible accomplishment or because the means employed by gain or be unjustly enriched. Were it not for the fact that the check
such person are essentially inadequate to produce the result desired by bounced, she would have received the face value thereof, which was
him, the court, having in mind the social danger and the degree of not rightfully hers. Therefore, it was only due to the extraneous
criminality shown by the offender, shall impose upon him the penalty circumstance of the check being unfunded, a fact unknown to petitioner
of arresto mayor or a fine ranging from 200 to 500 pesos. at the time, that prevented the crime from being produced. The thing
unlawfully taken by petitioner turned out to be absolutely worthless,
Thus, the requisites of an impossible crime are: (1) that the act
because the check was eventually dishonored, and Mega Foam had
performed would be an offense against persons or property; (2) that the
received the cash to replace the value of said dishonored check.
act was done with evil intent; and (3) that its accomplishment was
inherently impossible, or the means employed was either inadequate or
ineffectual. The aspect of the inherent impossibility of accomplishing the
The fact that petitioner was later entrapped receiving the P5,000.00
intended crime under Article 4(2) of the Revised Penal Code was further
marked money, which she thought was the cash replacement for the
explained by the Court in Intod[10] in this wise:
dishonored check, is of no moment. The Court held in Valenzuela v.
People[12] that under the definition of theft in Article 308 of the Revised
Penal Code, there is only one operative act of execution by the actor
Under this article, the act performed by the offender cannot produce an
involved in theft the taking of personal property of another. Elucidating
offense against persons or property because: (1) the commission ofthe
further, the Court held, thus:
offense is inherently impossible of accomplishment; or (2) the means
employed is either (a) inadequate or (b) ineffectual.
x x x when is the crime of theft produced? There would be all but certain
unanimity in the position that theft is produced when there is deprivation
Legal impossibility occurs where the intended acts, even if completed,
of personal property due to its taking by one with intent to gain. Viewed
would not amount to a crime.
from that perspective, it is immaterial to the product of the felony that the
offender, once having committed all the acts of execution for theft, is
able or unable to freely dispose of the property stolen since the
deprivation from the owner alone has already ensued from such acts of
execution. x x x
process clause of the Constitution. If at all, that fraudulent scheme could would have been murder if the girl had been killed. It is qualified by the
have been another possible source of criminal liability. circumstance of alevosia, the accused making a sudden attack upon his
victim from the rear, or partly from the rear, and dealing her a terrible
IN VIEW OF THE FOREGOING, the petition is GRANTED. The blow in the back and side with his bolo. Such an attack necessitates the
Decision of the Court of Appeals, dated December 16, 2003, and its finding that it was made treacherously; and that being so the crime would
Resolution dated March 5, 2004, are MODIFIED. Petitioner Gemma T. have been qualified as murder if death had resulted.
Jacinto is found GUILTY of an IMPOSSIBLE CRIME as defined and
penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, As to the second contention, we are of the opinion that the crime was
respectively. Petitioner is sentenced to suffer the penalty of six (6) frustrated and not attempted murder. Article 3 of the Penal Code defines
months of arrresto mayor, and to pay the costs. a frustrated felony as follows:
An attempted felony is defined thus: That the case before us is frustrated is clear.
There is an attempt when the offender commences the commission of The penalty should have been thirteen years of cadena temporal there
the felony directly by overt acts, and does not perform all the acts of being neither aggravating nor mitigating circumstance. As so modified,
execution which constitute the felony by reason of some cause or the judgment is affirmed with costs. So ordered.
accident other than his own voluntarily desistance.
Torres and Araullo, JJ., concur.
The crime cannot be attempted murder. This is clear from the fact that Carson and Trent, JJ., concur in the result.
the defendant performed all of the acts which should have resulted in
the consummated crime and voluntarily desisted from further acts. A
crime cannot be held to be attempted unless the offender, after
beginning the commission of the crime by overt acts, is prevented,
against his will, by some outside cause from performing all of the acts
which should produce the crime. In other words, to be an attempted
crime the purpose of the offender must be thwarted by a foreign force or
agency which intervenes and compels him to stop prior to the moment
when he has performed all of the acts which should produce the crime
as a consequence, which acts it is his intention to perform. If he has
performed all of the acts which should result in the consummation of the
crime and voluntarily desists from proceeding further, it can not be an
attempt. The essential element which distinguishes attempted from
frustrated felony is that, in the latter, there is no intervention of a foreign
or extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts have been
performed which should result in the consummated crime; while in the
former there is such intervention and the offender does not arrive at the
point of performing all of the acts which should produce the crime. He is
stopped short of that point by some cause apart from his voluntary
desistance.
The subjective phase is that portion of the acts constituting the crime
included between the act which begins the commission of the crime and
the last act performed by the offender which, with the prior acts, should
result in the consummated crime. From that time forward the phase is
objective. It may also be said to be that period occupied by the acts of
the offender over which he has control that period between the point
where he begins and the points where he voluntarily desists.
If between these two points the offender is stopped by reason of any
cause outside of his own voluntary desistance, the subjective phase has
On April 12, 1999, an Information was filed in the RTC of Imus, Cavite,
charging Esmeraldo, Ismael and Edgardo, all surnamed Rivera, of
attempted murder. The accusatory portion of the Information reads:
FIRST DIVISION
ESMERALDO RIVERA, ISMAEL G.R. No. 166326 That on or about the 3rd day of May 1998, in the Municipality of
Dasmarias, Province of Cavite, Philippines, and within the jurisdiction of
RIVERA, EDGARDO RIVERA, this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, with intent to kill, with
Petitioners, Present:
treachery and evident premeditation, did then and there, wilfully,
PANGANIBAN, C.J., Chairperson, unlawfully, and feloniously attack, assault and hit with a piece of hollow
block, one RUBEN RODIL who thereby sustained a non-mortal injury on
YNARES-SANTIAGO,
his head and on the different parts of his body, the accused thus
AUSTRIA-MARTINEZ, commenced the commission of the felony directly by overt acts, but
failed to perform all the acts of execution which would produce the crime
- versus - CALLEJO, SR., and
of Murder by reason of some causes other than their own spontaneous
CHICO-NAZARIO, JJ. desistance, that is, the said Ruben Rodil was able to ran (sic) away and
the timely response of the policemen, to his damage and prejudice.
CONTRARY TO LAW.[3]
Promulgated:
DECISION
At noon of May 2, 1998, Ruben went to a nearby store to buy food.
Edgardo mocked him for being jobless and dependent on his wife for
support. Ruben resented the rebuke and hurled invectives at Edgardo.
A heated exchange of words ensued.
CALLEJO, SR., J.:
At about 7:30 p.m. the next day, a Sunday, Ruben went to the store to
buy food and to look for his wife. His three-year-old daughter was with
This is a petition for review of the Decision[1] of the Court of Appeals him. Momentarily, Esmeraldo and his two brothers, Ismael and Edgardo,
(CA) in CA-G.R. CR No. 27215 affirming, with modification, the emerged from their house and ganged up on Ruben. Esmeraldo and
Decision[2] of the Regional Trial Court (RTC) of Cavite, Branch 90, in Ismael mauled Ruben with fist blows and he fell to the ground. In that
Criminal Case No. 6962-99, entitled People of the Philippines. v. helpless position, Edgardo hit Ruben three times with a hollow block on
Esmeraldo Rivera, et al. the parietal area. Esmeraldo and Ismael continued mauling Ruben.
People who saw the incident shouted: Awatin sila! Awatin sila! Ruben
felt dizzy but managed to stand up. Ismael threw a stone at him, hitting
him at the back. When policemen on board a mobile car arrived,
Esmeraldo, Ismael and Edgardo fled to their house.
SO ORDERED.[8]
For his part, Ismael testified that he tried to pacify Ruben and his brother The accused, now petitioners, filed the instant petition for review
Esmeraldo, but Ruben grabbed him by the hair. He managed to free on certiorari, alleging that the CA erred in affirming the RTC decision.
himself from Ruben and the latter fled. He went home afterwards. He They insist that the prosecution failed to prove that they had the intention
did not see his brother Edgardo at the scene. to kill Ruben when they mauled and hit him with a hollow block.
Petitioners aver that, based on the testimony of Dr. Cagingin, Ruben
sustained only a superficial wound in the parietal area; hence, they
should be held criminally liable for physical injuries only. Even if
Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was
petitioners had the intent to kill Ruben, the prosecution failed to prove
throwing garbage in front of their house. Ruben arrived and he went
treachery; hence, they should be held guilty only of attempted homicide.
inside the house to avoid a confrontation. Ruben banged the gate and
ordered him to get out of their house and even threatened to shoot him.
His brother Esmeraldo went out of their house and asked Ruben what
the problem was. On the other hand, the CA held that the prosecution was able to prove
A fist fight ensued. Edgardo rushed out of the house and pushed Ruben petitioners intent to kill Ruben:
On August 30, 2002, the trial court rendered judgment finding all the
accused guilty beyond reasonable doubt of frustrated murder. The
dispositive portion of the decision reads: Q: And while you were being boxed by Esmeraldo and Bong, what
happened next?
A: When I was already lying [down] xxx, Dagol Rivera showed up with a
WHEREFORE, premises considered, all the accused are found GUILTY
piece of hollow block xxx and hit me thrice on the head, Sir.
beyond reasonable doubt and are sentenced to an imprisonment of six
(6) years and one (1) day to eight (8) years of prision mayor as the
prosecution has proved beyond reasonable doubt the culpability of the
Q: And what about the two (2), what were they doing when you were hit
accused. Likewise, the accused are to pay, jointly and severally, civil
with a hollow block by Dagol?
indemnity to the private complainant in the amount of P30,000.00.
A: I was already lying on the ground and they kept on boxing me while
Dagol was hitting, Sir.
wound is not sufficient to cause death, but intent to kill is evident, the
crime is attempted. Intent to kill was shown by the fact that the three (3)
As earlier stated by Dr. Cagingin, appellants could have killed the victim
brothers helped each other maul the defenseless victim, and even after
had the hollow block directly hit his head, and had the police not
he had already fallen to the ground; that one of them picked up a cement
promptly intervened so that the brothers scampered away. When a
hollow block and proceeded to hit the victim on the head with it three
wound is not sufficient to cause death, but intent to kill is evident, the
times; and that it was only the arrival of the policemen that made the
crime is attempted. Intent to kill was shown by the fact that the (3)
appellants desist from their concerted act of trying to kill Ruben
brothers helped each other maul the defenseless victim, and even after
Rodil.[11]
he had already fallen to the ground; that one of them even picked up a
cement hollow block and proceeded to hit the victim on the head with it
three times; and that it was only the arrival of the policemen that made
The petition is denied for lack of merit.
the appellants desist from their concerted act of trying to kill Ruben
Rodil.[10]
The Court in People v. Lizada[15] elaborated on the concept of an overt The appellate court sentenced petitioners to suffer an indeterminate
or external act, thus: penalty of two (2) years of prision correccional in its minimum period, as
minimum, to six years and one day of prision mayor in its maximum
period, as maximum. This is erroneous. Under Article 248 of the Revised
An overt or external act is defined as some physical activity or deed, Penal Code, as amended by Republic Act No. 7659, the penalty for
indicating the intention to commit a particular crime, more than a mere murder is reclusion perpetua to death. Since petitioners are guilty only
planning or preparation, which if carried out to its complete termination of attempted murder, the penalty should be reduced by two degrees,
following its natural course, without being frustrated by external conformably to Article 51 of the Revised Penal Code. Under paragraph
obstacles nor by the spontaneous desistance of the perpetrator, will 2 of Article 61, in relation to Article 71 of the Revised Penal Code, such
logically and necessarily ripen into a concrete offense. The raison a penalty is prision mayor. In the absence of any modifying circumstance
detre for the law requiring a direct overt act is that, in a majority of cases, in the commission of the felony (other than the qualifying circumstance
of treachery), the maximum of the indeterminate penalty shall be taken
from the medium period of prision mayorwhich has a range of from eight CHICO-NAZARIO,
(8) years and one (1) day to ten (10) years. To determine the minimum
GARCIA,
of the indeterminate penalty, the penalty of prision mayor should be
reduced by one degree, prision correccional, which has a range of six VELASCO, and
(6) months and one (1) day to six (6) years.
PEOPLE OF THE PHILIPPINES NACHURA, JJ.
Respondents.
DECISION
SO ORDERED.
TINGA, J.:
This case aims for prime space in the firmament of our criminal law
jurisprudence. Petitioner effectively concedes having performed the
ARISTOTEL VALENZUELA y G. R. No. 160188 felonious acts imputed against him, but instead insists that as a result,
he should be adjudged guilty of frustrated theft only, not the felony in its
NATIVIDAD,
consummated stage of which he was convicted. The proposition rests
Petitioner, Present: on a common theory expounded in two well-known
decisions[1] rendered decades ago by the Court of Appeals, upholding
the existence of frustrated theft of which the accused in both cases were
PUNO, C.J., found guilty. However, the rationale behind the rulings has never been
affirmed by this Court.
QUISUMBING,
SANTIAGO,
As far as can be told,[2] the last time this Court extensively considered
- versus - GUTIERREZ, whether an accused was guilty of frustrated or consummated theft was
in 1918, in People v. Adiao.[3] A more cursory
CARPIO,
MARTINEZ,
CORONA,
CARPIO MORALES,
treatment of the question was followed in 1929, in People v.
AZCUNA, Sobrevilla,[4] and in 1984, in Empelis v. IAC.[5] This petition now gives
occasion for us to finally and fully measure if or how frustrated theft is
TINGA,
susceptible to commission under the Revised Penal Code.
After pleading not guilty on arraignment, at the trial, petitioner and
Calderon both claimed having been innocent bystanders within the
I.
vicinity of the Super Sale Club on the afternoon of 19 May 1994 when
they were haled by Lago and his fellow security guards after a
commotion and brought to the Baler PNP Station. Calderon alleged that
The basic facts are no longer disputed before us. The case stems from on the afternoon of the incident, he was at the Super Sale Club to
an Information[6] charging petitioner Aristotel Valenzuela (petitioner) withdraw from his ATM account, accompanied by his neighbor, Leoncio
and Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, Rosulada.[11] As the queue for the ATM was long, Calderon and
at around 4:30 p.m., petitioner and Calderon were sighted outside the Rosulada decided to buy snacks inside the supermarket. It was
Super Sale Club, a supermarket within the ShoeMart (SM) complex while they were eating that they heard thegunshot fired by
along North EDSA, by Lorenzo Lago (Lago), a security guard who was Lago, leading them to head out of the building to check what was
then manning his post at the open parking area of the supermarket. Lago
saw petitioner, who was wearing an identification card with the mark
Receiving Dispatching Unit (RDU), hauling a push cart with cases of
detergent of the well-known Tide brand. Petitioner unloaded these
cases in an open parking space, where Calderon was waiting. Petitioner
then returned inside the supermarket, and after five (5) minutes,
emerged with more cartons of Tide Ultramatic and again unloaded these
transpiring. As they were outside, they were suddenly grabbed by a
boxes to the same area in the open parking space.[7]
security guard, thus commencing their detention.[12]Meanwhile,
petitioner testified during trial that he and his cousin, a Gregorio
Valenzuela,[13] had been at the parking lot, walking beside the nearby
BLISS complex and headed to ride a tricycle going to Pag-asa, when
they saw the security guard Lago fire a shot. The gunshot caused him
and the other people at the scene to start running, at which point he was
Thereafter, petitioner left the parking area and haled a taxi. He boarded apprehended by Lago and brought to the security office. Petitioner
the cab and directed it towards the parking space where Calderon was claimed he was detained at the security office until around 9:00 p.m., at
waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, which time he and the others were brought to the Baler Police Station.
then boarded the vehicle. All these acts were eyed by Lago, who At the station, petitioner denied having stolen the cartons of detergent,
proceeded to stop the taxi as it was leaving the open parking area. When but he was detained overnight, and eventually brought to the
Lago asked petitioner for a receipt of the merchandise, petitioner and prosecutors office where he was charged with theft.[14] During
Calderon reacted by fleeing on foot, but Lago fired a warning shot to petitioners cross-examination, he admitted that he had been employed
alert his fellow security guards of the incident. Petitioner and Calderon as a bundler of GMS Marketing, assigned at the supermarket though not
were apprehended at the scene, and the stolen merchandise at SM.[15]
recovered.[8] The filched items seized from the duo were four (4) cases
of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3)
additional cases of detergent, the goods with an aggregate value
In a Decision[16] promulgated on 1 February 2000, the Regional Trial
of P12,090.00.[9]
Court (RTC) of Quezon City, Branch 90, convicted both petitioner and
Calderon of the crime of consummated theft. They were sentenced to
an indeterminate prison term of two (2) years of prision correccional as
Petitioner and Calderon were first brought to the SM security office minimum to seven (7) years of prision mayor as maximum.[17] The RTC
before they were transferred on the same day to the Baler Station II of found credible the testimonies of the prosecution witnesses and
the Philippine National Police, Quezon City, for investigation. It appears established the convictions on the positive identification of the accused
from the police investigation records that apart from petitioner and as perpetrators of the crime.
Calderon, four (4) other persons were apprehended by the security
guards at the scene and delivered to police custody at the Baler PNP
Station in connection with the incident. However, after the matter was
Both accused filed their respective Notices of Appeal,[18] but only
referred to the Office of the Quezon City Prosecutor, only petitioner and
petitioner filed a brief[19] with the Court of Appeals, causing the
Calderon were charged with theft by the Assistant City Prosecutor, in
appellate court to deem Calderons appeal as abandoned and
Informations prepared on 20 May 1994, the day after the incident.[10]
consequently dismissed. Before the Court of Appeals, petitioner argued
that he should only be convicted of frustrated theft since at the time he
was apprehended, he was never placed in a position to freely dispose
of the articles stolen.[20] However, in its Decision dated 19 June doctrinal, such conclusion could profoundly influence a multitude of
2003,[21] the Court of Appeals rejected this contention and affirmed routine theft prosecutions, including commonplace shoplifting. Any
petitioners conviction.[22] Hence the present Petition for scenario that involves the thief having to exit with the stolen property
Review,[23] which expressly seeks that petitioners conviction be through a supervised egress, such as a supermarket checkout counter
modified to only of Frustrated Theft.[24] or a parking area pay booth, may easily call for the application
of Dio and Flores. The fact that lower courts have not hesitated to lay
down convictions for frustrated theft further validates
Even in his appeal before the Court of Appeals, petitioner effectively that Dio and Flores and the theories offered therein on frustrated theft
conceded both his felonious intent and his actual participation in the theft have borne some weight in our jurisprudential system. The time is thus
of several cases of detergent with a total value of P12,090.00 of which ripe for us to examine whether those theories are correct and should
he was charged.[25] As such, there is no cause for the Court to consider continue to influence prosecutors and judges in the future.
a factual scenario other than that presented by the prosecution, as
affirmed by the RTC and the Court of Appeals. The only question to
consider is whether under the given facts, the theft should be deemed
as consummated or merely frustrated.
II. III.
In arguing that he should only be convicted of frustrated theft, petitioner To delve into any extended analysis of Dio and Flores, as well as the
cites[26] two decisions rendered many years ago by the Court of specific issues relative to frustrated theft, it is necessary to first refer to
Appeals: People v. Dio[27] and People v. Flores.[28] Both decisions the basic rules on the three stages of crimes under our Revised Penal
elicit the interest of this Court, as they modified trial court convictions Code.[30]
from consummated to frustrated theft and involve a factual milieu that
bears similarity to the present case. Petitioner invoked the same rulings
in his appeal to the Court of Appeals, yet the appellate court did not Article 6 defines those three stages, namely the consummated,
expressly consider the import of the rulings when it affirmed the frustrated and attempted felonies. A felony is consummated when all the
conviction. elements necessary for its execution and accomplishment are present.
It is frustrated when the offender performs all the acts of execution which
would produce the felony as a consequence but which, nevertheless, do
It is not necessary to fault the Court of Appeals for giving short shrift to not produce it by reason of causes independent of the will of the
the Dio and Flores rulings since they have not yet been perpetrator. Finally, it is attempted when the offender commences the
expressly adopted as precedents by this Court. For whatever reasons, commission of a felony directly by overt acts, and does not perform all
the acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance.
Each felony under the Revised Penal Code has a subjective phase, or
the occasion to define or debunk the crime of frustrated theft has not
that portion of the acts constituting the crime included between the act
come to pass before us. Yet despite the silence on our
which begins the commission of the crime and the last act performed by
part, Dio and Flores have attained a level of renown reached by very
the offender which, with prior acts, should result in the consummated
few other appellate court rulings. They are comprehensively discussed
crime.[31] After that point has been breached, the subjective phase
in the most popular of our criminal law annotations,[29] and studied in
ends and the objective phase begins.[32] It has been held that if the
criminal law classes as textbook examples of frustrated crimes or even
offender never passes the subjective phase of the offense, the crime is
as definitive of frustrated theft.
merely attempted.[33] On the other hand, the subjective phase is
completely passed in case of frustrated crimes, for in such instances,
[s]ubjectively the crime is complete.[34]
More critically, the factual milieu in those cases is hardly akin to the
fanciful scenarios that populate criminal law exams more than they
actually occur in real life. Indeed, if we finally say that Dio and Flores are
Truly, an easy distinction lies between consummated and frustrated our Revised Penal Code does not suffer from such infirmity. From the
felonies on one hand, and attempted felonies on the other. So long as statutory definition of any felony, a decisive passage or term is
the offender fails to complete all the acts of execution despite embedded which attests when the felony is produced by the acts of
commencing the commission of a felony, the crime is undoubtedly in the execution. For example, the statutory definition of murder or homicide
attempted stage. Since the specific acts of execution that define each expressly uses the phrase shall kill another, thus making it clear that the
crime under the Revised Penal Code are generally enumerated in the felony is produced by the death of the victim, and conversely, it is not
code itself, the task of ascertaining whether a crime is attempted only produced if the victim survives.
would need to compare the acts actually performed by the accused as
against the acts that constitute the felony under the Revised Penal
Code. We next turn to the statutory definition of theft. Under Article 308 of the
Revised Penal Code, its elements are spelled out as follows:
generally furnishes the elements of each crime under the Revised Penal
1. Any person who, having found lost property, shall fail to deliver the
Code, while the elements in turn unravel the particular requisite acts of
same to the local authorities or to its owner;
execution and accompanying criminal intent.
2. Any person who, after having maliciously damaged the property of
another, shall remove or make use of the fruits or object of the damage
The long-standing Latin maxim actus non facit reum, nisi mens sit caused by him; and
In Spanish law, animo lucrandi was compounded with apoderamiento, So, in order to ascertain whether the theft is consummated or frustrated,
or unlawful taking, to characterize theft. Justice Regalado notes that the it is necessary to inquire as to how exactly is the felony of theft produced.
concept of apoderamiento once had a controversial interpretation and Parsing through the statutory definition of theft under Article 308, there
application. Spanish law had already discounted the belief that mere is one apparent answer provided in the language of the law that theft is
physical taking was constitutive of apoderamiento, finding that it had to already produced upon the tak[ing of] personal property of another
be coupled with the intent to appropriate the object in order to without the latters consent.
Defendant picked the pocket of the offended party while the latter was
hearing mass in a church. The latter on account of the solemnity of the We believe that such a contention is groundless. The [accused]
act, although noticing the theft, did not do anything to prevent it. succeeded in taking the pocket-book, and that determines the crime of
Subsequently, however, while the defendant was still inside the church, theft. If the pocket-book was afterwards recovered, such recovery does
the offended party got back the money from the defendant. The court not affect the [accuseds] criminal liability, which arose from the
said that the defendant had performed all the acts of execution and [accused] having succeeded in taking the pocket-book.[59]
considered the theft as consummated. (Decision of the Supreme Court
If anything, Sobrevilla is consistent with Adiao and the Spanish
of Spain, December 1, 1897.)
Supreme Court cases cited in the latter, in that the fact that the offender
was able to succeed in obtaining physical possession of the stolen item,
no matter how momentary, was able to consummate the theft.
The defendant penetrated into a room of a certain house and by means
of a key opened up a case, and from the case took a small box, which
was also opened with a key, from which in turn he took a purse
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited
containing 461 reales and 20 centimos, and then he placed the money
therein contradict the position of petitioner in this case. Yet to simply
over the cover of the case; just at this moment he was caught by two
affirm without further comment would be disingenuous, as there is
guards who were stationed in another room near-by. The court
another school of thought on when theft is consummated, as reflected
considered this as consummated robbery, and said: "[x x x] The accused
in the Dio and Flores decisions.
[x x x] having materially taken possession of the money from the moment
he took it from the place where it had been, and having taken it with his
hands with intent to appropriate the same, he executed all the acts
necessary to constitute the crime which was thereby produced; only the Dio was decided by the Court of Appeals in 1949, some 31 years
act of making use of the thing having been frustrated, which, however, after Adiao and 15 years before Flores. The accused therein, a driver
does not go to make the elements of the consummated crime." (Decision employed by the United States Army, had driven his truck into the port
of the Supreme Court of Spain, June 13, 1882.)[56] area of the South Harbor, to unload a truckload of materials to waiting
U.S. Army personnel. After he had finished unloading, accused drove
away his truck from the Port, but as he was approaching a checkpoint
of the Military Police, he was stopped by an M.P. who inspected the truck
It is clear from the facts of Adiao itself, and the three (3) Spanish
and found therein three boxes of army rifles. The accused later
decisions cited therein, that the criminal actors in all these cases had
contended that he had been stopped by four men who had loaded the
been able to obtain full possession of the personal property prior to their
boxes with the agreement that they were to meet him and retrieve the
apprehension. The interval between the commission of the acts of theft
rifles after he had passed the checkpoint. The trial court convicted
and the apprehension of the thieves did vary, from sometime later in the
accused of consummated theft, but the Court of Appeals modified the
1898 decision; to the very moment the thief had just extracted the money
conviction, holding instead that only frustrated theft had been
in a purse which had been stored as it was in the 1882 decision; and
committed.
before the thief had been able to spirit the item stolen from the building
where the theft took place, as had happened in Adiao and the 1897
decision. Still, such intervals proved of no consequence in those cases,
as it was ruled that the thefts in each of those cases was consummated In doing so, the appellate court pointed out that the evident intent of the
by the actual possession of the property belonging to another. accused was to let the boxes of rifles pass through the checkpoint,
perhaps in the belief that as the truck had already unloaded its cargo
inside the depot, it would be allowed to pass through the check point
without further investigation or checking.[60] This point was deemed
In 1929, the Court was again confronted by a claim that an accused was
material and indicative that the theft had not been fully produced, for the
guilty only of frustrated rather than consummated theft. The case
Court of Appeals pronounced that the fact determinative of
is People v. Sobrevilla,[57] where the accused, while in the midst of a
consummation is the ability of the thief to dispose freely of the articles
crowd in a public market, was already able to abstract a pocketbook from
stolen, even if it were more or less momentary.[61] Support for this
proposition was drawn from a decision of the Supreme Court of Spain Appeals, explicitly relying on Dio, did find that the accused was guilty
dated 24 January 1888 (1888 decision), which was quoted as follows: only of frustrated, and not consummated, theft.
Considerando que para que el apoderamiento de la cosa sustraida sea As noted earlier, the appellate court admitted it found no substantial
determinate de la consumacion del delito de hurto es preciso que so variance between Dio and Flores then before it. The prosecution
haga en circunstancias tales que permitan al sustractor la libre in Flores had sought to distinguish that case from Dio, citing a traditional
disposicion de aquella, siquiera sea mas o menos momentaneamente, ruling which unfortunately was not identified in the decision itself.
pues de otra suerte, dado el concepto del delito de hurto, no puede However, the Court of Appeals pointed out that the said traditional ruling
decirse en realidad que se haya producido en toda su extension, sin was qualified by the words is placed in a situation where [the actor] could
materializar demasiado el acto de tomar la cosa ajena.[62] dispose of its contents at once.[66] Pouncing on this qualification, the
appellate court noted that [o]bviously, while the truck and the van were
still within the compound, the petitioner could not have disposed of the
Integrating these considerations, the Court of Appeals then concluded: goods at once. At the same time, the Court of Appeals conceded that
[t]his is entirely different from the case where a much less bulk and more
common thing as money was the object of the crime, where freedom to
dispose of or make use of it is palpably less restricted,[67] though no
further qualification was offered what the effect would have been had
that alternative circumstance been present instead.
This court is of the opinion that in the case at bar, in order to make the
booty subject to the control and disposal of the culprits, the articles
stolen must first be passed through the M.P. check point, but since the
offense was opportunely discovered and the articles seized after all the
acts of execution had been performed, but before the loot came under
the final control and disposal of the looters, the offense can not be said Synthesis of the Dio and Flores rulings is in order. The determinative
to have been fully consummated, as it was frustrated by the timely characteristic as to whether the crime of theft was produced is the ability
intervention of the guard. The offense committed, therefore, is that of of the actor to freely dispose of the articles stolen, even if it were only
frustrated theft.[63] momentary. Such conclusion was drawn from an 1888 decision of the
Supreme Court of Spain which had pronounced that in determining
whether theft had been consummated, es preciso que so haga en
circunstancias tales que permitan al sustractor de aquella, siquiera sea
Dio thus laid down the theory that the ability of the actor to freely dispose
mas o menos momentaneamente. The qualifier siquiera sea mas o
of the items stolen at the time of apprehension is determinative as to
menos momentaneamente proves another important consideration, as
whether the theft is consummated or frustrated. This theory was applied
it implies that if the actor was in a capacity to freely dispose of the stolen
again by the Court of Appeals some 15 years later, in Flores, a case
items before apprehension, then the theft could be deemed
which according to the division of the court that decided it, bore no
consummated. Such circumstance was not present in
substantial variance between the circumstances [herein] and in
either Dio or Flores, as the stolen items in both cases were retrieved
[Dio].[64] Such conclusion is borne out by the facts in Flores. The
from the actor before they could be physically extracted from the
accused therein, a checker employed by the Luzon Stevedoring
guarded compounds from which the items were filched. However, as
Company, issued a delivery receipt for one empty sea van to the truck
implied in Flores, the character of the item stolen could lead to a different
driver who had loaded the purportedly empty sea van onto his truck at
conclusion as to whether there could have been free disposition, as in
the terminal of the stevedoring company. The truck driver proceeded to
the case where the chattel involved was of much less bulk and more
show the delivery receipt to the guard on duty at the gate of the terminal.
common x x x, [such] as money x x x.[68]
However, the guards insisted on inspecting the van, and discovered that
the empty sea van had actually contained other merchandise as
well.[65] The accused was prosecuted for theft qualified by abuse of
confidence, and found himself convicted of the consummated crime. In his commentaries, Chief Justice Aquino makes the following pointed
Before the Court of Appeals, accused argued in the alternative that he observation on the import of the Dio ruling:
was guilty only of attempted theft, but the appellate court pointed out
that there was no intervening act of spontaneous desistance on the part
of the accused that literally frustrated the theft. However, the Court of
the concept of frustrated theft itself, the question can even be asked
whether there is really such a crime in the first place.
on Viadas opinion that in order the theft may be consummated, es frustrated, and not consummated, theft. As we undertake this inquiry,
preciso que se haga en circumstancias x x x [[70]][71] we have to reckon with the import of this Courts 1984 decision
in Empelis v. IAC.[78]
crime is consummated after the accused had material possession of the four (4) persons in the premises of his plantation, in the act of gathering
thing with intent to appropriate the same, although his act of making use and tying some coconuts. The accused were surprised by the owner
of the thing was frustrated.[72] within the plantation as they were carrying with them the coconuts they
had gathered. The accused fled the scene, dropping the coconuts they
had seized, and were subsequently arrested after the owner reported
the incident to the police. After trial, the accused were convicted of
There are at least two other Court of Appeals rulings that are at seeming
qualified theft, and the issue they raised on appeal was that they were
variance with the Dio and Flores rulings. People v. Batoon[73] involved
guilty only of simple theft. The Court affirmed that the theft was qualified,
an accused who filled a container with gasoline from a petrol pump
following Article 310 of the Revised Penal Code,[79] but further held that
within view of a police detective, who followed the accused onto a
the accused were guilty only of frustrated qualified theft.
passenger truck where the arrest was made. While the trial court found
the accused guilty of frustrated qualified theft, the Court of Appeals held It does not appear from the Empelis decision that the issue of whether
that the accused was guilty of consummated qualified theft, finding that the theft was consummated or frustrated was raised by any of the
[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x parties. What does appear, though, is that the disposition of that issue
x indicate that actual taking with intent to gain is enough to consummate was contained in only two sentences, which we reproduce in full:
the crime of theft.[74]
In pointing out the distinction between Dio and Espiritu, Reyes wryly
Empelis held that the crime was only frustrated because the actors
observes that [w]hen the meaning of an element of a felony is
were not able to perform all the acts of execution which should have
controversial, there is bound to arise different rulings as to the stage of
produced the felon as a consequence.[81] However, per Article 6 of the
execution of that felony.[77] Indeed, we can discern from this survey of
Revised Penal Code, the crime is frustrated when the offender performs
jurisprudence that the state of the law insofar as frustrated theft is
all the acts of execution, though not producing the felony as a result. If
concerned is muddled. It fact, given the disputed foundational basis of
the offender was not able to perform all the acts of execution, the crime
is attempted, provided that the non- At the time our Revised Penal Code was enacted in 1930, the
performance was by reason of some cause or accident other than 1870 Codigo Penal de Espaa was then in place. The definition of the
spontaneous desistance. Empelis concludes that the crime was crime of theft, as provided then, read as follows:
For these reasons, we cannot attribute weight to Empelis as we 3. Los daadores que sustrajeren o utilizaren los frutos u objeto del
consider the present petition. Even if the two sentences we had cited dao causado, salvo los casos previstos en los artculos 606, nm. 1.0;
actually aligned with the definitions provided in Article 6 of the Revised 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617
Penal Code, such passage bears no reflection that it is the product of y 618.
the considered evaluation of the relevant legal or jurisprudential thought.
Instead, the passage is offered as if it were sourced from an indubitable
legal premise so settled it required no further explication.
It was under the ambit of the 1870 Codigo Penal that the aforecited
Spanish Supreme Court decisions were handed down. However, the
said code would be revised again in 1932, and several times thereafter.
Notably, Empelis has not since been reaffirmed by the Court, or even In fact, under the Codigo Penal Espaol de 1995, the crime of theft is now
cited as authority on theft. Indeed, we cannot see how Empeliscan simply defined as [e]l que, con nimo de lucro,
contribute to our present debate, except for the bare fact that it proves
that the Court had once deliberately found an accused guilty of frustrated
theft. Even if Empelis were considered as a precedent for frustrated
theft, its doctrinal value is extremely compromised by the erroneous
legal premises that inform it, and also by the fact that it has not been
entrenched by subsequent reliance. tomare las cosas muebles ajenas sin la voluntad de su dueo ser
castigado[82]
Notice that in the 1870 and 1995 definition of theft in the penal code
of Spain, la libre disposicion of the property is not an element or a
statutory characteristic of the crime. It does appear that the principle
originated and perhaps was fostered in the realm of Spanish
Thus, Empelis does not compel us that it is an insurmountable given that jurisprudence.
frustrated theft is viable in this jurisdiction. Considering the flawed
reasoning behind its conclusion of frustrated theft, it cannot present any
efficacious argument to persuade us in this case. Insofar
The oft-cited Salvador Viada adopted a question-answer form in his
as Empelis may imply that convictions for frustrated theft are beyond
1926 commentaries on the 1870 Codigo Penal de Espaa. Therein, he
cavil in this jurisdiction, that decision is subject to reassessment.
raised at least three questions for the reader whether the crime of
frustrated or consummated theft had occurred. The passage cited
in Dio was actually utilized by Viada to answer the question whether
V. frustrated or consummated theft was committed [e]l que en el momento
mismo de apoderarse de la cosa ajena, vindose sorprendido, la arroja
al suelo.[83] Even as the answer was as stated in Dio, and was indeed
derived from the 1888 decision of the Supreme Court of Spain, that
Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who
decisions factual predicate occasioning the statement was apparently
was content with replicating the Spanish Supreme Court decisions on
very different from Dio, for it appears that the 1888 decision involved an
the matter, Cuello Caln actually set forth his own thought that questioned
accused who was surprised by the employees of a haberdashery as he
whether theft could truly be frustrated, since pues es muy dificil que el
was abstracting a layer of clothing off a mannequin, and who then
que hace cuanto es necesario para la consumacin del hurto no lo
proceeded to throw away the garment as he fled.[84]
consume efectivamente. Otherwise put, it would be difficult to foresee
how the execution of all the acts necessary for the completion of the
crime would not produce the effect of theft.
Nonetheless, Viada does not contest the notion of frustrated theft, and
willingly recites decisions of the Supreme Court of Spain that have held
to that effect.[85] A few decades later, the esteemed Eugenio Cuello
This divergence of opinion convinces us, at least, that there is no
Caln pointed out the inconsistent application by the Spanish Supreme
weighted force in scholarly thought that obliges us to accept frustrated
Court with respect to frustrated theft.
theft, as proposed in Dio and Flores. A final ruling by the Court that there
is no crime of frustrated theft in this jurisdiction will not lead to scholastic
pariah, for such a submission is hardly heretical in light of Cuello Calns
Hay frustracin cuando los reos fueron sorprendidos por las guardias
position.
cuando llevaban los sacos de harino del carro que los conducia a otro
que tenan preparado, 22 febrero 1913; cuando el resultado no tuvo
efecto por la intervencin de la policia situada en el local donde se realiz
Accordingly, it would not be intellectually disingenuous for the Court to
la sustraccin que impidi pudieran los reos disponer de lo sustrado, 30
look at the question from a fresh perspective, as we are not bound by
de octubre 1950. Hay "por lo menos" frustracin, si existe apoderamiento,
the opinions of the respected Spanish commentators, conflicting as they
pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay
are, to accept that theft is capable of commission in its frustrated stage.
frustracin "muy prxima" cuando el culpable es detenido por el
Further, if we ask the question whether there is a mandate of statute or
perjudicado acto seguido de cometer la sustraccin, 28 febrero 1931.
precedent that must compel us to adopt the Dio and Flores doctrines,
Algunos fallos han considerado la existencia de frustracin cuando,
the answer has to be in the negative. If we did so, it would arise not out
perseguido el culpable o sorprendido en el momento de llevar los
of obeisance to an inexorably higher command, but from the exercise of
efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11
the function of statutory interpretation that comes as part and parcel of
marzo 1921; esta doctrina no es admissible, stos, conforme a lo antes
judicial review, and a function that allows breathing room for a variety of
expuesto, son hurtos consumados.[86]
theorems in competition until one is ultimately adopted by this Court.
V.
Ultimately, Cuello Caln attacked the very idea that frustrated theft is
actually possible:
The foremost predicate that guides us as we explore the matter is that it
lies in the province of the legislature, through statute, to define what
La doctrina hoy generalmente sustentada considera que el hurto se constitutes a particular crime in this jurisdiction. It is the legislature, as
consuma cuando la cosa queda de hecho a la disposicin delagente. Con representatives of the sovereign people, which determines which acts
este criterio coincide la doctrina sentada ltimamente porla jurisprudencia or combination of acts are criminal in nature. Judicial interpretation of
espaola que generalmente considera consumado el hurto cuando el penal laws should be aligned with what was the evident legislative intent,
culpable coge o aprehende la cosa y sta quede por tiempo ms o menos as expressed primarily in the language of the law as it defines the crime.
duradero bajo su poder. El hecho de que ste pueda aprovecharse o no It is Congress, not the courts, which is to define a crime, and ordain its
de lo hurtado es indiferente. El delito no pierde su carcter de consumado punishment.[88] The courts cannot arrogate the power to introduce a
aunque la cosa hurtada sea devuelta por el culpable o fuere new element of a crime which was unintended by the legislature, or
recuperada. No se concibe la frustracin, pues es muy dificil que el que redefine a crime in a manner that does not hew to the statutory
hace cuanto es necesario para la consumacin del hurto no lo consume language. Due respect for the prerogative of Congress in defining
efectivamente, los raros casos que nuestra jurisprudencia, muy crimes/felonies constrains the Court to refrain from a broad
vacilante, declara hurtos frustrados son verdaderos delitos interpretation of penal laws where a narrow interpretation is
consumados.[87] (Emphasis supplied) appropriate. The Court must take heed of language, legislative history
and purpose, in order to strictly determine the wrath and breath of the
conduct the law forbids.[89]
cases of detergent for a considerable period of time that he was able to
drop these off at a spot in the parking lot, and long enough to load these
With that in mind, a problem clearly emerges with the Dio/Flores dictum.
onto a taxicab.
The ability of the offender to freely dispose of the property stolen is not
a constitutive element of the crime of theft. It finds no support or
extension in Article 308, whether as a descriptive or operative element
Indeed, we have, after all, held that unlawful taking, or apoderamiento,
of theft or as the mens rea or actus reus of the felony. To restate what
is deemed complete from the moment the offender gains possession of
this Court has repeatedly held: the elements of the crime of theft as
the thing, even if he has no opportunity to dispose of the same.[92] And
provided for in Article 308 of the Revised Penal Code are: (1) that there
long ago, we asserted in People v. Avila:[93]
be taking of personal property; (2) that said property belongs to another;
(3) that the taking be done with intent to gain; (4) that the taking be done
without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of x x x [T]he most fundamental notion in the crime of theft is the taking of
persons or force upon things.[90] the thing to be appropriated into the physical power of the thief, which
idea is qualified by other conditions, such as that the taking must be
effected animo lucrandi and without the consent of the owner; and it will
be here noted that the definition does not require that the taking should
Such factor runs immaterial to the statutory definition of theft, which is
be effected against the will of the owner but merely that it should be
the taking, with intent to gain, of personal property of another without the
without his consent, a distinction of no slight importance.[94]
latters consent. While the Dio/Flores dictum is considerate to the
mindset of the offender, the statutory definition of theft considers only
the perspective of intent to gain on the part of the offender, compounded
by the deprivation of property on the part of the victim. Insofar as we consider the present question, unlawful taking is most
material in this respect. Unlawful taking, which is the deprivation of ones
personal property, is the element which produces the felony in its
consummated stage. At the same time, without unlawful taking as an act
For the purpose of ascertaining whether theft is susceptible of
of execution, the offense could only be attempted theft, if at all.
commission in the frustrated stage, the question is again, when is the
crime of theft produced? There would be all but certain unanimity in the
position that theft is produced when there is deprivation of personal
property due to its taking by one with intent to gain. Viewed from that With these considerations, we can only conclude that under Article 308
perspective, it is immaterial to the product of the felony that the offender, of the Revised Penal Code, theft cannot have a frustrated stage. Theft
once having committed all the acts of execution for theft, is able or can only be attempted or consummated.
unable to freely dispose of the property stolen since the deprivation from
the owner alone has already ensued from such acts of execution. This
conclusion is reflected in Chief Justice Aquinos commentaries, as earlier Neither Dio nor Flores can convince us otherwise. Both fail to consider
cited, that [i]n theft or robbery the crime is consummated after the that once the offenders therein obtained possession over the stolen
accused had material possession of the thing with intent to appropriate items, the effect of the felony has been produced as there has been
the same, although his act of making use of the thing was frustrated.[91] deprivation of property. The presumed inability of the offenders to freely
dispose of the stolen property does not negate the fact that the owners
have already been deprived of their right to possession upon the
It might be argued, that the ability of the offender to freely dispose of the completion of the taking.
property stolen delves into the concept of taking itself, in that there could
be no true taking until the actor obtains such degree of control over the
stolen item. But even if this were correct, the effect would be to Moreover, as is evident in this case, the adoption of the rule that the
downgrade the crime to its attempted, and not frustrated stage, for it inability of the offender to freely dispose of the stolen property frustrates
would mean that not all the acts of execution have not been completed, the theft would introduce a convenient defense for the accused which
the taking not having been accomplished. Perhaps this point could serve does not reflect any legislated intent,[95]since the Court would have
as fertile ground for future discussion, but our concern now is whether carved a viable means for offenders to seek a mitigated penalty under
there is indeed a crime of frustrated theft, and such consideration proves applied circumstances that do not admit of easy classification. It is
ultimately immaterial to that question. Moreover, such issue will not difficult to formulate definite standards as to when a stolen item is
apply to the facts of this particular case. We are satisfied beyond susceptible to free disposal by the thief. Would this depend on the
reasonable doubt that the taking by the petitioner was completed in this psychological belief of the offender at the time of the commission of the
case. With intent to gain, he acquired physical possession of the stolen crime, as implied in Dio?
theft under the Revised Penal Code does not detract from the
correctness of this conclusion. It will take considerable amendments to
our Revised Penal Code in order that frustrated theft may be recognized.
Our deference to Viada yields to the higher reverence for legislative
intent.
of the property, the number and identity of people present at the scene
of the crime, the number and identity of people whom the offender is
expected to encounter upon fleeing with the stolen property, the manner SO ORDERED.
in which the stolen item had been housed or stored; and quite frankly, a
whole lot more. Even the fungibility or edibility of the stolen item would
come into account, relevant as that would be on whether such property
is capable of free disposal at any stage, even after the taking has been
consummated.
All these complications will make us lose sight of the fact that beneath
all the colorful detail, the owner was indeed deprived of property by one
who intended to produce such deprivation for reasons of gain. For such
will remain the presumed fact if frustrated theft were recognized, for
therein, all of the acts of execution, including the taking, have been
completed. If the facts establish the non-completion of the taking due to
these peculiar circumstances, the effect could be to downgrade the
crime to the attempted stage, as not all of the acts of execution have
been performed. But once all these acts have been executed, the taking
has been completed, causing the unlawful deprivation of property, and
ultimately the consummation of the theft.
We thus conclude that under the Revised Penal Code, there is no crime
of frustrated theft. As petitioner has latched the success of his appeal on
our acceptance of the Dio and Flores rulings, his petition must be
denied, for we decline to adopt said rulings in our jurisdiction. That it has
taken all these years for us to recognize that there can be no frustrated
G.R. No. L-43530 August 3, 1935 Thus, in case of robbery, in order that the simple act of entering by
means of force or violence another person's dwelling may be considered
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, an attempt to commit this offense, it must be shown that the offender
vs. clearly intended to take possession, for the purpose of gain, of some
AURELIO LAMAHANG, defendant-appellant. personal property belonging to another. In the instant case, there is
nothing in the record from which such purpose of the accused may
Honesto K. Bausa for appellant. reasonably be inferred. From the fact established and stated in the
Office of the Solicitor-General Hilado for appellee. decision, that the accused on the day in question was making an
opening by means of an iron bar on the wall of Tan Yu's store, it may
RECTO, J.: only be inferred as a logical conclusion that his evident intention was to
enter by means of force said store against the will of its owner. That his
The defendant Aurelio Lamahang is before this court on appeal from a final objective, once he succeeded in entering the store, was to rob, to
decision of the Court of First Instance of Iloilo, finding him guilty of cause physical injury to the inmates, or to commit any other offense,
attempted robbery and sentencing him to suffer two years and four there is nothing in the record to justify a concrete finding.1avvphil.et
months of prision correccional and to an additional penalty of ten years
and one day of prision mayor for being an habitual delinquent, with the It must be borne in mind (I Groizard, p. 99) that in offenses not
accessory penalties of the law, and to pay the costs of the proceeding. consummated, as the material damage is wanting, the nature
of the action intended (accion fin) cannot exactly be
At early dawn on March 2, 1935, policeman Jose Tomambing, who was ascertained, but the same must be inferred from the nature of
patrolling his beat on Delgado and C.R. Fuentes streets of the City of the acts executed (accion medio). Hence, the necessity that
Iloilo, caught the accused in the act of making an opening with an iron these acts be such that by their very nature, by the facts to
bar on the wall of a store of cheap goods located on the last named which they are related, by the circumstances of the persons
street. At that time the owner of the store, Tan Yu, was sleeping inside performing the same, and by the things connected therewith,
with another Chinaman. The accused had only succeeded in breaking they must show without any doubt, that they are aimed at the
one board and in unfastening another from the wall, when the policeman consummation of a crime. Acts susceptible of double
showed up, who instantly arrested him and placed him under custody. interpretation , that is, in favor as well as against the culprit,
and which show an innocent as well as a punishable act, must
The fact above stated was considered and declared unanimously by the not and can not furnish grounds by themselves for attempted
provincial fiscal of Iloilo, the trial judge and the Solicitor-General, as nor frustrated crimes. The relation existing between the facts
constituting attempted robbery, which we think is erroneous. submitted for appreciation and the offense which said facts
are supposed to produce must be direct; the intention must be
It is our opinion that the attempt to commit an offense which the Penal ascertained from the facts and therefore it is necessary, in
Code punishes is that which has a logical relation to a particular, order to avoid regrettable instances of injustice, that the mind
concrete offense; that, which is the beginning of the execution of the be able to directly infer from them the intention of the
offense by overt acts of the perpetrator, leading directly to its realization perpetrator to cause a particular injury. This must have been
and consummation. The attempt to commit an indeterminate offense, the intention of the legislator in requiring that in order for an
inasmuch as its nature in relation to its objective is ambiguous, is not a attempt to exist, the offender must commence the commission
juridical fact from the standpoint of the Penal Code. There is no doubt of the felony directly by overt acts, that is to say, that the acts
that in the case at bar it was the intention of the accused to enter Tan performed must be such that, without the intent to commit an
Yu's store by means of violence, passing through the opening which he offense, they would be meaningless.
had started to make on the wall, in order to commit an offense which,
due to the timely arrival of policeman Tomambing, did not develop Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt
beyond the first steps of its execution. But it is not sufficient, for the acts leading to the commission of the offense, are not punished except
purpose of imposing penal sanction, that an act objectively performed when they are aimed directly to its execution, and therefore they must
constitute a mere beginning of execution; it is necessary to establish its have an immediate and necessary relation to the offense."
unavoidable connection, like the logical and natural relation of the cause
and its effect, with the deed which, upon its consummation, will develop Considering says the Supreme Court of Spain in its
into one of the offenses defined and punished by the Code; it is decision of March 21, 1892 that in order to declare that
necessary to prove that said beginning of execution, if carried to its such and such overt acts constitute an attempted offense it is
complete termination following its natural course, without being necessary that their objective be known and established, or
frustrated by external obstacles nor by the voluntary desistance of the that said acts be of such nature that they themselves should
perpetrator, will logically and necessarily ripen into a concrete offense. obviously disclose the criminal objective necessarily intended,
said objective and finality to serve as ground for the
designation of the offense: . . . .
In view of the foregoing, we are of the opinion, and so hold that the fact
under consideration does not constitute attempted robbery but
attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil.,
606, and decisions of the Supreme Court of Spain therein cited). Under
article 280 of the Revised Penal Code, this offense is committed when
a private person shall enter the dwelling of another against the latter's
will. The accused may be convicted and sentenced for an attempt to
commit this offense in accordance with the evidence and the following
allegation contained in the information: "... the accused armed with an
iron bar forced the wall of said store by breaking a board and unfastening
another for the purpose of entering said store ... and that the accused
did not succeed in entering the store due to the presence of the
policeman on beat Jose Tomambing, who upon hearing the noise
produced by the breaking of the wall, promptly approached the accused
... ." Under the circumstances of this case the prohibition of the owner
or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31
Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615;
U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against
the accused must be taken into consideration the aggravating
circumstances of nighttime and former convictions, inasmuch as the
G.R. No. 33463 December 18, 1930
record shows that several final judgments for robbery and theft have
been rendered against him and in his favor, the mitigating
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
circumstance of lack of instruction. The breaking of the wall should not
vs.
be taken into consideration as an aggravating circumstance inasmuch
BASILIO BORINAGA, defendant-appellant.
as this is the very fact which in this case constitutes the offense of
attempted trespass to dwelling.
Paulo Jaro for appellant.
Attorney-General Jaranilla for appellee.
The penalty provided by the Revised Penal Code for the consummated
offense of trespass to dwelling, if committed with force, is prision
correccional in its medium and maximum periods and a fine not
exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding
MALCOM, J.:
to attempted trespass to dwelling is to degrees lower (art. 51), or, arresto
mayor in its minimum and medium periods. Because of the presence of
Sometime prior to March 4, 1929, an American by the name of Harry H.
two aggravating circumstances and one mitigating circumstance the
Mooney, a resident of the municipality of Calubian, Leyte, contracted
penalty must be imposed in its maximum period. Pursuant to article 29
with one Juan Lawaan for the construction of a fish corral. Basilio
of the same Code, the accused is not entitled to credit for one-half of his
Borinaga was associated with Lawaan in the construction of the corral.
preventive imprisonment.
On the morning of March 4, 1929, Lawaan, with some of his men, went
to Mooney's shop and tried to collect from him the whole amount fixed
Wherefore, the sentence appealed from is revoked and the accused is
by the contract, notwithstanding that only about two-thirds of the fish
hereby held guilty of attempted trespass to dwelling, committed by
corral had been finished. As was to be expected, Mooney refused to pay
means of force, with the aforesaid aggravating and mitigating
the price agreed upon at that time. On hearing this reply of Mooney,
circumstances and sentenced to three months and one day of arresto
Lawaan warned him that if he did not pay, something would happen to
mayor, with the accessory penalties thereof and to pay the costs.
him, to which Mooney answered that if they wanted to do something to
him they should wait until after breakfast, Lawaan then left with his men,
Avancea, C.J., Abad Santos, Hull, and Vickers, JJ., concur.
and Mooney, after partaking of his morning meal, returned to his shop.
On the evening of the same day, Mooney was in the store of a neighbor
by the name of Perpetua Najarro. He had taken a seat on a chair in front
of the Perpetua, his back being to the window. Mooney had not been No superfine distinctions need be drawn in favor of that accused to
there long when Perpetua saw Basilio Borinaga from the window strike establish a lesser crime than that of frustrated murder, for the facts
with a knife at Mooney, but fortunately for the latter, the knife lodged in disclose a wanton disregard of the sanctity of human life fully meriting
the back of the chair on which Mooney was seated. Mooney fell from the the penalty imposed in the trial court.
chair as a result of the force of the blow, but was not injured. Borinaga
ran away towards the market place. Before this occurred, it should be Based on foregoing considerations, the judgment appealed from will be
stated that Borinaga had been heard to tell a companion: "I will stab this affirmed, with the costs of this instance against the appellant.
Mooney, who is an American brute." After the attack, Borinaga was also
heard to say that he did not hit the back of Mooney but only the back of Avancea, C.J., Villamor, Ostrand, Johns and Romualdez, JJ.,
the chair. But Borinaga was persistent in his endeavor, and hardly ten concur.lawphi1>net
minutes after the first attack, he returned, knife in hand, to renew it, but
was unable to do so because Mooney and Perpetua were then on their
guard and turned a flashlight on Borinaga, frightening him away. Again
the same night, Borinaga was overheard stating that he had missed his
mark and was unable to give another blow because of the flashlight. The
point of the knife was subsequently, on examination of the chair, found
embedded in it.
Separate Opinions
The foregoing occurrences gave rise to the prosecution of Basilio
Borinaga in the Court of First Instance of Leyte for the crime of frustrated
murder. The defense was alibi, which was not given credence. The
accused was convicted as charged, by Judge Ortiz, who sentenced him VILLA-REAL, J., dissenting:
to fourteen years, eight months, and one day of imprisonment, reclusion
temporal, with the accessory penalties and the costs. We dissent from the opinion of the majority in so far as it finds the
defendant-appellant guilty of the crime of frustrated murder instead of
The homicidal intent of the accused was plainly evidenced. The that of an attempt to commit murder.
attendant circumstances conclusively establish that murder was in the
heart and mind of the accused. More than mere menaces took place. Article 3 of the Penal Code provides as follows:
The aggressor stated his purpose, which was to kill, and apologized to
his friends for not accomplishing that purpose. A deadly weapon was ART. 3. Frustrated felonies and attempts to commit felonies
used. The blow was directed treacherously toward vital organs of the are punishable, as well as those which are consummated.
victim. The means used were entirely suitable for accomplishment. The
crime should, therefore, be qualified as murder because of the presence A felony is frustrated when the offender performs all the acts
of the circumstance of treachery. of execution which should produce the felony as a
consequence, but which, nevertheless, do no produce it by
The only debatable question, not referred to in the briefs, but which must reason of causes independent of the will of the perpetrator.
be decided in order to dispose of the appeal, is: Do the facts constitute
frustrated murder or attempted murder within the meaning of article 3 of There is an attempt when the offender commences the
the Penal Code? Although no exact counterpart to the facts at bar has commission of the felony directly by overt acts, and does not
been found either in Spanish or Philippine jurisprudence, a majority of perform all the acts of execution which constitute the felony
the court answer the question propounded by stating that the crime by reason of some cause or accident other than his own
committed was that of frustrated murder. This is true notwithstanding the voluntary desistance.
admitted fact that Mooney was not injured in the least.
The pertinent facts as found by the court below and by this court are the
The essential condition of a frustrated crime, that the author perform all following:
the acts of execution, attended the attack. Nothing remained to be done
to accomplish the work of the assailant completely. The cause resulting On the evening of the same day, Mooney was in the store of a neighbor
in the failure of the attack arose by reason of forces independent of the by the name of Perpetua Najarro. He had taken a seat on a chair in front
will of the perpetrator. The assailant voluntarily desisted from further of Perpetua, his back being to the window. Mooney had not been there
acts. What is known as the subjective phase of the criminal act was long when Perpetua saw Basilio Borinaga from the window strike with a
passed. (U. S. vs. Eduave [1917], 36 Phil., 209; People vs. Mabugat knife at Mooney, but fortunately for the latter, the knife lodged in the back
[1926], 51 Phil., 967.) of the chair on which Mooney was seated. Mooney fell from the chair as
a result of the force of the blow, but was not injured. Borinaga ran away frustrated felony, according to the law, and not the preventing of the
towards the market place. Before this occurred, it should be stated that performance of all the acts of execution which constitute the felony, as
Borinaga had been heard to tell a companion: "I will stab this Mooney, in the present case. The interference of the frame of the back of the chair
who is an American brute." After the attack, Borinaga was also heard to which prevented the defendant-appellant from wounding Mooney in the
say that he did not hit the back of Mooney but only the back of the chair. back with a deadly knife, made his acts constitute an attempt to commit
But Borinaga was persistent in his endeavor, and hardly ten minutes murder; for he had commenced the commission of the felony directly by
after the first attack, he returned, knife in hand, to renew it, but was overt acts, and did not perform all the acts of execution which constitute
unable to do so because Mooney and Perpetua were then on their guard the felony by reason of a cause or accident other than his own voluntary
and turned a flashlight on Borinaga, frightening him away. Again that desistance.
same night, Borinaga was overheard stating that he had missed his
mark and was unable to give another blow because of the flashlight. The The foregoing considerations force us to the conclusion that the facts
point of the knife was subsequently, on examination of the chair, found alleged in the information and proved during the trial are not sufficient to
embedded in it. constitute the crime of frustrated murder, but simply the crime of an
attempt to commit murder.
Since the facts constituting frustrated felony and those constituting an
attempt to commit felony are integral parts of those constituting Johnson and Street, JJ., concur.
consummated felony, it becomes important to know what facts would
have been necessary in order that the case at bar might have been a
consummated murder, so that we may determine whether the facts
proved during the trial constitute frustrated murder or simply an attempt
to commit murder.
It is true that the frame of the back of the chair stood between the deadly
knife and the back of Mooney; but what it prevented was the wounding
of said Mooney in the back and not his death, had he been wounded. It
is the preventing of death by causes independent of the will of the
perpetrator, after all the acts of execution which should produce the
felony as a consequence had been performed, that constitutes
Meynardo M. Farol and Feliciano Gomez for appellants.
Acting Solicitor-General Pea for appellee.
DIAZ, J.:
In the third case, that is, No. 6860, wherein the court a quo held that the
crime committed was simply that of discharge of firearm, not frustrated
murder, the appellant Marcelo Kalalo was sentenced to one year, eight
months and twenty-one days of prision correccional and to pay the
proportionate part of the costs of the proceedings. Felipe Kalalo and
Juan Kalalo, as well as their co-accused Fausta and Alipia Abrenica,
Gregorio Ramos and Alejandro Garcia, were acquitted of the charges
therein.
The accused in the aforesaid three cases appealed from their respective
sentences assigning six alleged errors as committed by the trial court,
all of which may be discussed jointly in view of the fact that they raise
only one question, to wit: whether or not said sentences are in
accordance with law.
1. A cut wound on the ulnar side of right arm near the wrist, 8. A cut wound about 6 cm. long and 2 cm. wide situated over
cutting the ulnar bone completely and, the radius partially. the left scapula.
2. A cut wound on the anterior upper portion of the left arm 9. A cut wound on the right shoulder about 6 cm. long passing
measuring about 7 cm. long and 5 cm. wide extending to the near the inner angle of the scapula cutting the muscles of the
bone and cutting the deltoid muscle across. shoulder.
10. A cut wound about 7 cm. long and 3 cm. wide situated jointly with them, had gone to the place of the crime armed with bolos,
near and almost parallel to the inner border of the right determined at any cost to prevent the Holgados from plowing the land in
scapula. dispute, cannot but disclose not only their determination to resort to
violence or something worse, but that they did not need any provocation
11. A wound on the back of the head, oval in shape, about 10 in order to carry out their intent.
cm. long and 5 cm. wide from which a flap of scalp was
removed. They likewise attempted to prove that the appellant Marcelo Kalalo alone
fought against the deceased Marcelino Panaligan and Arcadio Holgado
12. A wound across the back and left side of the neck about and inflicted upon them the wounds which resulted in their death, said
12 cm. long and 7 cm. deep cutting the vertebral column appellant testifying that he was compelled to do so in defense of his own
together with the great arteries and veins on the left side of life because both of the deceased attacked him first, the former with a
the neck. revolver, firing three shots at him, and the latter with a bolo. For the same
reasons hereinbefore stated, such defense of the appellants cannot be
13. A wound about 15 cm. long and 4 cm. wide on the left side given credit. One man alone could not have inflicted on the two
of the back. deceased their multiple wounds, particularly when it is borne in mind that
one of them was better armed, because he carried a revolver, and that
14. A small wound on the left thumb from which a portion of he was furthermore an expert shot and scarcely two arm-lengths from
the bone and other tissues were removed. (Exhibit H.) Kalalo, according to the latter's own testimony. The two witnesses for
the defense, who witnessed the crime very closely, refuted such
The above detailed description of the wounds just enumerated discloses allegation saying that Marcelo Kalalo alone fought the deceased Arcadio
and there is nothing of record to contradict it all of them were caused Holgado and that the other three appellants went after the other
by a sharp instrument or instruments. deceased. It is true that Arcadio Holgado also used his bolo to defend
himself from Marcelo Kalalo's aggression but it is no less true that five
After Arcadio Holgado and Marcelino Panaligan had fallen to the ground of the principal wounds of the other deceased Marcelino Panaligan were
dead, the appellant Marcelo Kalalo took from its holster on the belt of inflicted on him from behind, inasmuch as according to Exhibit H they
Panaligans' body, the revolver which the deceased carried, and fired were all found at the back of the head, on the neck and on his back.
four shots at Hilarion Holgado who was then fleeing from the scene Neither is it less true that all the wounds of the appellant Marcelo Kalalo
inorder to save his own life. were inflicted on him from the front, which fact shows that it was not he
alone who inflicted the wounds on the two deceased because had he
The appellants attempted to prove that the fight, which resulted in the been alone Panaligan would not have exposed his back to be thus
death of the two deceased, was provoked by Marcelino Panaligan who attacked from behind, inasmuch as he was armed with a revolver, which
fired a shot at Marcelo Kalalo upon seeing the latter's determination to circumstance undoubtedly allowed him to keep at a distance from
prevent Arcadio Holgado and his men from plowing the land in question. Kalalo; and in connection with the testimony of Isabela Holgado and
No such firing, however, can be taken into consideration, in the first Maria Gutierrez, said circumstance shows furthermore that the three
place, because of the existence of competent evidence such as the appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos attacked
testimony of Maria Gutierrez, who is a disinterested witness, which said Panaligan with their respective bolos at the same time that Marcelo
corroborates that of Isabela Holgado in all its details, showing that the Kalalo attacked Arcadio Holgado, in order that all might act
said deceased was already lying prostrate and lifeless on the ground simultaneously in conformity with the common intent of the four and of
when the appellant Marcelo Kalalo approached him to take his revolver their coaccused to eliminate through violence and at any cost, without
for the purpose of using it, as he in fact did, against Hilarion Holgado; in much risk to them, all those who wanted to plow the land which was the
the second place, because the assault and aggression of the said cause of the dispute between the two parties. And it is not strange that
appellant were not directed against said Marcelino Panaligan but the three appellants, who inflicted the wounds upon Marcelino
exclusively against Arcadio Holgado, the evidence of record on this point Panaligan, should act as they did, because they knew that the latter
being overwhelming, and if his claim were true, he naturally should have carried a revolver in a holster on his belt.
directed his attack at the person who openly made an attempt against
his life; in the third place, because the evidence shows without question Although it may seem a repetition or redundancy, it should be stated that
that Panaligan was an expert shot with a revolver, and among the eight Marcelo Kalalo's allegation that he acted in self-defense is absolutely
wounds that the appellant Marcelo Kalalo received (Exhibit 3), not one unfounded on the ground that, were it true that the deceased Marcelino
appears to have been caused by bullet, and similarly, none of the other Panaligan succeeded in using his revolver, he would have wounded if
appellants received any wound that might, in any way, suggest the not the said appellant, at least the other appellants.
possibility of having been caused by bullet; and finally, because the fact
that he and his co-appellants, together with those who had been charged
The trial court has acted correctly in not giving credit to the testimony of they are guilty of simple homicide but with the aggravating circumstance
the appellants Juan and Felipe Kalalo and Gregorio Ramos that they of abuse of superior strength.
proceeded to the scene of the crime completely unarmed, with the
exception that one of them had a brush in his hand and the other a plane, It is true that under article 248 of the Revised Penal Code, which defines
after Marcelino Panaligan and Arcadio Holgado had already expired, murder, the circumstance of "abuse of superior strength", if proven to
which is incredible and improbable under the circumstances, knowing, have been presented, raises homicide to the category of murder; but this
as in fact they then knew, that their brother Marcelo Kalalo had been court is of the opinion that said circumstance may not properly be taken
attacked by armed men. This court cannot help but agree with the into consideration in the two cases at bar, either as a qualifying or as a
decision of the lower court where it states: generic circumstance, if it is borne in mind that the deceased were also
armed, one of them with a bolo, and the other with a revolver. The risk
It is improbable that after having been informed that their was even for the contending parties and their strength was almost
brother was engaged in a fight, they went to the scene of the balanced because there is no doubt but that, under circumstances
crime, one merely armed with a plane and the other with a similar to those of the present case, a revolver is as effective as, if not
brush. It is improbable that Felipe Kalalo also went to that more than three bolos. For this reason, this court is of the opinion that
place simply to follow Juan Kalalo and Gregorio Ramos upon the acts established in cases Nos. 6858 and 6859 (G.R. Nos. L-39303
seeing them run unarmed in that direction. These and 39304, respectively), merely constitute two homicides, with no
improbabilities of the defenses of the accused, in the face of modifying circumstance to be taken into consideration because none
the positive and clear testimony of the eyewitnesses pointing has been proved.
to the said accused as the aggressors of the deceased
Marcelino Panaligan and Arcadio Holgado, cannot, of course, As to case No. 6860 (G.R. No. 39305), the evidence shows that Marcelo
prevail against nor detract from the weight of the evidence of Kalalo fired four successive shots at Hilarion Holgado while the latter
the prosecution, particularly taking into consideration the was fleeing from the scene of the crime in order to be out of reach of the
numerous wounds of each of the deceased and the positions appellants and their companions and save his own life. The fact that the
thereof, which show that the said deceased were attacked by said appellant, not having contended himself with firing only once, fired
several persons and that those several persons were the said successive shots at Hilarion Holgado, added to the circumstance
defendants. Furthermore, the established fact that after the that immediately before doing so he and his co-appellants had already
commission of the crime the said defendants had been in killed Arcadio Holgado and Marcelino Panaligan, cousin and brother-in-
hiding in order to avoid arrest, is corroborative evidence of law, respectively, of the former, shows that he was then bent on killing
their guilt. said Hilarion Holgado. He performed everything necessary on his pat to
commit the crime that he determined to commit but he failed by reason
It certainly is a fact of record that the said three appellants Felipe Kalalo, of causes independent of his will, either because of his poor aim or
Juan Kalalo and Gregorio Ramos were not arrested until after several because his intended victim succeeded in dodging the shots, none of
days, because they had been hiding or, at least, absenting themselves which found its mark. The acts thus committed by the said appellant
from their homes. Marcelo Kalalo constitute attempted homicide with no modifying
circumstance to be taken into consideration, because none has been
That the four appellants should all be held liable for the death of the two established.
deceased leaves no room for doubt. All of them, in going to the land
where the killing took place, were actuated by the same motive which Wherefore, the three appealed sentences are hereby modified as
was to get rid of all those who might insist on plowing the land which follows:
they believed belonged to one of them, that is, to Marcelo Kalalo, a fact
naturally inferable from the circumstance that all of them went there fully In case No. 6858, or G.R. No. 39303, the court finds that the crime
armed and that they simultaneously acted after they had been instigated committed by the appellants is homicide and they hereby sentenced to
by their mother with the words hereinbefore stated, to wit: "What is fourteen years, eight months and one day of reclusion temporal each, to
detaining you?" jointly and severally indemnify the heirs of Marcelino Panaligan in the
sum of P1,000 and to pay the proportionate part of the costs of the
The question now to be decided is whether the appellants are guilty of proceedings of both instances; and by virtue of the provisions of Act No.
murder or of simple homicide in each of cases G.R. No. L-39303 and 4103, the minimum of the said penalty of reclusion temporal is hereby
G.R. No. L-39304. The Attorney-General maintains that they are guilty fixed at nine years;
of murder in view of the presence of the qualifying circumstance of
abuse of superior strength in the commission of the acts to which the In case No. 6859, or G.R. No. 39304, the court likewise finds that the
said two cases particularly refer. The trial court was of the opinion that crime committed by the appellants is homicide, and they are hereby
sentenced to fourteen years, eight months and one day of reclusion
temporal each, to jointly and severally indemnify the heirs of Arcadio
Holgado in the sum of P1,000 and to pay the proportionate part of the
costs of both instances; and in conformity with the provisions of Act No.
4103, the minimum of the penalty of reclusion temporal herein imposed
upon them is hereby fixed at nine years;
In case No. 6860, or G.R. No. 39305, the court finds that the crime
committed by the appellant Marcelo Kalalo is attempted homicide, and
he is hereby sentenced to two years, four months and one day of prision
correccional, it being understood that by virtue of the provisions of said
Act No. 4103, the minimum of this penalty is six months, and he is
furthermore sentenced to pay the costs of the appeal in this case.
In all other respects, the appealed sentences in the said three cases are
hereby affirmed without prejudice to crediting the appellants therein with
one-half of the time during which they have undergone preventive
imprisonment, in accordance with article 29 of the Revised Penal Code.
So ordered.
While at Buenavista, accused Emeliano TRINIDAD, a member of the Continuing, TRINIDAD claimed that he left Cagayan de Oro for Butuan
Integrated National Police, assigned at Nasipit Police Station, and at lunch time on 21 January 1983 arriving at the latter place around 6:00
residing at Baan, Butuan City, asked for a ride to Bayugan, Agusan del P.M., and went to his house directly to get his service carbine. He was
Sur, which is on the way to Davao City. TRINIDAD was in uniform and on his way to Nasipit to report for duty on 21 January 1983 when he was
had two firearms, a carbine, and the other, a side-arm .38 caliber arrested at around 6:00 P.M. at Buenavista, Agusan del Norte.
revolver. SORIANO, LAROA, TAN, and TRINIDAD then left Butuan on
20 January 1983 at about 5:20 P.M. bound for Davao City. TAN was After joint trial on the merits and unimpressed by the defense by the Trial
driving the Fiera. Seated to his right was SORIANO, LAROA and the Court** sentenced the accused in an "Omnibus Decision", thus:
accused TRINIDAD, in that order. When they reached the stretch
between El Rio and Afga, TRINIDAD advised them to drive slowly WHEREFORE PREMISES CONSIDERED, this
because, according to him, the place was dangerous. All of a sudden, Court finds Emeliano Trinidad GUILTY beyond
TAN heard two gunshots. SORIANO and LAROA slumped dead. TAN reasonable doubt of the crimes of Murder and
did not actually see the shooting of LAROA but he witnessed the Frustrated Murder.
shooting of SORIANO having been alerted by the sound of the first
gunfire. Both were hit on the head. TRINIDAD had used his carbine in In the Frustrated Murder, there being no mitigating
killing the two victims. circumstance, and taking into account the
provisions of the Indeterminate Sentence Law,
TAN then hurriedly got off the Fiera, ran towards the direction of Butuan accused Trinidad is meted out a penalty of:
City and hid himself in the bushes. The Fiera was still running slowly
then but after about seven (7) to ten (10) meters it came to a halt after 1) 8 years and 1 day to 12 years of prision
hitting the muddy side of the road. TAN heard a shot emanating from the mayor medium;
Fiera while he was hiding in the bushes.
2) to indemnify the complainant the amount of P
After about twenty (20) to thirty (30) minutes, when a passenger jeep 5,000.00; and
passed by, TAN hailed it and rode on the front seat. After a short interval
of time, he noticed that TRINIDAD was seated at the back. Apparently 3) to pay the costs.
noticing TAN as well, TRINIDAD ordered him to get out and to approach
him (TRINIDAD) but, instead, TAN moved backward and ran around the Likewise, in the two murder cases, Trinidad is
jeep followed by TRINIDAD. When the jeep started to drive away, TAN accordingly sentenced:
1) to a penalty of Reclusion Perpetua in each case; Q Now,
what time
2) to indemnify the heirs of Marcial Laroa and Lolito did you
Soriano the amount of P30,000.00 each; and leave for
Buenavist
3) to pay the cost. (p. 14, RTC Decision, p. 28, a from
Rollo). Langihan
?
Before us now, TRINIDAD claims that the Trial Court erred in giving full
faith and credit to TAN's testimony who, TRINIDAD alleges, was an A It was
unreliable witness. That is not so. more or
less at
We find no variance in the statement made by TAN before the 6:00 to
NAPOLCOM Hearing Officer that when TRINIDAD boarded the Fiera in 7:00
Buenavista, he (TAN) was not in the vehicle, and that made in open o'clock.
Court when he said that he was with TRINIDAD going to Butuan City on
board the Fiera. For the facts disclose that when TRINIDAD boarded the Q You
Fiera in Buenavista, TAN was still in Langihan distributing fish. The Fiera were
left for Buenavista, driven by SORIANO between 6:00 to 7:00 A.M., riding the
while TAN followed only at 11:00, A.M. in another vehicle. So that when fish car
TRINIDAD boarded the Fiera in Buenavista, TAN was not yet in that which you
vehicle although on the return trip from Butuan City to Davao City, TAN said?
was already on board. In fact, TAN was the one driving. TAN's testimony
clarifying this point reads: A I was
not able
Q Did you to take
not say in the fish
your car in
direct going to
examinati Buenavist
on that a
you went because
to they left
Buenavist me fishes
a, Agusan to be
del dispatche
Norte? d yet.
A We Q In other
were in words,
Langihan you did
and since not go to
our fishes Buenavist
were not a on
consume January
d there, 20, 1983?
we went
to A I was
Buenavist able to go
a. to
Buenavist
a after the
fishes A Lolito
were Soriano
consume and
d. Marcia
Laroa
Q What with his
time did helper.
you go to
Buenavist xxxxxx
a?
Q Now,
A It was when this
more or fish car
less from returned
11:00 to Butuan
o'clock City who
noon. drove it?
Q What A Lolito
transport Soriano.
ation did
you take? Q Were
you with
A I just the fish
took a car in
ride with going
another back to
fish car Langihan
because ?
they were
also going A Yes, sir.
to (T.S.N.,
dispatch Decembe
fishes in r 6, 1985,
Buenavist pp. 53-
a. 54).
Q Now, Felimon Comendador, also a fish vendor, and a resident of Butuan City,
who then testified that he saw TRINIDAD riding in the Fiera on the front seat in the
went to company of TAN, SORIANO and LAROA, when the Fiera stopped by
Buenavist his house at Butuan City (TSN, November 5, 1985, pp. 32-33).
a with the
fish car at The other inconsistencies TRINIDAD makes much of, such as, that TAN
about was unsure before the NAPOLCOM Hearing Officer whether TRINIDAD
7:00 was wearing khaki or fatigue uniform but, in open Court, he testified
o'clock in positively that TRINIDAD was in khaki uniform; and that while TAN
the declared that TRINIDAD was wearing a cap, prosecution witness
morning Felimon Comendador said that he was not but was in complete fatigue
of uniform, are actually trivial details that do not affect the positive
January identification of TRINIDAD that TAN has made nor detract from the
20, 1983? latter's overall credibility.
Nor is there basis for TRINIDAD to contend that the absence of Trinidad,
gunpowder burns on the deceased victims negates TAN's claim that sir.
they were shot "point-blank." Actually, this term refers merely to the "aim
directed straight toward a target" (Webster's Third New International Q Are you
Dictionary) and has no reference to the distance between the gun and referring
the target. And in point of fact, it matters not how far the assailant was to
at the time he shot the victims, the crucial factor being whether he did accused
shoot the victim or not. Emeliano
Trinidad
TRINIDAD's defense of alibi is inherently weak and cannot prevail over whom you
the straightforward and detailed descriptive narration of TAN, thus: pointed to
the court
Q Now, awhile
from ago?
Butuan
City, A Yes, sir.
where did
you Q Will you
proceed? tell the
Court how
A We did
proceede Emeliano
d to Trinidad
Davao. holdup
you?
Q Did you
in fact A When
reach we reach
Davao on between
that date? El Rio and
Afga,
A No, sir. Trinidad
advised
Q Could us to run
you tell slowly
the Court because
why you this place
failed to is
reach dangerou
Davao? s. Then
suddenly
A there
Because were two
we were gun
held-up. bursts.
Q Who Q Now,
held-up you heard
you? two gun
bursts.
A What
Emeliano happened
? What Laroa but
did you since I
see if was
there was already
any? alerted by
the first
A I have burst, I
found out have
that Lolito seen that
Soriano it was
and Trinidad
Marcial who shot
Laroa Soriano.
already
fall. Q What
was the
Q Fall firearm
dead? used?
A They A
were Carbine,
dead sir.
because
they were xxxxxx
hit at the
head. Q Now,
after you
Q You saw that
mean to the two
inform the fell dead,
Court that what did
these two you do?
died
because A I got out
of that from the
gun shot Ford
bursts? Fiera
while it
A Yes, sir. was
running.
Q Did you
actually xxxxxx
see
Trinidad Q From
shooting the place
the two? where
you were
A I did not because
see that it you said
was really you ran,
Trinidad what
who shot
transpired go back to
next? Butuan,
Then, I
A I hid boarded
myself at the jeep
the side of and sat at
the jeep, the front
at the seat but I
bushes. found out
that
Q While Emeliano
hiding Trinidad
yourself was at the
at the back seat.
bushes,
what Q When
transpired you found
? out that
Trinidad
A I heard was at the
one gun back,
burst. what
happened
Q From ?
what
direction A He
was that ordered
gun me to get
bursts out.
you
heard? Q Now,
when you
A From got down,
the Ford what
Fiera, sir. happened
?
Q After
that, what A When I
happened got out
? from the
jeep,
A At Trinidad
around 20 also got
to 30 out.
minutes, I
moved Q Tell the
out from Court,
the place what
where I happened
hid myself after you
because I and
wanted to Trinidad
got out A The
from the driver
jeep? drove the
jeep.
A He
called me Q Now,
because after that,
he what did
wanted you do?
me to get
near him. A I ran
after the
Q What jeep and
did you then I was
do? able to
take the
A I moved jeep at
backward the side of
. it.
A No, sir. But while the circumstances do spell out the two crimes of Murder, the
penalty will have to be modified. For, with the abolition of capital
Q Now, punishment in the 1987 Constitution, the penalty for Murder is
when you now reclusion temporal in its maximum period to reclusion
have perpetua (People vs. Lopez, et al. G.R. No. 71876-76, January 25, 1988
notice citing People vs. Gavarra, No. L-37673, October 30, 1987; People vs.
that you Masangkay, G.R. No. 73461, October 27, 1987). With no attending
were hit, mitigating or aggravating circumstance, said penalty is imposable in its
what did medium period or from eighteen (18) years, eight (8) months and one
you do? (1) day to twenty (20) years. The penalty next lower in degree for
purposes of the Indeterminate Sentence Law is prision mayor,
A At the maximum, to reclusion temporal, medium, or from ten (10) years and
first jeep one (1) day to seventeen (17) years and four (4) months (Article 61,
that I took parag. 3, Revised Penal Code).
I was hit,
so I got WHEREFORE, the guilt of the accused Emeliano Trinidad for the crimes
out from it of Murder (on two counts) and Attempted Murder, having been proven
beyond reasonable doubt, his conviction is hereby AFFIRMED and he COURT OF APPEALS and PEOPLE OF THE
is hereby sentenced as follows: PHILIPPINES, Respondents.
For her part, Elvisa also filed a complaint against the spouses Martinez
in the MCTC of Tubao for damages anchored on Article 26 of the New
Civil Code. She alleged that on several occasions, petitioner went to the
Shaltene Pawnshop and Pharmacy where she was employed and
accused her of having an illicit affair with Dean; on one occasion, he held
her hand and forcibly pulled her outside, which caused her to scratch his
face and run after him with a knife; he also told her husbands cousin,
Willy Ordanza, that she had an illicit affair with Dean; Willy, in turn, told
her mother-in-law about it; petitioner relayed the same rumors to her co-
worker, Melba Dacanay, and his wife spread to people in the
Municipality, including Ramil Basallo, her brother-in-law. Elvisa also
prayed for damages in the total amount of P100,000.00. The case was
docketed as Civil Case No. 227.4
Instead of issuing a permanent medical certificate, the IRH issued on On October 13, 2000, the accused, assisted by counsel, was arraigned
February 8, 1999 the following Temporary Certificate: and entered a plea of not guilty.
According to hospital record, DEAN N. DONGUI-IS, 30 years old, male, Petitioner declared that he merely defended himself against Deans
married, a resident of Francia West, Tubao, La Union, was assault. Dean was so jealous of him because his mistress, Elvisa, had
examined/treated/confined in this hospital on/from February 3-20, 1999. also been his mistress. Unknown to Dean, he had already terminated
his relation with Elvisa sometime in March 1997 when his wife Lilibeth WHEREFORE, this Court, after a consideration of the evidence
18
discovered the illicit relationship. Dean also suspected that he adduced in this case, finds accused BENJAMIN MARTINEZ guilty of the
(petitioner) had been sending letters to his (Deans) wife relative to the crime of Frustrated Homicide as principal. Neither aggravating
illicit relationship with Elvisa. Dean also suspected that he was circumstance nor mitigating circumstance has been appreciated.
responsible for the raid conducted by the Criminal Investigation Service Applying the Indeterminate Sentence Law, accused Benjamin Martinez
19
(CIS) of his house for possession of a gun. As a result, Dean filed a is sentenced to suffer the penalty of imprisonment ranging from FOUR
civil complaint against him for damages, docketed as Civil Case No. 266. (4) YEARS OF PRISION CORRECTIONAL MEDIUM as minimum to
Before and after the filing of the civil case, Dean had hurled invectives EIGHT (8) YEARS and ONE (1) DAY OF PRISION MAYOR MEDIUM
at him in the presence of Joselito Madriaga and other tricycle as maximum. He is also ordered to pay DEAN DONGUI-IS the amount
drivers.20 Dean even attempted to sideswipe him with his car.21 of ONE HUNDRED FIFTY THOUSAND (P150,000.00) PESOS, broken
into the following:
Petitioner declared that the criminal charge against him was Deans
concoction, and intended solely to harass him. He narrated that he went (a) Ninety-Two Thousand (P92,000.00) Pesos for medical
to the TCC office at about 1:30 p.m. on February 3, 1999. His wife had expenses;
earlier received a note from the cooperative to get the interest on her
deposit.22 He parked his tricycle in front of the building on the left side of (b) Twenty-Six Thousand (P26,000.00) Pesos, representing
the railing going to the entrance of the cooperative. Deans car was
23
his salaries for two (2) months when he could not attend to
parked on the right side of the railing.24 On his way, he met his 82-year- teach due to his injuries;
old uncle, Godofredo Sarmiento, who was also on his way to the
cooperative to update his passbook because he was intending to apply (c) Twenty-Two Thousand (P22,000.00) Pesos as moral
for a loan.25 He told Godofredo that they could go to the TCC together. damages; and
When they were about to pass through the entrance door, Dean was
about to exit from the cooperative. Dean thought that he was blocking (d) Ten Thousand (P10,000.00) Pesos as complainants
his way and shouted invectives at him and his uncle; Dean also spat on attorneys fees.
his breast and face; and threw a punch which he was able to parry with
his left elbow.26 Dean kept attacking him, forcing him to move backward SO ORDERED.35
through the railing and towards his tricycle. Dean punched him again but
he managed to parry the blow with his bolo which he took from his The trial court gave credence and full probative weight to the testimony
tricycle. He stabbed Dean on his right elbow.27 He swung his bolo at of Dean, Dr. Rimando, SPO1 Sulatre, and the documentary evidence of
Dean which forced the latter to run back into the office. He entered the the prosecution. The court rejected petitioners twin defenses of denial
office and stood by the entrance door to see if Dean would get a weapon. and self-defense. It declared that his version lacked strong
Dean continued hurling invectives at him but was later pacified by corroboration, and that his witnesses (a close relative and a friend) were
Patricio Alterado, an employee of the cooperative. 28 When Barangay biased.
Captain Oller arrived, he surrendered, along with his bolo. 29 He never
boasted on the way to the police station that he had killed Dean. 30 Finding that the prosecution failed to prove the qualifying circumstances
of treachery, the trial court convicted petitioner of frustrated homicide.
Godofredo partially corroborated the testimony of petitioner. He The court declared that the crime involved a "love triangle," 36 and
31
declared that Dean spat on the face of petitioner. By the time Dean and considered the protagonists history of personal animosity. There was
petitioner reached the place where the latters tricycle was parked, he no evident premeditation because Dean had been "forewarned" of the
had left; he was afraid of being involved.32 He did not report the incident attack.37
to the police authorities.
On appeal before the CA, petitioner raised the following issues:
Joselito Madriaga testified that he and petitioner were bosom buddies
with a long history of friendship. Dean had an axe to grind against I. THE TRIAL COURT COMMITTED SERIOUS ERRORS WHEN IT
petitioner because the two maintained a common mistress, Elvisa. 33 WRONGFULLY GAVE CREDENCE TO THE FABRICATED CLAIMS
OF THE SOLE WITNESS FOR THE PROSECUTION.
The Trial Courts Decision
II. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT
On April 30, 2001, the trial court rendered judgment34 convicting WRONGFULLY GAVE CREDENCE TO THE FALSE AND SPECIOUS
petitioner of frustrated homicide. The fallo of the decision reads TESTIMONY OF THE COMPLAINANT.
III. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT appellate court modified the minimum sentence imposed by the trial
CONVICTED THE ACCUSED FOR FRUSTRATED HOMICIDE FOR court to four (4) years and two (2) months of prision correctional, as
INJURIES NOT ATTESTED BY ANY COMPETENT MEDICAL minimum.
CERTIFICATE.
As to damages, the CA deleted the RTCs award of loss of earning
IV. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT capacity and attorney fees, holding that they lack factual and legal basis.
CONVICTED THE ACCUSED FOR FRUSTRATED HOMICIDE It, however, increased the award of actual damages from P92,000.00
WITHOUT ANY PROOF BEYOND REASONABLE DOUBT. to P92,715.68 reasoning that latter amount was duly receipted. The CA
denied the appellants motion for reconsideration.41
V. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT
DISREGARDED THE CONCLUSIVE EVIDENCE FOR THE DEFENSE Before this Court, petitioner assigns the following errors allegedly
WHICH COMPLETELY NEGATED ANY PROOF FOR THE committed by the CA
PROSECUTION AND WHICH DEFINITELY WARRANTED THE
ACQUITTAL OF THE ACCUSED.38 I. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET
ASIDE, AS THEY AROSE FROM MISAPPREHENSION OF FACTS
Maintaining his innocence, petitioner claimed that he had merely acted THAT PROVE THAT THE PROCEEDINGS AND THE FINDINGS
in self-defense when Dean insulted him, spat on his face and assaulted MADE IN THE DECISION OF THE TRIAL COURT AS WELL AS IN THE
him with fist blows on a mere suspicion that he (petitioner) was blocking ASSAILED DECISION ITSELF, WERE BASED ON A FALSE CHARGE
Deans way through the exit door of the cooperative. WHICH IS PATENTLY FABRICATED BY A POLICE INVESTIGATOR
AND WHICH COMPRISES MALICIOUS PROSECUTION.
The Decision of the Court of Appeals
II. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET
On February 21, 2005, the CA rendered judgment affirming the assailed ASIDE, AS THEY ARE BASED ON THE FABRICATED STATEMENT
decision of the RTC with modification. The fallo reads AS WELL AS ON THE SOLE, SELF-SERVING, CONTRADICTORY
AND UNCORROBORATED TESTIMONY OF THE COMPLAINANT,
WHEREFORE, the appealed Decision dated April 30, 2001 of the trial WHICH ARE MANIFESTLY CONCOCTED AND CANNOT ESTABLISH
court is affirmed, subject to the afforested modification of the minimum THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT.
period of the sentence. Loss of earnings in the amount of P26,000.00
and attorneys fees in the amount of P10,000.00 are deleted, and the III. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SE[T]
award of actual damages is increased to P92,715.68. ASIDE, AS THERE IS TOTAL ABSENCE OF EVIDENCE TO PROVE
THE VACUOS CHARGE AS WELL AS THE SAID DECISION AND
39
SO ORDERED. RESOLUTION, FOR WHICH REASON THE GUILT OF THE ACCUSED
WAS NOT DULY PROVED BEYOND REASONABLE DOUBT[.]
The CA ruled that the case is more of a "retaliation" rather than a case
of self-defense. It declared that Dean sustained two fatal stab wounds IV. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET
in his left chest, a fact which belied petitioners defense and confirmed ASIDE, AS THE SAME WERE RENDERED IN ALL GRAVE ABUSE OF
the prosecutions theory that he purposely and vigorously attacked the DISCRETION AND IN TOTAL DISREGARD OF THE COMPETENT
victim. The CA ruled that when an unlawful aggression which has begun AND UNREBUTTED TESTIMONY FOR THE DEFENSE, WHICH
no longer exists, the one making the defense has no more right to kill or NEGATE ANY REASONABLE DOUBT ON THE GUILT OF THE
even wound the aggressor. The appellate court pointed out that in the ACCUSED.
case before it, the supposed unlawful aggression of Dean ceased from
the moment he retreated inside the cooperative building; there was no V. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET
need for petitioner to follow Dean inside the building and stab him with ASIDE, AS THE INFERENCES MADE ON THE UNDISPUTED FACTS
his bolo. Petitioner should have simply stood his ground and walked ARE CONTRARY TO LAW AND JURISPRUDENCE AND CANNOT
away. JUSTIFY ANY FINDING OF ANY PROOF BEYOND REASONABLE
DOUBT.42
In discounting the qualifying circumstances of treachery and evident
premeditation, the CA simply adverted to the stipulation of facts Petitioner insists that the criminal complaint filed by SPO1 Sulatre was
contained in the Pre-Trial Order dated December 20, 2000 issued by the a fabrication because the latter never conducted a formal investigation
RTC, stating "[t]hat the accused stabbed the private complainant when of the stabbing incident or of any witness to the incident. The police
the latter assaulted and boxed him (accused)."40 Petitioners plea of officer filed the criminal complaint against petitioner on the basis of a
voluntary surrender was not appreciated in his favor. However, the sworn statement by Dean which was taken only on March 10, 1999, long
after the criminal complaint was filed in the MCTC. Worse, when he to continue with the investigation, or issue a subpoena to the
testified on cross-examination, Dean admitted that he did not see the respondent attaching to it a copy of the complaint and its
questions prepared by SPO1 Sulatre at the hospital, nor his answers to supporting affidavits and documents.
the policemans questions. The affidavit dated March 10, 1999 was not
typewritten in the hospital, and he was not present when the affidavit It bears stressing that the officer conducting the preliminary investigation
was typewritten in the police station. Thus, the testimony of the victim has to determine whether to dismiss the complaint outright based on the
was self-serving and uncorroborated, tailored solely to support the averments of the complaint and the appendages thereof if it finds no
charge filed by SPO1 Sulatre. ground to continue with the investigation. If he finds ground to continue
with the investigation of the accused, a subpoena should be issued to
In its comment on the petition, respondent, through the Office of the the accused, appending thereto a copy of the complaint and the
Solicitor General (OSG), avers that the issues raised by petitioner are supporting affidavits. Unless the affidavits of the witnesses named in the
factual, hence, inappropriate in a petition for review on certiorari in this complaint and supporting documents are appended to the complaint, the
Court. investigating officer may not be able to determine whether to dismiss the
complaint outright or to conduct an investigation and issue a subpoena
The OSG maintains that the Revised Rules of Criminal Procedure does to the accused.44
not require that the affidavit of the offended party or the witnesses to the
crime charged be appended to the criminal complaint filed in court. We agree with petitioner that the criminal complaint filed by SPO1
Moreover, the issue of the validity of the criminal complaint in the MCTC Sulatre with the MCTC on March 10, 1999 was defective. As gleaned
had became moot and academic after the Information was filed in the from the RTC records, the criminal complaint was not accompanied by
trial court, and when petitioner was arraigned, assisted by counsel, and any medical certificate showing the nature and number of wounds
entered a plea of not guilty. sustained by the victim, the affidavits of any of the witnesses listed at
the bottom of the criminal complaint (particularly the victim himself), and
It insists that Deans testimony, by itself, is sufficient to warrant the the arrest report of SPO1 Sulatre, Brgy. Capt. Rodolfo Oller, and his son
conviction of petitioner for frustrated homicide. Petitioners conviction Nicky.
may be anchored on Deans testimony since the trial court found it
credible and entitled to full probative weight. Petitioner failed to prove The MCTC had the option not to act one way or the other on the criminal
his plea of self-defense by clear and convincing evidence. complaint of SPO1 Sulatre because the latter failed to comply with
Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal
The Courts Decision Procedure; or to order SPO1 Sulatre to comply with the aforequoted
rule; or to dismiss the complaint without prejudice to its refiling with the
The petition is denied for lack of merit. requisite documents. However, the MCTC opted not to act on the
complaint until after SPO1 Sulatre shall have submitted the requisite
Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal affidavits/medical certificate/arrest report. When SPO1 Sulatre filed with
Procedure43 provide: the MCTC, on March 10, 1999, the permanent medical certificate issued
by the IRH, the affidavit of Dean and his and Brgy. Capt. Ollers affidavit
Sec. 3. Procedure. The preliminary investigation shall be conducted in of arrest of petitioner, the MCTC forthwith issued a subpoena to
the following manner: petitioner appending thereto the said medical certificate, affidavit of
Dean and the affidavit of arrest of SPO1 Sulatre.45 Hence, SPO1 Sulatre
(a) The complaint shall state the address of the respondent had complied with Section 3(a) and (b), Rule 112 of the Revised Rules
and shall be accompanied by the affidavits of the complainant of Criminal Procedure.
and his witnesses, as well as other supporting documents to
establish probable cause. They shall be in such number of Moreover, petitioner submitted his counter-affidavit without any protest.
copies as there are respondents, plus two (2) copies for the Neither did he assail the validity of the criminal complaint or the tardy
official file. The affidavits shall be subscribed and sworn to submission by SPO1 Sulatre of the medical certificate, the affidavit of
before any prosecutor or government official authorized to Dean and the affidavit of arrest of SPO1 Sulatre. Aside from this,
administer oath, or, in their absence or unavailability, before a petitioner was arraigned in the RTC, assisted by counsel, and entered a
notary public, each of whom must certify that he personally plea of not guilty.
examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits. On the second issue, the rulings of the trial court and the appellate court
are correct. Whether or not petitioner acted in self-defense whether
(b) Within ten (10) days after the filing of the complaint, the complete or incomplete is a question of fact, 46 the well-entrenched rule
investigating officer shall either dismiss it if he finds no ground is that findings of fact of the trial court in the ascertainment of the
credibility of witnesses and the probative weight of the evidence on aggression is a sudden and unexpected attack or an imminent danger
record affirmed, on appeal, by the CA are accorded high respect, if not thereof, and not merely a threatening or an intimidating attitude.56
conclusive effect, by the Court and in the absence of any justifiable
reason to deviate from the said findings.47 Petitioner failed to discharge his burden.
In this case, the trial court gave no credence and probative weight to the First. Petitioner failed to surrender himself to the responding
evidence of petitioner to prove that he acted in self-defense, complete authorities who arrived at the situs criminis, as well as the bolo
or incomplete. Petitioner failed to establish that the trial court and the he used in stabbing the victim. One who acted in self-defense
appellate court misconstrued, misappropriated or ignored facts and is expected to surrender, not only himself, but also the
circumstances of substance which, if considered, would warrant a weapon he used to kill or inflict physical injuries on the
modification or reversal of the decision of the CA that petitioner failed to victim.57
establish clear and convincing evidence that he acted in self-defense,
complete or incomplete. Second. The victim sustained three stab wounds on different
parts of his body. Two were fatal stab wounds at his left chest.
Like alibi, petitioners claim of self-defense is weak; it is also settled that The presence of a large number of wounds on the part of the
self-defense is easy to fabricate and difficult to disprove. Such a plea is victim, their nature and location disprove self-defense and
48
both a confession and avoidance. One who invokes self-defense, instead indicate a determined effort to kill the victim.58
complete or incomplete, thereby admits having killed the victim by
inflicting injuries on him. The burden of evidence is shifted on the Third. Petitioner testified that he was punched by the victim.
accused to prove the confluence of the essential elements for the However, there is not a scintilla of evidence to show that
defense as provided in Article 11, paragraph 1 of the Revised Penal petitioner suffered even a scratch as a result of the alleged fist
Code: blows.
x x x (1) unlawful aggression; (2) reasonable necessity of the means Neither can the RTC nor the CA be faulted for giving credence to the
employed to prevent or repel it; and (3) lack of sufficient provocation on testimony of SPO1 Salutre. No evidence was adduced by the defense
49
the part of the person defending himself. x x x to show that he harbored any ill-motive against petitioner to charge him
with such a crime. Absent any proof of improper motive, the prosecution
The accused must rely on the strength of his own evidence and not on witness who is law enforcer is presumed to have regularly performed his
the weakness of that of the prosecution because even if the evidence of duty in arresting and charging petitioner.59 His testimony is thus entitled
the prosecution is weak, the same can no longer be disbelieved. 50 The to full faith and credit. Moreover, the conviction of petitioner was not
accused cannot escape conviction if he fails to prove the essential based solely on the testimony of the SPO1 Salutre. The unimpeached
elements of complete self-defense. testimony of Dean categorically established the crime; this was
corroborated by the testimony of Dr. Nathaniel Rimando.
In Garcia v. People,51 the Court defined unlawful aggression:
Petitioners argument that he should be acquitted because the criminal
x x x Unlawful aggression presupposes an actual, sudden and complaint against him was not supported by the victims sworn
unexpected or imminent danger on the life and limb of a person a mere statement or by an affidavit of any witness is totally untenable. This issue
threatening or intimidating attitude is not sufficient. There must be actual should have been raised during the preliminary investigation. It is much
physical force or a threat to inflict physical injury. In case of a threat, it too late in the day to complain about this issue after a judgment of
must be offensive and positively strong so as to display a real, not conviction has been rendered against him.
imagined, intent to cause injury. Aggression, if not continuous, does not
constitute, aggression warranting self-defense.52 Contrary to petitioners stance, the testimonies of his corroborating
witnesses are unimpressive. For one, Godofredos testimony was
Aggression, if not continuous, does not constitute aggression warranting limited only to the alleged fact that happened outside of the cooperative
self-defense.53 When unlawful aggression ceases, the defender no building. He himself admitted that when the protagonists started fighting
longer has any justification to kill or wound the original aggressor. The each other, for fear for his life, he hurriedly flagged and boarded a
assailant is no longer acting in self-defense but in retaliation against the tricycle which revved up to the highway; it was from there that he saw
54
original aggressor. petitioner slumped on his tricycle. In other words, he did not witness
what transpired thereafter or how the fight ended.
There can be no self-defense, complete or incomplete, unless the
accused proves unlawful aggression on the part of the victim.55 Unlawful Joselitos testimony did not fare any better. It was given neither credence
nor weight by the trial court. And even if it had been proved that the
victim was rabid against petitioner, such evidence would only have to kill.61 Moreover, physical evidence is evidence of the highest order. It
established a probability that he had indeed started an unlawful assault speaks more eloquently than a hundred witnesses.62
on petitioner. This probability cannot, however, overcome the victims
positive statement that petitioner waylaid and assaulted him without any Neither does the non-presentation of Dr. Darius R. Parias, the doctor
provocation. The theory that Dean may have started the fight since he who signed the medical certificate, would dent a bit the evidence for the
had a score to settle against petitioner is flimsy, at best. Furthermore, prosecution. This is so because Dr. Parias, who assisted Dr. Rimaldo
Joselito admitted that he was petitioners best friend; hence, his bias during the operation of Dean, would merely corroborate Dr. Rimaldos
cannot be discounted. testimony. As such, his testimony is not indispensable.
The Crime Committed by the Petitioner Fourthly, from the manner the crime was committed, there can hardly be
any doubt that intent to kill was present. It has been clearly established
Petitioner next argues that should he be convicted of any crime, it should that petitioner ambushed Dean and struck him with a bolo. Dean was
be of less serious physical injuries only, absence the element of intent defenseless and unarmed, while petitioner was deadly
to kill. He advances the argument that the single wound suffered by the armed.1vvphi1.nt
victim was not life threatening and that the latter was transferred to
undergo operation in another hospital only because the medical staff Lastly, the words of the petitioner while he was assaulting Dean were
where he was first rushed bungled their job. He makes much of the fact most revealing:
that Dr. Darius R. Parias who issued the Medical Certificate never
testified for the prosecution. Atty. Atitiw:
Again, the Court is not swayed.1a\^/phi1.net Q : When you were in the counter, what was accused
Benjamin doing?
If one inflicts physical injuries on another but the latter survives, the
crime committed is either consummated physical injuries, if the offender A : When I was inside the counter and hes outside and
had no intention to kill the victim or frustrated or attempted homicide or between us is a glass and there he shouting at me telling in
frustrated murder or attempted murder if the offender intends to kill the Ilocano that AGPARENTONG KA TATTA TA TALAGA NGA
victim. Intent to kill may be proved by evidence of the following: (a) PATAYEN KA TATTA NGA ALDAWEN "You kneel down
motive; (b) the nature or number of weapons used in the commission of because I will really kill you now."63
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 xxxx
offender at the time the injuries are inflicted by him on the victim. 60
Atty. Atitiw:
Petitioner insists that he had no intent to kill Dean. However, the physical
evidence belies petitioners pose. Q : While passing through the loading area of the tricycle, do
you remember anything that transpired there at the loading
To begin with, as between petitioner and the victim, the former had more area?
hatred to harbor arising from the fact that the victim filed a lawsuit
against him and his wife. Petitioner thus had more motive to do harm A : Yes, Sir.
than the victim. By his own account, he and Dean had a history of
personal animosity. Q : What is that, Mr. Witness?
Secondly, petitioner was armed with a deadly 14-inch bolo. A : While Benjamin Martinez, Barangay Captain Oller and I
were walking proceeding to our Police Station and when we
Thirdly, if it were true that petitioner stabbed Dean merely to defend were near the area, at the loading area if the tricycle,
himself, it defies reason why he had to stab the victim three times. Benjamin Martinez shouted and I quote: "SINAKSAK KON
Petitioners claim that Dean suffered only a single non-life threatening PARE, SANGSANGAILI LAENG ISUNA SAAN NGA ISUNA
wound is misleading. Dr. Rimando, who attended to and operated on TI AGARI DITOY TUBAO," that was the utterance, Sir.64
Dean, testified that the victim sustained three (3) stab wounds, two (2)
of which penetrated his heart and lung, causing massive blood clotting xxxx
necessitating operation; the other lacerated Deans his right elbow. The
presence of these wounds, their location and their seriousness would Q : After bringing him to the Police Station, what did you do
not only negate self-defense; they likewise indicate a determined effort next?
A : We put him in jail, Sir. Q : Where you able to go to the school?
It cannot be denied that petitioner had the intention to kill Dean. A : Probably he was hiding at the back of the L300 van, Sir.71
Petitioner performed all the acts of execution but the crime was not
consummated because of the timely medical intervention applied on the When Dean was attacked he was unarmed. He had just exited the
victim. cooperative building and had no inkling that he would be waylaid as he
made his way towards his car. Upon the other hand, petitioner was
An appeal in a criminal case opens the entire case for review on any armed with a deadly 14-inch bolo. The attacked on Dean was swift and
question including one not raised by the parties.66 In this regard, we find unannounced; undeniably, petitioners attack was treacherous.
ample evidence to establish treachery. The CAs advertence to the
stipulation of facts contained in the Pre-Trial Order dated December 20, Petitioner is guilty of frustrated murder under Article 248 in relation to
67
2000 is misplaced. This alleged stipulation was stricken off the record Article 6, first paragraph of the Revised Penal Code which reads:
on motion of the prosecution on the ground that no stipulation of such
fact was made.68 A felony is consummated when all the elements necessary for its
execution and accomplishment are present; and it is frustrated when the
There is treachery when the offender commits any of the crimes against offender performs all the acts of execution which would produce the
the person, employing means, methods, or forms in the execution felony as a consequence but which, nevertheless, do not produce it by
thereof which tend directly and specially to insure its execution without reason of causes independent of the will of the perpetrator.
risk to himself arising from the defense which the offended party might
take.69 The essential elements of a frustrated felony are as follows:
In the present case, the prosecution had met the requisites for alevosia 1. The offender performs all the acts of execution;
to be appreciated: (1) at the time of the attack the victim was not in a
position to defend himself; and (2) that the offender consciously adopted 2. All the acts performed would produce the felony as a
the particular means, method, or form of the attack employed by consequence;
him.70 Dean lived to tell about the swiftness of the attempt against his
life: 3. But the felony is not produced;
Q : After getting the dividend certificate where did you proceed 4. By reason of causes independent of the will of the
next? perpetrator.72
SO ORDERED.
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
ATTESTATION
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
of First Instance of Iloilo found him guilty of the crime of attempted
homicide and sentenced him to an indeterminate prison term of from 4
months and 21 days of arresto mayor to 2 years, 4 months and 1 day
of prision correccional, with the accessory penalties of the law and the
costs. Mondragon appealed to the Court of Appeals, and the latter court
affirmed the decision of the Court of First Instance of Iloilo in all its parts,
with costs. This case is now before us on a petition for certiorari to
review the decision of the Court of Appeals. No brief for the respondent.
The People of the Philippines, was filed by the Solicitor General.
"1. Incised wound about 2-1/2 inches long and 1/3 inches
deep cutting diagonally across the angle of the left jaw.
"2. Incised wound 1-1/2 inches long and cutting the bone
underneath (3/4 centimeters deep) below the right eye.
"3. Incised wound about 1 inch long at the lunar side of the left
ISIDORO MONDRAGON, petitioner, "4. Incised wound about 3-1/2 inches long and 1/2 inch deep
vs. at the left side of the lower part of the left arm.
ZALDIVAR, J.:
"Barring complication the above lesions may heal
The petitioner, Isidoro Mondragon, was prosecuted in the Court of First from 20 to 25 days."
Instance of Iloilo of the crime of frustrated homicide. After trial the Court
xxx xxx xxx The Court of Appeals concluded that the petitioner had the intention to
kill the offended party when the petitioner answered in the affirmative
Also upon the evidence, the offense committed is attempted the question as to whether he would do everything that he could do to
homicide. Appellant's intention to kill may be inferred from his stop the offended party from digging the canal because he needed the
admission made in court that he would do everything he could water. We reproduce here the transcript of the pertinent testimony:
to stop Nacionales from digging the canal because he needed
the water. However, it was established that the injuries xxx xxx xxx
received by the complainant were not necessarily fatal as to
cause the death of said complainant. ATTY. MORADA:
The issue raised by the petitioner in the present appeal is that the Court Q In other words you want to tell us that you will do
of Appeals erred in finding him guilty of the crime of attempted homicide everything you could to stop Nacionales digging the canal,
and not of the crime of less serious physical injuries. It is the contention because you need water?
of the petitioner that the facts as found by the Court of Appeals do not
show that the petitioner had the intention to kill the offended ATTY. CANTO:
party.1wph1.t
I object to the question. It is misleading.
There is merit in the contention of the petitioner. We have carefully
examined the record, and We find that the intention of the petitioner to COURT:
kill the offended party has not been conclusively shown. The finding of
the Court of Appeals that the petitioner had the intention to kill the Witness may answer.
offended party is simply the result of an inference from an answer made
by the petitioner while testifying in his own behalf. Thus in the decision WITNESS:
appealed from, it stated:
Yes, sir, because I need the water.
x x x Appellant's intention to kill may be inferred from his
admission made in Court that he would do everything he could xxx xxx xxx
to stop Nacionales from digging the canal because he needed
the water. The foregoing statement or answer was made by the petitioner during
the trial which took place on January 14, 1959. The incident in question
The facts as found by the Court of Appeals, in our opinion, do not took place on July 11, 1954. The statement made by the petitioner
establish the intent to kill on the part of the petitioner. Rather, We gather almost five years after the occurrence of the incident should not, in our
that what happened was that the petitioner and the offended party had opinion, be considered as an accurate indication of what he had in his
a quarrel over the matter regarding the opening of the canal which would mind at the time of the incident. Besides, that answer of the petitioner is
drain the water away from the land of the petitioner, and because of this not a categorical statement of an intention on his part to kill the offended
quarrel a fight between them took place. The fight started with the party. The term "will do everything" has a broad meaning and it should
petitioner first giving first blows to the offended party and later he drew be construed in a manner as to give the petitioner the benefit of the doubt
his bolo and inflicted on the offended party the injuries which the Court as to what he really meant to do. At least it cannot be said that when the
of Appeals found to be not necessarily fatal and which were certified by petitioner answered "yes", when he was asked whether he would do
a government medical officer that they would heal in less than 30 days. everything to stop Nacionales from digging the canal, the only way he
The facts as found by the Court of Appeals also show that the offended had in mind to stop Nacionales was to kill him. It must be noted that this
party drew his bolo and hit the petitioner on different parts of his body, answer of the petitioner was made to a qualifying question propounded
and that the petitioner retreated and did not insist on hitting the offended to him by the private prosecutor over the objection of his counsel on the
party with his bolo. It may be assumed that the petitioner drew his bolo ground that the question was misleading. At most, that answer of the
and hit the offended party with it only when the offended party had petitioner may only be considered as an expression of opinion of what
shown a defiant attitude, considering that the offended party himself had he would do under a given circumstance.
a bolo, as in fact the offended party had also drawn his bolo and hit the
petitioner with it, We consider that under the circumstances surrounding The intent to kill being an essential element of the offense of frustrated
the fight between the petitioner and the offended party the intention of or attempted homicide, said element must be proved by clear and
the petitioner to kill the offended party was not manifest. convincing evidence. That element must be proved with the same
degree of certainty as is required of the other elements of the crime. The
inference of intent to kill should not be drawn in the absence of
circumstances sufficient to prove such intent beyond reasonable doubt
(People vs. Villanueva, 51 Phil. 488).1
We hold that the facts brought out in the decision of the Court of Appeals
in the present case do not justify a finding that the petitioner had the
intention to kill the offended party. On the contrary, there are facts
brought out by the decision appealed from which indicates that the
petitioner had no intention to kill, namely: the petitioner started the
assault on the offended party by just giving him fist blows; the wounds
inflicted on the offended party were of slight nature, indicating no
homicidal urge on the part of the petitioner; the petitioner retreated and
went away when the offended party started hitting him with a bolo,
thereby indicating that if the petitioner had intended to kill the offended
party he would have held his ground and kept on hitting the offended
party with his bolo to kill him.
The element of intent to kill not having been duly established, and
considering that the injuries suffered by the offended party were not
necessarily fatal and could be healed in less than 30 days, We hold that
the offense that was committed by the petitioner is only that of less
serious physical injuries.
Footnotes
1
See also: U.S. vs. Reyes and Palanca, 80 Phil. 551; U.S. vs.
Mendoza, 38 Phil. 691; People vs. Montes. 53 Phil. 323;
People vs. Pacusbas and Pacusbas, 64 Phil. 614; and People
vs. Penesa 81 Phil. 398.
shoulder of Tan Siong Kiap immediately ran to a room behind the store
to hide. From there he still heard gunshot fired from defendant-
appellant's pistol, but afterwards defendant-appellant ran away.
Tan Siong Kiap was brought to the Chinese General Hospital, where his
wound was treated. He stayed there from September 3 to September
12, 1949, when he was released upon his request and against the
physician's advice. He was asked to return to the hospital for further
treatment, and he did so five times for a period of more than ten days.
Thereafter his wound was completely healed. He spent the sum of P300
for hospital and doctor's fees.
This is an appeal from a judgment of the Court of First Instance of Manila and Jose Sy. This written statement was taken down on a typewriter and
finding the defendant-appellant herein Sy Pio, alias Policarpio de la afterwards signed by the defendant-appellant in both his Chinese and
Cruz, guilty of frustrated murder against the person of Tan Siong Kiap, Filipino names, the latter being Policarpio de la Cruz.
and sentencing him to suffer an indeterminate sentence of 6 years, 1
month, and 11 days of prision mayor, to 14 years, 8 months, and 1 day According to the declaration of the defendant-appellant, some months
of reclusion temporal, to indemnify the offended party Tan Siong Kiap in prior to September 3, 1949, he was employed as an attendant in a
the sum of P350, without subsidiary imprisonment in case of insolvency, restaurant belonging to Ong Pian. Defendant-appellant's wife by the
and to pay the costs. The case was appealed to the Court of Appeals, name of Vicenta was also employed by Ong Pian's partner, Eng Cheng
but that court certified it to this Court under the provisions of section 17 Suy. Prior to September 3 the relatives of his wife had been asking the
(4) of Republic Act No. 296, on the ground that the crime charged was latter for help, because her father was sick. Defendant-appellant asked
committed on the same occasion that the defendant-appellant had money from Ong Pian, but the latter could only give him P1. His wife
committed crime of murder, with which the defendant-appellant was also was able to borrow P20 from her employer, and this was sent to his
charged. wife's parents in Cebu. Afterwards defendant-appellant was dismissed
from his work at the restaurant of Ong Pian, and he became a peddler.
The evidence for the prosecution shows that early in the morning of Ong Pian presented a list of the sums that defendant-appellant had
September 3, 1949, the defendant-appellant entered the store at 511 borrowed from him, and these sums were deducted from the salary of
Misericordia, Sta Cruz, Manila. Once inside he started firing a .45 caliber his wife. Defendant-appellant did not recognize these sums as his
pistol that he had in his hand. The first one shot was Jose Sy. Tan Siong indebtedness, and so he resented Ong Pian's conduct.
Kiap, who was in the store and saw the accused enter and afterwards
fire a shot at Jose Sy, asked the defendant-appellant, "What is the As to Tan Siong Kiap, the confession states that a few days before
idea?" Thereupon defendant-appellant turned around and fired at him September 3, 1949, defendant-appellant had been able to realize the
also. The bullet fired from defendant-appellant's pistol entered the right sum of P70 from the sales of medicine that he peddled. He laid his
money in a place in his room, but the following morning he found that it evidence submitted to prove the charge consists of: the uncontradicted
had disappeared from the place in which he had placed it. Tan Siong testimony of the victim himself; the admissions made verbally by the
Kiap and Jose Sy, upon the discovery of the loss of money, told defendant-appellant before Captain Lomotan in Tarlac; the fact that the
defendant-appellant that he must have given the money to his wife, and defendant-appellant had escaped and was found in Tarlac; his
that nobody had stolen it. After this incident of the loss, the defendant- possession of the .45 caliber pistol coupled with the fact, attested to by
appellant used to hear Tan Siong Kiap and Jose Sy and other Chinamen the testimony of the physician who examined and treated the wounds of
say that the money had not been actually stolen, but that he lost it in Tan Siong Kiap, that the wounds found in his person must have been
gambling. Because of these accusations against him, he nurtured caused by the caliber .45 bullet; and, lastly, the confession of the
resentment against both Tan Siong Kiap and Jose Sy. defendant-appellant himself, Exhibit D, which he was not able to impugn.
As against this mass of evidence, defendant-appellant has only made a
So early in the morning of September 3, while a Chinaman by the name very unbelievable story that it was not he but another that had committed
of Ngo Cho, who the possessor of a caliber .45 pistol, was away from the crime charged. His admissions at the time of the trial regarding the
his room, defendant-appellant got his pistol and tucked it in his belt. With incidents, as well as the cause of his having assaulted his victims,
this pistol he went to the restaurant at 822 Ongpin, and there shot Ong coincide exactly with the reasons given in his written confession. This
Pian. After shooting him, he proceeded to 511 Misericordia, in store shows that he had made the confession himself, for nobody but himself
where Jose Sy and Tan Siong Kiap were, and there he fired at them. could have known the facts therein stated. The claim that the offense
Then he escaped to Legarda Street, in Sampaloc, where he borrowed has not been proved beyond reasonable doubt must be dismissed.
P1 from his relatives. From there he went to Malabon, to the house of
his mother, to whom he told he had killed two persons and from he asked The defendant-appellant lastly claims that the lower court also erred in
money. sentencing him to pay an indemnity of P350. The offended party testified
that he actually spent P300 for hospital and doctor's fees, and that he
The foregoing is the substance of the written declaration made by the was confined in the hospital for nine days. The above facts stand
defendant-appellant in Exhibit D on September 6, 1949. At the time of uncontradicted. This assignment of error must also be dismissed.
the trial, however, he disowned the confession and explained that he
signed it without having read its contents. He declared that it was not he It is lastly contended that the defendant-appellant should be found guilty
who shot the three victims, but it was one by the name of Chua Tone, only of less serious physical injuries instead of the crime of frustrated
with whom he had previously connived to kill the three other victims. He murder as defendant-appellant admitted in his confession in the open
introduced no witnesses, however, to support his denial. Neither did he court that he had a grudge against the offended party, and that he
deny that he admitted before Captain Lomotan having killed the three connived with another to kill the latter. The intent to kill is also evident
persons, or having been found in Tarlac in possession of the caliber .45 from his conduct in firing the shot directly at the body of the offended
pistol, Exhibit C, and its magazine, Exhibit C-1. In his cross-examination party.
he admitted many of the incidents mentioned in the confession,
especially the cause of his resentment against his victims Ong Pian, But while intent to kill is conclusively proved the wound inflicted was not
Jose Sy, and Tan Siong Kiap. necessarily fatal, because it did not touch any of the vital organs of the
body. As a matter of fact, the medical certification issued by the
The trial court refused to believed his testimony, and therefore, found physician who examined the wound of the offended party at the time he
him guilty of the crime charged. went to the hospital, states that the wound was to heal within a period of
fourteen days, while the offended party actually stayed in the hospital
On this appeal counsel for the defendant-appellant claims that the trial for nine days and continued receiving treatment thereafter five time for
court erred in not finding that Tan Siong Kiap received the shot the period of more than ten days, or a total of not more than thirty days.
accidentally from the same bullet that had been fired at Jose Sy, and in The question that needs to be determined, therefore, is: Did the
finding that defendant-appellant has committed a crime distinct and defendant-appellant perform all the acts of execution necessary to
separate from that of murder for the slaying of Jose Sy. We find no merit produce the death of his victim?
in this contention. According to the uncontradicted testimony of the
offended party Tan Siong Kiap, when the latters saw defendant- In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. Dagman, 47
appellant firing shots he asked him why he was doing so, and the Phil., 768 and People vs. Borinaga, 55 Phil., 433, this Court has held
defendant-appellant, instead of answering him, turned around and fired that it is not necessary that the accused actually commit all the acts of
at him also. It is not true, therefore, that the shot which hit him was fired execution necessary to produce the death of his victim, but that it is
at Sy. sufficient that he believes that he has committed all said acts. In the case
of People vs. Dagman, supra, the victim was first knocked down by a
It is also contended that the evidence is not sufficient to sustain the stone thrown at him, then attacked with a lance, and then wounded by
judgment of conviction. We also find no merit in this contention. The bolos and clubs wielded by the accused, but the victim upon falling down
feigned death, and the accused desisted from further continuing in the
assault in the belief that their victim was dead. And in the case of
People vs. Borinaga, supra, the accused stabbed his intended victim,
but the knife with which he committed the aggression instead of hitting
the body of the victim, lodged in the back of the chair in which he was
seated, although the accused believed that he had already harmed him.
In both these cases this Court held that of the crime committed was that
of frustrated murder, because the subjective phase of the acts
necessary to commit the offense had already passed; there was full and
complete belief on the part of the assailant that he had committed all the
acts of execution necessary to produce the death of the intended victim.
Paras, C.J., Pablo, Bengzon, Reyes, Jugo, Bautista Angelo, and The Solicitor General for plaintiff-appellee.
Concepcion, JJ., concur.
At about noontime on July 24, 1971, Crispulo Incise wounds, neck, left
Alega, a civil engineer by profession working at the supers-lateral aspect, two in
Sugar Construction Company, with a salary of more
number, 2.5 and 1.2 crime in conclude that the findings of fact of the trial court,
lengths, both superficial upholding the version of the prosecution as against
that of the defense, must have to be sustained. As
Stab wound: left against the sole and uncorroborated testimony of
inframammary region, level of appellant merely denying any participation in the
the 5th intercostal space along commission of the crime imputed to him (while
the parasternal line, 6.0 cm. admitting that he was present at the scene of the
from the anterior midline, 0.5 crime), there is a formidable array of evidence
crime below the left nipple, against him consisting of the clear and convincing
elliptical in shape, 3.0 cm. long testimony of Remedios Maniti, who was in the
extended laterally by 3.0 crime company of the deceased at the time he was killed
long rising slightly downwards, and an eyewitness to the entire incident; the extra-
medially edges, clean cut, judicial written confession of defendant-appellant
sutured, medial extremity of (Exhibit D) admitting participation in the
which is blunt and lateral commission of the crime; the testimony of
extremity, sharp; directed Patrolman Arturo Rimorin who conducted the
upwards, medially and investigation of, and before whom Exhibit D was
backwards involving, among executed and signed by, defendant- appellant, as
others, the soft tissues, thru well straight the testimony of Sgt. Geronimo de los
the 5th intercostal muscles, Santos of the Pasay Police to whom defendant-
grazing the 6th rib superiorly, appellant orally admitted that he held the victim's
perforating the left pleural hands although he had no part in the actual
cavity only, into the middle stabbing of the deceased.
mediastinum by penetrating
the pericardium antero- With respect to the testimony of the eyewitness
inferiorly, perforating the Remedios Maniti there is absolutely nothing in the
interventricular system and record (except perhaps that she was the
penetrating the left ventricle of sweetheart of the deceased) to show, or even hint,
the heart at its apical portions, that she had any reasons to perjure herself by
approximate depth 11.0 cm. falsely incriminating defendant-appellant in such a
grievous crime, no bias, interest or prejudice
After the appellant's arrest on October 24, 1972, he against the latter as would move or induce her to
was investigated at the Detective Bureau of the faithlessly accuse him of a crime which he had not
Pasay City Police Department and gave a committed. More than ever, the time-honored ruling
statement (Exh. D, p. 90, rec.) in the presence of of this Honorable Court, too elemental to require
Pat. Arturo Rimorin admitting that on the date and citations, that the findings of the trial court on the
nine of the incident, he and his co-accused, Danilo question of credibility of the witnesses, having had
Tobias administrative Kardong Kaliwa alias Danny the advantage of observing their demeanor and
Kulot, held up a man and a woman; that they did manner of testifying, should not be disturbed in the
not get the watch of the man; that he held the absence of strong and cogent reasons therefor,
victim's hands but the latter was able to free applies fully to the case at bar. No such reasons
himself; that Danny Kulot stabbed the man, that can be found herein.
when the victim ran, they also ran away; and that
he did not know what happened to the victim (Exhs. The same observations may be made with respect
D, D-1, D-2, D-3, D-4 and D-5, p. 90, rec.; pp. 27-3 to the testimonies of Patrolman Rimorin and Sgt. de
1, tsn., Jan. 11, 1973). (Brief, pp. 2-6.) los Santos. Moreover, as has been held by this
Honorable Court, where the prosecution witnesses,
Atty. Luis R. Feria, counsel de oficio of the appellant, states: being government employees who testified as to
what transpired in the performance of their duties,
After a careful, considered and conscientious were neutral and disinterested and had no reason
examination of the evidence adduced in the instant to falsely testify against the accused, and did not
case, undersigned counsel is constrained to subject him to any violence, torture or bodily harm,
their testimonies should be given more weight than The appellant claims in his first assignment of error that he should not
that of the accused (P. v. Pereto, 21 SCRA 1469: have been convicted of the special complex crime of robbery with
P. v. Del Castillo, 25 SCRA 716.) homicide because the robbery was not consummated. He states that
there was only an attempted robbery.
Then there is the extrajudicial confession of
defendant-appellant, Exhibit D. True it is that, The Solicitor General states:
belatedly during the trial, appellant claimed that his
answers appearing in Exhibit D were given because ... We are constrained to agree with defense'
he was afraid as he was intimidated and struck on contention. The evidence adduced show that the
the buttock with a long piece of wood (pp. 32-34, appellant and his companion were unsuccessful in
t.s.n. Ses. of January 22, 1973). It is submitted that their criminal venture of divesting the victim of his
this last-minute, desperate and uncorroborated wrist watch so as to constitute the consummated
claim falls flat in the face not only of the crime of robbery. Indeed, as adverted to earlier,
presumption of voluntariness in the execution of when the victim expired, the 'Seiko' watch was still
confessions, but also of the testimony of Patrolman securely strapped to his wrist (p. 59, t.s.n., Jan. 11,
Rimorin to the effect that Exhibit D was executed 1973). The killing of Crispulo Alega may be
voluntarily and that defendant-appellant was never considered as merely incidental to and an offshoot
maltreated (pp. 26, 31-32, t.s.n. Ses. of January 11, of the plan to carry out the robbery, which however
1973), and the latter's own admission that before he was not consummated because of the resistance
signed Exhibit D, its contents were first read to him offered by the deceased. Consequently, this case
in Tagalog and that he fully understood the same would properly come under the provision of Art. 297
(pp. 24, t.s.n. Ses. of January 22, 1973), and his of the Revised Penal Code which states that
further admission that he has not filed any case
against those who had allegedly maltreated him (p. When by reason or on
33, t.s.n,Id.). Moreover, where the alleged occasion of an attempted or
confession reveals spontaneity of the declarations frustrated robbery a homicide
belying the claim that they were concocted or is committed, the person guilty
dictated by the police, the court win reject the case of such offenses shall be
that the confession was involuntary (P. v. Castro, punished by reclusion
11 SCRA 699).lwphl@it (Brief, pp. 3-5.) temporal in its maximum
period to reclusion
Notwithstanding the foregoing factual admission, Atty. Feria makes the perpetua, unless the homicide
following assignment of errors: committed shall deserve a
higher penalty under the
1. THE TRIAL COURT ERRED IN CONVICTING provisions of this Code. (Brief,
DEFENDANT- APPELLANT OF THE SPECIAL pp. 5-6.)
COMPLEX CRIME OF ROBBERY WITH
HOMICIDE AS DEFINED AND PENALIZED In his second assignment of error the appellant claims that the
UNDER ART. 294, PAR. 1, OF THE REVISED information does not allege any aggravating circumstance nor was any
PENAL CODE. proved during the trial.
2. EVEN ASSUMING THAT THE CRIME Again the Solicitor General states:
COMMITTED BY DEFENDANT-APPELLANT IS
ROBBERY WITH HOMICIDE, THE TRIAL COURT We likewise agree with the contention of counsel in
ERRED IN SENTENCING HIM TO SUFFER THE his second assigned error that the evidence
DEATH PENALTY. presented by the prosecution did not show the
attendance of any aggravating circumstance in the
We have scrutinized the record, particularly the testimonial evidence, commands of the crime and neither did the court a
and indeed there is no doubt that the appellant had a hand in the death quo make any finding in this respect (pp. 7-8,
of Crispulo Alega. There remains to be considered, however, the claims appellant's brief). (Id, p. 6.)
of the appellant which are made in the assignment of errors.
The crime committed by the appellant is attempted robbery with The Information filed against them reads:
homicide and the penalty prescribed by law is reclusion temporal in its
maximum period to reclusion perpetua. Since there was no attendant The undersigned City Fiscal accuses BIENVENIDO
mitigating nor aggravating circumstance, the penalty should be applied SALVILLA, REYNALDO CANASARES, RONALDO
in its medium period, i.e. 18 years, 8 months and 1 day to 20 years. The CANASARES, and SIMPLICIO CANASARES, whose
Indeterminate Sentence Law has also to be applied. maternal surnames, dated and places of birth cannot be
ascertained of the crime of ROBBERY WITH SERIOUS
WHEREFORE, the judgment of the trial court is hereby modified; the PHYSICAL INJURIES AND SERIOUS ILLEGAL DETENTION
appellant is found guilty beyond reasonable doubt of the special complex (Art, 294, paragraph 3, in conjunction with Article 267 of the
crime of attempted robbery with homicide and he is sentenced to suffer Revised Penal Code), committed as follows:
an indeterminate penalty of 10 years and 1 day of prision mayor as
minimum to 20 years of reclusion temporal as maximum, to indemnify That on or about the 12th day of April, 1986, in the City of
the heirs of Crispulo Alega in the amount of P30,000.00, and to pay one- Iloilo, Philippines and within the jurisdiction of this Court, said
half of the costs. SO ORDERED. accused, conspiring and confederating among themselves,
working together and helping one another, armed with guns
Fernando, C.J., Teehankee, Makasiar, Aquino, Concepcion, Jr., and handgrenade and with the use of violence or intimidation
Guerrero, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De employed on the person of Severino Choco, Mary Choco,
la Fuente and Cuevas, JJ., concur. Mimie Choco and Rodita Hablero did then and there wilfully,
unlawfully and criminally take and carry away, with intent of
gain, cash in the amount of P20,000.00, two (2) Men's wrist
watches, one (1) Lady's Seiko quartz wrist watch and one (1)
Lady's Citizen wrist watch and assorted jewelries, all valued
at P50,000.00; that on the occasion and by reason of said
robbery, Mary Choco suffered serious physical injuries under
paragraph 2 of Article 263, Bienvenido Salvilla likewise
suffered serious physical injuries and Reynaldo Canasares
also suffered physical injuries; that the said accused also
illegally detained, at the compound of the New Iloilo Lumber
Company, Iznart Street, Iloilo City, Severino Choco,
G.R. No. 86163 April 26, 1990 owner/proprietor of said Lumber Company, Mary Choco,
Mimie Choco, who is a minor, being 15 years of age, and
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Rodita Hablero, who is a salesgirl at said Company; that
vs. likewise on the occasion of the robbery, the accused also
BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO asked and were given a ransom money of P50,000.00; that
CANASARES, and SIMPLICIO CANASARES, BIENVENIDO the said crime was attended by aggravating circumstances of
SALVILLA, defendant-appellant. band, and illegal possession of firearms and explosives; that
the amount of P20,000.00, the ransom money of P50,000.00,
The Solicitor General for plaintiff-appellee. two (2) Men's wrist watches, two (2) lady's wrist watches, one
Resurreccion S. Salvilla for defendant-appellant. (1) .38 caliber revolver and one (1) live grenade were
recovered from the accused; to the damage and prejudice of
the New Iloilo Lumber Company in the amount of
P120,000.00.
MELENCIO-HERRERA, J.: The evidence for the prosecution may be re-stated as follows:
Accused Bienvenido Salvilla alone appeals from the Decision of the On 12 April 1986, a robbery was staged by the four accused at the New
Regional Trial Court, Branch 28, Iloilo City, *dated 29 August 1988, in Iloilo Lumber Yard at about noon time. The plan was hatched about two
Criminal Case No. 20092, finding him and his co-accused Reynaldo, days before. The accused were armed with homemade guns and a hand
Ronaldo and Simplicio, all surnamed Canasares, guilty beyond grenade. When they entered the establishment, they met Rodita
reasonable doubt of the crime of "Robbery with Serious Physical Injuries Hablero an employee thereat who was on her way out for her meal break
and Serious Illegal Detention" and sentencing them to suffer the penalty and announced to her that it was a hold-up. She was made to go back
of reclusion perpetua. to the office and there Appellant Salvilla pointed his gun at the owner,
Severino Choco, and his two daughters, Mary and Mimie the latter being For his part, Appellant Salvilla confirmed that at about noon time of 12
a minor 15 years of age, and told the former that all they needed was April 1986 he and his co-accused entered the lumber yard and
money. Hearing this, Severino told his daughter, Mary, to get a paper demanded money from the owner Severino Choco He demanded
bag wherein he placed P20,000.00 cash (P5,000.00, according to the P100,000.00 but was given only P5,000.00, which he placed on the
defense) and handed it to Appellant. Thereafter, Severino pleaded with counter of the office of the lumber yard. He admitted that he and his co-
the four accused to leave the premises as they already had the money accused kept Severino, his daughters, and Rodita inside the office. He
but they paid no heed. Instead, accused Simplicio Canasares took the maintained, however, that he stopped his co-accused from getting the
wallet and wristwatch of Severino after which the latter, his two wallet and wristwatch of Severino and, like the P5,000.00 were all left
daughters, and Rodita, were herded to the office and kept there as on the counter, and were never touched by them. He claimed further that
hostages. they had never fired on the military because they intended to surrender.
Appellant's version also was that during the gunfire, Severino's daughter
At about 2:00 o'clock of the same day, the hostages were allowed to eat. stood up and went outside; he wanted to stop her but he himself was hit
The four accused also took turns eating while the others stood guard. by a bullet and could not prevent her. Appellant also admitted the
Then, Appellant told Severino to produce P100,000.00 so he and the appeals directed to them to surrender but that they gave themselves up
other hostages could be released. Severino answered that he could not only much later.
do so because it was a Saturday and the banks were closed.
After trial, the Court a quo meted out a judgment of conviction and
In the meantime, police and military authorities had surrounded the sentenced each of the accused "to suffer the penalty of reclusion
premises of the lumber yard. Major Melquiades B. Sequio Station perpetua, with the accessory penalties provided by law and to pay the
Commander of the INP of Iloilo City, negotiated with the accused using costs."
a loud speaker and appealed to them to surrender with the assurance
that no harm would befall them as he would accompany them personally Appellant Salvilla's present appeal is predicated on the following
to the police station. The accused refused to surrender or to release the Assignments of Error:
hostages.
1. The lower court erred in holding that the crime charged was
Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the consummated and in not holding that the same was merely
negotiations. In her dialogue with the accused, which lasted for about attempted.
four hours, Appellant demanded P100,000.00, a coaster, and some
raincoats. She offered them P50,000.00 instead, explaining the difficulty 2. The lower court erred in not appreciating the mitigating
of raising more as it was a Saturday. Later, the accused agreed to circumstance of voluntary surrender."
receive the same and to release Rodita to be accompanied by Mary
Choco in going out of the office. When they were out of the door, one of Upon the facts and the evidence, we affirm.
the accused whose face was covered by a handkerchief, gave a key to
Mayor Caram. With this, Mayor Caram unlocked the padlocked door and The defense contends that "The complete crime of larceny
handed to Rodita the P50,000.00, which the latter, in turn, gave to one (theft/robbery) as distinguished from an attempt requires asportation or
of the accused. Rodita was later set free but Mary was herded back to carrying away, in addition to the taking, In other words, the crime of
the office. robbery/theft has three consecutive stages: 1) the giving 2) the taking
and 3) the carrying away or asportation And without asportation the
Mayor Caram, Major Sequio and even volunteer radio newscasters crime committed is only attempted" (Memorandum for Appellant Salvilla,
continued to appeal to the accused to surrender peacefully but they Records, p. 317).
refused.1wphi1 UItimatums were given but the accused did not budge.
Finally, the police and military authorities decided to launch an offensive There is no question that in robbery, it is required that there be a taking
and assault the place. This resulted in injuries to the girls, Mimie and of personal property belonging to another. This is known as the element
Mary Choco as well as to the accused Ronaldo and Reynaldo of asportation the essence of which is the taking of a thing out of the
Canasares. Mary suffered a "macerated right lower extremity just below possession of the owner without his privity and consent and without
the knee" so that her right leg had to be amputated. The medical the animus revertendi (Aquino, Revised Penal Code, p. 97, citing5 C.J.
certificate described her condition as "in a state of hemorrhagic shock 607). In fact, if there is no actual taking, there can be no robbery.
when she was brought in to the hospital and had to undergo several Unlawful taking of personal property of another is an essential part of
major operations during the course of her confinement from April 13, the crime of robbery.
1986 to May 30, 1986."
Appellant insists that while the "giving" has been proven, the "taking"
has not. And this is because neither he nor his three co-accused touched
the P5,000.00 given by Severino nor the latter's wallet or watch during It is the contention of Appellant that Rodita could not have seen the
the entire incident; proof of which is that none of those items were taking because the place was dark since the doors were closed and
recovered from their persons. there were no windows. It will be recalled, however, that Rodita was one
of the hostages herself and could observe the unfolding of events. Her
Those factual allegations are contradicted by the evidence. Rodita, the failure to mention the taking in her sworn statement would not militate
lumberyard employee, testified that upon demand by Appellant, against her credibility, it being settled that an affidavit is almost always
Severino put P20,000.00 inside a paper bag and subsequently handed incomplete and inaccurate and does not disclose the complete facts for
it to Appellant. In turn, accused Simplicio Canasares took the wallet and want of inquiries or suggestions (People vs. Andaya, G.R. No. L-63862,
wristwatch of Severino. In respect of the P50,000.00 from Mayor Caram, 31 July 1987, 152 SCRA 570; People vs. Tan, et al., 89 Phil. 337 [1951]).
Rodita declared that the Mayor handed the amount to her after she (the
Mayor) had opened the padlocked door and that she thereafter gave the The fact, too, that Rodita was an employee of Severino would not lessen
amount to one of the holduppers. The "taking" was, therefore, sufficiently her credibility. The defense has not proven that she was actuated by any
proved (TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The money improper motive in testifying against the accused.
demanded, and the wallet and wristwatch were within the dominion and
control of the Appellant and his co-accused and completed the taking. In the last analysis, the basic consideration centers around the credibility
of witnesses in respect of which the findings of the Trial Court are
The State established a "taking" sufficient to support a entitled to great weight as it was in a superior position to assess the
conviction of robbery even though the perpetrators were same in the course of the trial (see People vs. Ornoza G.R. No. L-56283,
interrupted by police and so did not pick up the money offered 30 June 1987, 151 SCRA 495; People vs. Alcantara, G.R. No. L-38042,
by the victim, where the defendant and an accomplice, armed 30 June 1987, 151 SCRA 326).
with a knife and a club respectively, had demanded the money
from the female clerk of a convenience store, and the clerk Anent the second assignment of error, the "surrender" of the Appellant
had complied with their instructions and placed money from and his co-accused cannot be considered in their favor to mitigate their
the register in a paper bag and then placed the bag on the liability. To be mitigating, a surrender must have the following requisites:
counter in front of the two men; these actions brought the (a) that the offender had not been actually arrested; (b) that the offender
money within the dominion and control of defendant and surrendered himself to a person in authority or to his agent; and (c) that
completed the taking. (Johnson vs. State, 432 So 2d 758). the surrender was voluntary (People vs. Canamo, G.R. No. L-62043, 13
August 1985, 138 SCRA 141).
"Severance of the goods from the possession of the owner
and absolute control of the property by the taker,even for an The "surrender" by the Appellant and his co-accused hardly meets these
instant, constitutes asportation (Adams vs. Commonwealth, requirements. They were, indeed, asked to surrender by the police and
154 SW 381; State vs. Murray, 280 SW 2d 809; Mason vs. military authorities but they refused until only much later when they could
Commonwealth, 105 SE 2d 149) [Emphasis supplied]. no longer do otherwise by force of circumstances when they knew they
were completely surrounded and there was no chance of escape. The
It is no defense either that Appellant and his co-accused had no surrender of the accused was held not to be mitigating as when he gave
opportunity to dispose of the personalities taken. That fact does not up only after he was surrounded by the constabulary and police forces
affect the nature of the crime, From the moment the offender gained (People vs. Sigayan et al., G.R. Nos. L-18523-26, 30 April 1966, 16
possession of the thing, even if the culprit had no opportunity to dispose SCRA 839; People vs. Mationg G.R. No. L-33488, 29 March 1982, 113
of the same, the unlawful taking is complete (Reyes, Revised Penal SCRA 167). Their surrender was not spontaneous as it was motivated
Code Annotated, Book II, 1981 ed., p. 594). more by an intent to insure their safety. And while it is claimed that they
intended to surrender, the fact is that they did not despite several
The crime is consummated when the robber acquires opportunities to do so. There is no voluntary surrender to speak of
possession of the property, even if for a short time, and it is (People vs. Dimdiman 106 Phil. 391 [1959]).
not necessary that the property be taken into the hands of the
robber, or that he should have actually carried the property All told, the assigned errors remain unsubstantiated and we find the guilt
away, out of the physical presence of the lawful possessor, or of the accused-appellant, Bienvenido Salvilla, established beyond
that he should have made his escape with it" (People vs. reasonable doubt.
Quinn, 176 P 2d 404; Woods vs. State, 220 SW 2d 644;
People vs. Beal, 39 P 2d 504; People vs. Clark, 160 P 2d 553). Although unassigned as an error, we deem it necessary to turn now to
the nature of the linked offenses involved and the penalty imposed by
Contrary to Appellant's submission, therefore, a conviction for the Trial Court.
consummated and not merely attempted Robbery is in order.
Appellant and his co-accused were charged in the Information with in the course thereof women and children were also held, that
"Robbery with Serious Physical Injuries and Serious Illegal Detention threats to kill were made, the act should not be considered as
("Art. 295, par. 3, in conjunction with Art. 267, RPC )and sentenced a separate offense. Appellants should only be held guilty of
to reclusion perpetua. We agree with the Trial Court that a complex robbery.
crime under Article 48 of the Revised Penal Code has been committed
such that the penalty for the more serious offense of Serious Illegal In contract, the detention in the case at bar was not only incidental to the
Detention (Art. 267, Revised Penal Code), or "reclusion perpetua to robbery but was a necessary means to commit the same.1wphi1 After
death," is to be imposed instead of the penalty prescribed for Robbery the amount of P20,000.00 was handed to Appellant, the latter and his
with Serious Physical Injuries (Art. 294 (3), which is reclusion temporal. co-accused still refused to leave. The victims were then taken as
hostages and the demand to produce an additional P100,000.00 was
Under Article 48, a complex crime arises "when an offense is a made as a prerequisite for their release. The detention was not because
necessary means for committing the other." The term "necessary the accused were trapped by the police nor were the victims held as
means" does not connote indispensable means for if it did then the security against the latter. The detention was not merely a matter of
offense as a "necessary means" to commit another would be an restraint to enable the malefactors to escape, but deliberate as a means
indispensable element of the latter and would be an ingredient thereof. of extortion for an additional amount. The police and other authorities
The phrase "necessary means" merely signifies that one crime is arrived only much later after several hours of detention had already
committed to facilitate and insure the commission of the other (Aquino, passed. And, despite appeals to appellant and his co-accused to
Revised Penal Code, Vol. I, 1987 ed., p. 624, citing Dissent, surrender, they adamantly refused until the amount of P100,000.00 they
Montemayor, J., Amado Hernandez, 99 Phil. 515). In this case, the crime demanded could be turned over to them. They even considered
of Serious Illegal Detention was such a "necessary means" as it was P50,000.00, the amount being handed to them, as inadequate.
selected by Appellant and his co-accused to facilitate and carry out more
effectively their evil design to stage a robbery. The foregoing features also distinguish this case from those of U.S. v.
Sol, 9 Phil. 265 [1907] where the restraint was for no other purpose than
The facts of this case differ from those in People vs. Astor, et al. (G.R. to prevent the victims from reporting the crime to the authorities; from
Nos. L-71765-66, 29 April 1987, 149 SCRA 325) where the accused People v. Gamboa, 92 Phil. 1085 [1953] where the victims were taken
were convicted of Robbery but acquitted in the case for Serious Illegal to a place one kilometer away and shot in order to liquidate the
Detention and where it was held that "the detention is absorbed in the witnesses to the robbery; from People v. Baysa, 92 Phil. 1008 [1953];
crime of robbery." For one, in Astor, there were two (2) separate People v. Manzanilla, 43 Phil. 167 [1922], all of which cases were cited
Informations filed, one for Robbery and another for Serious Illegal in Astor and where the victims were only incidentally detained so that
Detention. In the present case, only one Information was filed charging the detention was deemed absorbed in robbery.
the complex offense. For another, in Astor, the robbery had already
been consummated and the detention was merely to forestall the In other words, unlike in the above cases, the elements of the offense of
capture of the robbers by the police. Not so in this case, where the Serious Illegal Detention are present in this case. The victims were
detention was availed of as a means of insuring the consummation of illegally deprived of their liberty. Two females (Mary and Minnie) and a
the robbery. Further, in Astor, the detention was only incidental to the minor (Minnie), a specified circumstance in Article 267 (3), were among
main crime of robbery so that it was held therein: those detained. The continuing detention was also for the purpose of
extorting ransom, another listed circumstance in Article 267 (last parag.)
. . . were appellants themselves not trapped by the early not only from the detained persons themselves but even from the
arrival of the police at the scene of the crime, they would have authorities who arrived to rescue them.
not anymore detained the people inside since they have
already completed their job. Obviously, appellants were left It follows then that as the detention in this case was not merely incidental
with no choice but to resort to detention of these people as to the robbery but a necessary means employed to facilitate it, the
security, until arrangements for their safe passage were penalty imposed by the Trial Court is proper.
made. This is not the crime of illegal detention punishable
under the penal laws but an act of restraint in order to delay WHEREFORE, the judgment appealed from is hereby AFFIRMED.
the pursuit of the criminals by peace officers (People v. Sol, 9 Proportionate costs.
Phil. 265; People v. Uday 55 Phil. 167, cited in the Revised
Penal Code, Aquino, Vol. 3, 1976 ed., p. 1337). Where the SO ORDERED.
victims in a robbery case were detained in the course of
robbery, the detention is absorbed by the crime of robbery (P. Paras, Padilla Sarmiento and Regalado JJ., concur.
v. Baysa, 92 Phil. 1008, id.). In the case at bar, the detention
was only incidental to the main crime of robbery, and although
G.R. No. 88724 April 3, 1990
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape
in Criminal Case No. 83-031-B before the Regional Trial Court, Branch
II, Borongan, Eastern Samar. The information filed in the said case
reads as follows (p. 47, Rollo):
WHEREFORE, the trial court's judgment is hereby Appellant then lay down on his back and commanded her to
MODIFIED, and the appellant found guilty of the crime of rape, mount him. In this position, only a small part again of his penis
and consequently, sentenced to suffer imprisonment was inserted into her vagina. At this stage, appellant had both
of reclusion perpetua and to indemnify the victim in the his hands flat on the floor. Complainant thought of escaping
amount of P30,000.00. (p. 20, ibid).
SO ORDERED. She dashed out to the next room and locked herself in.
Appellant pursued her and climbed the partition. When she
On January 11, 1989, the Court of Appeals issued a resolution setting saw him inside the room, she ran to another room. Appellant
aside its December 29, 1988 decision and forwarded the case to this again chased her. She fled to another room and jumped out
Court, considering the provision of Section 9, paragraph 3 of Batas through a window (p. 27, ibid).
Pambansa Blg. 129 in conjunction with Section 17, paragraph 3,
subparagraph 1 of the Judiciary Act of 1948.
Still naked, she darted to the municipal building, which was 2) The trial court erred in declaring that the crime of frustrated rape was
about eighteen meters in front of the boarding house, and committed by the accused.
knocked on the door. When there was no answer, she ran
around the building and knocked on the back door. When the The accused assails the testimonies of the victim and Pat. Donceras
policemen who were inside the building opened the door, they because they "show remarkable and vital inconsistencies and its
found complainant naked sitting on the stairs crying. Pat. incredibility amounting to fabrication and therefore casted doubt to its
Donceras, the first policeman to see her, took off his jacket candor, truth and validity." (p. 33, Rollo)
and wrapped it around her. When they discovered what
happened, Pat. Donceras and two other policemen rushed to A close scrutiny of the alleged inconsistencies revealed that they refer
the boarding house. They heard a sound at the second floor to trivial inconsistencies which are not sufficient to blur or cast doubt on
and saw somebody running away. Due to darkness, they the witnesses' straightforward attestations. Far from being badges of
failed to apprehend appellant. fabrication, the inconsistencies in their testimonies may in fact be
justifiably considered as manifestations of truthfulness on material
Meanwhile, the policemen brought complainant to the Eastern points. These little deviations also confirm that the witnesses had not
Samar Provincial Hospital where she was physically been rehearsed. The most candid witnesses may make mistakes
examined. sometimes but such honest lapses do not necessarily impair their
intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988,
Dr. Ma. Luisa Abude, the resident physician who examined 160 SCRA 98). Rather than discredit the testimonies of the prosecution
complainant, issued a Medical Certificate (Exhibit "A") which witnesses, discrepancies on minor details must be viewed as adding
states: credence and veracity to such spontaneous testimonies (Aportadera et
al. v. Court of Appeals, et al., G.R. No. L-41358, March 16, 1988, 158
Physical Examination Patient is fairly built, came SCRA 695). As a matter of fact, complete uniformity in details would be
in with loose clothing with no under-clothes; a strong indication of untruthfulness and lack of spontaneity (People v.
appears in state of shock, per unambulatory. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one
of the alleged inconsistencies deserves a little discussion which is, the
PE Findings Pertinent Findings only. testimony of the victim that the accused asked her to hold and guide his
penis in order to have carnal knowledge of her. According to the
Neck- Circumscribed hematoma at Ant. neck. accused, this is strange because "this is the only case where an
aggressor's advances is being helped-out by the victim in order that
Breast Well developed, conical in shape with there will be a consumation of the act." (p. 34, Rollo). The allegation
prominent nipples; linear abrasions below (L) would have been meritorious had the testimony of the victim ended
breast. there. The victim testified further that the accused was holding a
Batangas knife during the aggression. This is a material part of the
Back Multiple pinpoint marks. victim's testimony which the accused conveniently deleted.
Extremities Abrasions at (R) and (L) knees. We find no cogent reason to depart from the well-settled rule that the
findings of fact of the trial court on the credibility of witnesses should be
Vulva No visible abrasions or marks at the accorded the highest respect because it has the advantage of observing
perineal area or over the the demeanor of witnesses and can discern if a witness is telling the
vulva, errythematous (sic) areas noted surrounding truth (People v. Samson, G.R. No. 55520, August 25, 1989). We quote
vaginal orifice, tender, hymen intact; no laceration with favor the trial court's finding regarding the testimony of the victim (p
fresh and old noted; examining finger can barely 56, Rollo):
enter and with difficulty; vaginal canal tight; no
discharges noted. As correctly pointed out in the memorandum for the People,
there is not much to be desired as to the sincerity of the
As aforementioned, the trial court convicted the accused of frustrated offended party in her testimony before the court. Her answer
rape. to every question profounded (sic), under all circumstances,
are plain and straightforward. To the Court she was a picture
In this appeal, the accused assigns the following errors: of supplication hungry and thirsty for the immediate
vindication of the affront to her honor. It is inculcated into the
1) The trial court erred in disregarding the substantial inconsistencies in mind of the Court that the accused had wronged her; had
the testimonies of the witnesses; and traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all even in her nudity, she had to run away from the latter and
that is necessary to show that rape was committed provided her managed to gain sanctuary in a house owned by spouses
testimony is clear and free from contradiction and her sincerity and hardly known to her. All these acts she would not have done
candor, free from suspicion (People v Alfonso, G.R. No. 72573, August nor would these facts have occurred unless she was sexually
31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, assaulted in the manner she narrated.
February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498,
December 16, 1985, 140 SCRA 400). The victim in this case did not only The accused questions also the failure of the prosecution to present
state that she was raped but she testified convincingly on how the rape other witnesses to corroborate the allegations in the complaint and the
was committed. The victim's testimony from the time she knocked on the non-presentation of the medico-legal officer who actually examined the
door of the municipal building up to the time she was brought to the victim. Suffice it to say that it is up to the prosecution to determine who
hospital was corroborated by Pat. Donceras. Interpreting the findings as should be presented as witnesses on the basis of its own assessment
indicated in the medical certificate, Dr. Reinerio Zamora (who was of their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679,
presented in view of the unavailability of Dr. Abude) declared that the June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989). As
abrasions in the left and right knees, linear abrasions below the left for the non-presentation of the medico-legal officer who actually
breast, multiple pinpoint marks, circumscribed hematoma at the anterior examined the victim, the trial court stated that it was by agreement of
neck, erythematous area surrounding the vaginal orifice and tender the parties that another physician testified inasmuch as the medico-legal
vulva, are conclusive proof of struggle against force and violence officer was no longer available. The accused did not bother to contradict
exerted on the victim (pp. 52-53, Rollo). The trial court even inspected this statement.
the boarding house and was fully satisfied that the narration of the scene
of the incident and the conditions therein is true (p. 54, Rollo): Summing up, the arguments raised by the accused as regards the first
assignment of error fall flat on its face. Some were not even
. . . The staircase leading to the first floor is in such a condition substantiated and do not, therefore, merit consideration. We are
safe enough to carry the weight of both accused and offended convinced that the accused is guilty of rape. However, We believe the
party without the slightest difficulty, even in the manner as subject matter that really calls for discussion, is whether or not the
narrated. The partitions of every room were of strong accused's conviction for frustrated rape is proper. The trial court was of
materials, securedly nailed, and would not give way even by the belief that there is no conclusive evidence of penetration of the
hastily scaling the same. genital organ of the victim and thus convicted the accused of frustrated
rape only.
A little insight into human nature is of utmost value in judging rape
complaints (People v. Torio, et al., G.R. No. L-48731, December 21, The accused contends that there is no crime of frustrated rape. The
1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo): Solicitor General shares the same view.
. . . And the jump executed by the offended party from that Article 335 of the Revised Penal Code defines and enumerates the
balcony (opening) to the ground which was correctly elements of the crime of rape:
estimated to be less than eight (8) meters, will perhaps
occasion no injury to a frightened individual being pursued. Art. 335. When and how rape is committed. Rape is
Common experience will tell us that in occasion of committed by having carnal knowledge of a woman under any
conflagration especially occuring (sic) in high buildings, many of the following circumstances:
have been saved by jumping from some considerable heights
without being injured. How much more for a frightened barrio 1. By using force or intimidation;
girl, like the offended party to whom honor appears to be more
valuable than her life or limbs? Besides, the exposure of her 2. When the woman is deprived of reason or otherwise
private parts when she sought assistance from authorities, as unconscious and
corroborated, is enough indication that something not ordinary
happened to her unless she is mentally deranged. Sadly, 3. When the woman is under twelve years of age, even though
nothing was adduced to show that she was out of her mind. neither of the circumstances mentioned in the two next
preceding paragraphs shall be present.
In a similar case (People v. Sambili G.R. No. L-44408, September 30,
1982, 117 SCRA 312), We ruled that: xxx xxx xxx
What particularly imprints the badge of truth on her story is Carnal knowledge is defined as the act of a man in having sexual bodily
her having been rendered entirely naked by appellant and that connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides: is stopped short of that point by some cause apart from his
voluntary desistance.
Art. 6. Consummated, frustrated, and attempted felonies.
Consummated felonies as well as those which are frustrated Clearly, in the crime of rape, from the moment the offender has carnal
and attempted, are punishable. knowledge of his victim he actually attains his purpose and, from that
moment also all the essential elements of the offense have been
A felony is consummated when all the elements necessary for accomplished. Nothing more is left to be done by the offender, because
its execution and accomplishment are present; and it is he has performed the last act necessary to produce the crime.Thus, the
frustrated when the offender performs all the acts of execution felony is consummated. In a long line of cases (People v. Oscar, 48 Phil.
which would produce the felony as a consequence but which, 527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-
nevertheless, do not produce it by reason of causes 31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-
independent of the will of the perpetrator. 32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule
that for the consummation of rape, perfect penetration is not essential.
There is an attempt when the offender commences the Any penetration of the female organ by the male organ is sufficient. Entry
commission of a felony directly by overt acts, and does not of the labia or lips of the female organ, without rupture of the hymen or
perform all the acts of execution which should produce the laceration of the vagina is sufficient to warrant conviction. Necessarily,
felony by reason of some cause or accident other than his own rape is attempted if there is no penetration of the female organ (People
spontaneous desistance. v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United
States v. Garcia: 9 Phil. 434) because not all acts of execution was
Correlating these two provisions, there is no debate that the attempted performed. The offender merely commenced the commission of a felony
and consummated stages apply to the crime of rape.1wphi1 Our directly by overt acts. Taking into account the nature, elements and
concern now is whether or not the frustrated stage applies to the crime manner of execution of the crime of rape and jurisprudence on the
of rape. matter, it is hardly conceivable how the frustrated stage in rape can ever
be committed.
The requisites of a frustrated felony are: (1) that the offender has
performed all the acts of execution which would produce the felony and Of course, We are aware of our earlier pronouncement in the case of
(2) that the felony is not produced due to causes independent of the People v. Eria 50 Phil. 998 [1927] where We found the offender guilty
perpetrator's will. In the leading case of United States v. Eduave, 36 of frustrated rape there being no conclusive evidence of penetration of
Phil. 209, 212, Justice Moreland set a distinction between attempted and the genital organ of the offended party. However, it appears that this is
frustrated felonies which is readily understood even by law students: a "stray" decision inasmuch as it has not been reiterated in Our
subsequent decisions. Likewise, We are aware of Article 335 of the
. . . A crime cannot be held to be attempted unless the Revised Penal Code, as amended by Republic Act No. 2632 (dated
offender, after beginning the commission of the crime by overt September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965)
acts, is prevented, against his will, by some outside cause which provides, in its penultimate paragraph, for the penalty of death
from performing all of the acts which should produce the when the rape is attempted or frustrated and a homicide is committed
crime. In other words, to be an attempted crime the purpose by reason or on the occasion thereof. We are of the opinion that this
of the offender must be thwarted by a foreign force or agency particular provision on frustrated rape is a dead provision. The Eria
which intervenes and compels him to stop prior to the moment case, supra, might have prompted the law-making body to include the
when he has performed all of the acts which should produce crime of frustrated rape in the amendments introduced by said laws.
the crime as a consequence, which acts it is his intention to
perform. If he has performed all of the acts which should result In concluding that there is no conclusive evidence of penetration of the
in the consummation of the crime and voluntarily desists from genital organ of the victim, the trial court relied on the testimony of Dr.
proceeding further, it can not be an attempt. The essential Zamora when he "categorically declared that the findings in the vulva
element which distinguishes attempted from frustrated felony does not give a concrete disclosure of penetration. As a matter of fact,
is that, in the latter, there is no intervention of a foreign or he tossed back to the offended party the answer as to whether or not
extraneous cause or agency between the beginning of the there actually was penetration." (p. 53, Rollo) Furthermore, the trial court
commission of the crime and the moment when all of the acts stated (p. 57, Rollo):
have been performed which should result in the
consummated crime; while in the former there is such . . . It cannot be insensible to the findings in the medical
intervention and the offender does not arrive at the point of certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora
performing all of the acts which should produce the crime. He and the equivocal declaration of the latter of uncertainty
whether there was penetration or not. It is true, and the Court
is not oblivious, that conviction for rape could proceed from Article 335, paragraph 3, of the Revised Penal Code provides that
the uncorroborated testimony of the offended party and that a whenever the crime of rape is committed with the use of a deadly
medical certificate is not necessary (People v. Royeras weapon, the penalty shall be reclusion perpetua to death. The trial court
People v. Orteza, 6 SCRA 109, 113). But the citations the appreciated the aggravating circumstances of dwelling and nighttime.
people relied upon cannot be applicable to the instant case. Thus, the proper imposable penalty is death. In view, however, of Article
The testimony of the offended party is at variance with the 111, Section 19(1) of the 1987 Constitution and Our ruling in People
medical certificate. As such, a very disturbing doubt has v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited
surfaced in the mind of the court. It should be stressed that in Constitutional provision did not declare the abolition of the death penalty
cases of rape where there is a positive testimony and a but merely prohibits the imposition of the death penalty, the Court has
medical certificate, both should in all respect, compliment since February 2, 1987 not imposed the death penalty whenever it was
each other, for otherwise to rely on the testimony alone in utter called for under the Revised Penal Code but instead reduced the same
disregard of the manifest variance in the medical certificate, to reclusion perpetua (People v. Solis, et al., G.R. Nos. 78732-33,
would be productive of mischievous results. February 14, 1990). Reclusion perpetua, being a single indivisible
penalty under Article 335, paragraph 3, is imposed regardless of any
The alleged variance between the testimony of the victim and the mitigating or aggravating circumstances (in relation to Article 63,
medical certificate does not exist. On the contrary, it is stated in the paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No.
medical certificate that the vulva was erythematous (which means 59713, March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No.
marked by abnormal redness of the skin due to capillary congestion, as L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R.
in inflammation) and tender. It bears emphasis that Dr. Zamora did not No. 70744, May 31, 1985, 136 SCRA 702).
rule out penetration of the genital organ of the victim. He merely testified
that there was uncertainty whether or not there was penetration. Anent ACCORDINGLY, the decision of the Regional Trial Court is hereby
this testimony, the victim positively testified that there was penetration, MODIFIED. The accused Ceilito Orita is hereby found guilty beyond
even if only partially (pp. 302, 304, t.s.n., May 23, 1984): reasonable doubt of the crime of rape and sentenced to reclusion
perpetua as well as to indemnify the victim in the amount of P30,000.00.
Q Was the penis inserted on your vagina?
SO ORDERED.
A It entered but only a portion of it.
Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.
xxx xxx xxx
The fact is that in a prosecution for rape, the accused may be convicted
even on the sole basis of the victim's testimony if credible (People v.
Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v.
Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569;
People v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154
SCRA 349). Moreover, Dr. Zamora's testimony is merely corroborative
and is not an indispensable element in the prosecution of this case
(People v. Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the
scale in favor of the accused because after a thorough review of the
records, We find the evidence sufficient to prove his guilt beyond
reasonable doubt of the crime of consummated rape.
EN BANC tacked to the penetration itself. The importance of the requirement of
penetration, however slight, cannot be gainsaid because where entry
[G.R. No. 129433. March 30, 2000] into the labia or the lips of the female genitalia has not been established,
the crime committed amounts merely to attempted rape.
PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y
BELLO, accused. Verily, this should be the indicium of the Court in determining whether
rape has been committed either in its attempted or in its consummated
DECISION stage; otherwise, no substantial distinction would exist between the two,
despite the fact that penalty-wise, this distinction, threadbare as it may
BELLOSILLO, J.: seem, irrevocably spells the difference between life and death for the
accused - a reclusive life that is not even perpetua but only temporal on
[1] one hand, and the ultimate extermination of life on the other. And,
On 3 April 1990 this Court in People v. Orita finally did away with
[2] arguing on another level, if the case at bar cannot be deemed attempted
frustrated rape and allowed only attempted rape and consummated
rape to remain in our statute books. The instant case lurks at the but consummated rape, what then would constitute attempted rape?
threshold of another emasculation of the stages of execution of rape by Must our field of choice be thus limited only to consummated rape and
considering almost every attempt at sexual violation of a woman as acts of lasciviousness since attempted rape would no longer be possible
consummated rape, that is, if the contrary view were to be adopted. The in light of the view of those who disagree with this ponencia?
danger there is that that concept may send the wrong signal to every
roaming lothario, whenever the opportunity bares itself, to better intrude On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory
with climactic gusto, sans any restraint, since after all any attempted rape and sentenced by the court a quo to the extreme penalty of
fornication would be considered consummated rape and punished as death,[5] hence this case before us on automatic review under Art. 335
such. A mere strafing of the citadel of passion would then be considered of the Revised Penal Code as amended by RA 7659.[6]
a deadly fait accompli, which is absurd.
As may be culled from the evidence on record, on 25 April 1996, at
In Orita we held that rape was consummated from the moment the around 4 oclock in the afternoon, Ma. Corazon P. Pamintuan, mother of
offender had carnal knowledge of the victim since by it he attained his four (4)-year old Crysthel Pamintuan, went down from the second floor
objective. All the elements of the offense were already present and of their house to prepare Milo chocolate drinks for her two (2) children.
nothing more was left for the offender to do, having performed all the At the ground floor she met Primo Campuhan who was then busy filling
acts necessary to produce the crime and accomplish it. We ruled then small plastic bags with water to be frozen into ice in the freezer located
that perfect penetration was not essential; any penetration of the female at the second floor. Primo was a helper of Conrado Plata Jr., brother of
organ by the male organ, however slight, was sufficient. The Court Corazon. As Corazon was busy preparing the drinks, she heard one of
further held that entry of the labia or lips of the female organ, even her daughters cry, "Ayo'ko, ayo'ko!"[7] prompting Corazon to rush
without rupture of the hymen or laceration of the vagina, was sufficient upstairs. Thereupon, she saw Primo Campuhan inside her childrens
to warrant conviction for consummated rape. We distinguished room kneeling before Crysthel whose pajamas or "jogging pants" and
consummated rape from attempted rape where there was no panty were already removed, while his short pants were down to his
penetration of the female organ because not all acts of execution were knees.
performed as the offender merely commenced the commission of a
felony directly by overt acts.[3] The inference that may be derived According to Corazon, Primo was forcing his penis into Crysthels vagina.
therefrom is that complete or full penetration of the vagina is not required Horrified, she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and
for rape to be consummated. Any penetration, in whatever degree, is boxed him several times. He evaded her blows and pulled up his pants.
enough to raise the crime to its consummated stage. He pushed Corazon aside when she tried to block his path. Corazon
then ran out and shouted for help thus prompting her brother, a cousin
But the Court in Orita clarified the concept of penetration in rape by and an uncle who were living within their compound, to chase the
requiring entry into the labia or lips of the female organ, even if there be accused.[8] Seconds later, Primo was apprehended by those who
no rupture of the hymen or laceration of the vagina, to warrant a answered Corazon's call for help. They held the accused at the back of
conviction for consummated rape. While the entry of the penis into the their compound until they were advised by their neighbors to call
lips of the female organ was considered synonymous with mere the barangay officials instead of detaining him for his misdeed. Physical
touching of the external genitalia, e.g., labia majora, labia minora, examination of the victim yielded negative results. No evident sign of
etc.,[4] the crucial doctrinal bottom line is extra-genital physical injury was noted by the medico-legal officer on
that touching must be inextricably viewed in light of, in relation to, or as Crysthels body as her hymen was intact and its orifice was only 0.5 cm.
an essential part of, the process of penile penetration, and not just mere in diameter.
touching in the ordinary sense. In other words, the touching must be
Primo Campuhan had only himself for a witness in his defense. He carnal knowledge of a woman below twelve (12), as provided in Art. 335,
maintained his innocence and assailed the charge as a mere scheme of par. (3), of the Revised Penal Code. Crysthel was only four (4) years old
Crysthel's mother who allegedly harbored ill will against him for his when sexually molested, thus raising the penalty, from reclusion
[9]
refusal to run an errand for her. He asserted that in truth Crysthel was perpetua to death, to the single indivisible penalty of death under RA
in a playing mood and wanted to ride on his back when she suddenly 7659, Sec. 11, the offended party being below seven (7) years old. We
pulled him down causing both of them to fall down on the floor. It was in have said often enough that in concluding that carnal knowledge took
this fallen position that Corazon chanced upon them and became place, full penetration of the vaginal orifice is not an essential ingredient,
hysterical. Corazon slapped him and accused him of raping her child. nor is the rupture of the hymen necessary; the mere touching of the
He got mad but restrained himself from hitting back when he realized external genitalia by the penis capable of consummating the sexual act
she was a woman. Corazon called for help from her brothers to stop him is sufficient to constitute carnal knowledge.[10] But the act
as he ran down from the second floor. of touching should be understood here as inherently part of the entry of
the penis into the labias of the female organ and not mere touching
Vicente, Corazon's brother, timely responded to her call for help and alone of the mons pubis or the pudendum.
accosted Primo. Vicente punched him and threatened to kill him. Upon
hearing the threat, Primo immediately ran towards the house of Conrado In People v. De la Pea[11] we clarified that the decisions finding a case
Plata but Vicente followed him there. Primo pleaded for a chance to for rape even if the attackers penis merely touched the external portions
explain as he reasoned out that the accusation was not true. But Vicente of the female genitalia were made in the context of the presence or
kicked him instead. When Primo saw Vicente holding a piece of lead existence of an erect penis capable of full penetration. Where the
pipe, Primo raised his hands and turned his back to avoid the blow. At accused failed to achieve an erection, had a limp or flaccid penis, or an
this moment, the relatives and neighbors of Vicente prevailed upon him oversized penis which could not fit into the victim's vagina, the Court
to take Primo to the barangay hall instead, and not to maul or possibly nonetheless held that rape was consummated on the basis of the
kill him. victim's testimony that the accused repeatedly tried, but in vain, to insert
his penis into her vagina and in all likelihood reached the labia of
Although Primo Campuhan insisted on his innocence, the trial court on her pudendum as the victim felt his organ on the lips of her vulva,[12]or
27 May 1997 found him guilty of statutory rape, sentenced him to the that the penis of the accused touched the middle part of her
extreme penalty of death, and ordered him to pay his victim P50,000.00 vagina.[13] Thus, touching when applied to rape cases does not simply
for moral damages, P25,000.00 for exemplary damages, and the costs. mean mere epidermal contact, stroking or grazing of organs, a slight
brush or a scrape of the penis on the external layer of the victims vagina,
The accused Primo Campuhan seriously assails the credibility of Ma. or the mons pubis, as in this case. There must be sufficient and
Corazon Pamintuan. He argues that her narration should not be given convincing proof that the penis indeed touched the labias or slid into the
any weight or credence since it was punctured with implausible female organ, and not merely stroked the external surface thereof, for
statements and improbabilities so inconsistent with human nature and an accused to be convicted of consummated rape. [14] As
experience. He claims that it was truly inconceivable for him to commit the labias, which are required to be "touched" by the penis, are by their
the rape considering that Crysthels younger sister was also in the room natural situs or location beneath the mons pubis or the vaginal surface,
playing while Corazon was just downstairs preparing Milo drinks for her to touch them with the penis is to attain some degree of penetration
daughters. Their presence alone as possible eyewitnesses and the fact beneath the surface, hence, the conclusion that touching the labia
that the episode happened within the family compound where a call for majoraor the labia minora of the pudendum constitutes consummated
assistance could easily be heard and responded to, would have been rape.
enough to deter him from committing the crime. Besides, the door of the
room was wide open for anybody to see what could be taking place The pudendum or vulva is the collective term for the female genital
inside. Primo insists that it was almost inconceivable that Corazon could organs that are visible in the perineal area, e.g., mons pubis, labia
give such a vivid description of the alleged sexual contact when from majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc.
where she stood she could not have possibly seen the The mons pubis is the rounded eminence that becomes hairy after
alleged touching of the sexual organs of the accused and his victim. He puberty, and is instantly visible within the surface. The next layer is
asserts that the absence of any external signs of physical injuries or of the labia majora or the outer lips of the female organ composed of the
penetration of Crysthels private parts more than bolsters his innocence. outer convex surface and the inner surface. The skin of the outer convex
surface is covered with hair follicles and is pigmented, while the inner
In convicting the accused, the trial court relied quite heavily on the surface is a thin skin which does not have any hair but has many
testimony of Corazon that she saw Primo with his short pants down to sebaceous glands. Directly beneath the labia majora is the labia
his knees kneeling before Crysthel whose pajamas and panty were minora.[15] Jurisprudence dictates that the labia majora must
[16]
supposedly "already removed" and that Primo was "forcing his penis into be entered for rape to be consummated, and not merely for the penis
Crysthels vagina." The gravamen of the offense of statutory rape is to stroke the surface of the female organ. Thus, a grazing of the surface
of the female organ or touching the mons pubis of the pudendum is not of the prosecution but to run roughshod over the constitutional right of
sufficient to constitute consummated rape. Absent any showing of the the accused to be presumed innocent.
slightest penetration of the female organ, i.e., touching of either labia of
the pudendum by the penis, there can be no consummated rape; at Corazon insists that Primo did not restrain himself from pursuing his
most, it can only be attempted rape, if not acts of lasciviousness. wicked intention despite her timely appearance, thus giving her the
opportunity to fully witness his beastly act.
Judicial depiction of consummated rape has not been confined to the
oft-quoted "touching of the female organ,"[17] but has also progressed We are not persuaded. It is inconsistent with mans instinct of self-
into being described as "the introduction of the male organ into preservation to remain where he is and persist in satisfying his lust even
the labia of the pudendum,"[18] or "the bombardment of the when he knows fully well that his dastardly acts have already been
[19]
drawbridge." But, to our mind, the case at bar merely constitutes a discovered or witnessed by no less than the mother of his victim. For,
"shelling of the castle of orgasmic potency," or as earlier stated, a the normal behavior or reaction of Primo upon learning of Corazons
"strafing of the citadel of passion." presence would have been to pull his pants up to avoid being caught
literally with his pants down. The interval, although relatively short,
A review of the records clearly discloses that the prosecution utterly provided more than enough opportunity for Primo not only to desist from
failed to discharge its onus of proving that Primos penis was able to but even to conceal his evil design.
penetrate Crysthels vagina however slight. Even if we
grant arguendo that Corazon witnessed Primo in the act of sexually What appears to be the basis of the conviction of the accused was
molesting her daughter, we seriously doubt the veracity of her claim that Crysthel's answer to the question of the court -
she saw the inter-genital contact between Primo and Crysthel. When
asked what she saw upon entering her childrens room Corazon plunged Q: Did the penis of Primo touch your organ?
into saying that she saw Primo poking his penis on the vagina of Crysthel
without explaining her relative position to them as to enable her to see A: Yes, sir.
clearly and sufficiently, in automotive lingo, the contact point. It should
be recalled that when Corazon chanced upon Primo and Crysthel, the But when asked further whether his penis penetrated her organ, she
former was allegedly in a kneeling position, which Corazon described readily said, "No." Thus -
thus:
Q: But did his penis penetrate your organ?
Q: How was Primo holding your daughter?
A: No, sir.[20]
A: (The witness is demonstrating in such a way that
the chest of the accused is pinning down the victim, This testimony alone should dissipate the mist of confusion that
while his right hand is holding his penis and his left enshrouds the question of whether rape in this case was consummated.
hand is spreading the legs of the victim). It has foreclosed the possibility of Primos penis penetrating her vagina,
however slight. Crysthel made a categorical statement denying
It can reasonably be drawn from the foregoing narration that Primos penetration,[21] obviously induced by a question propounded to her who
kneeling position rendered an unbridled observation impossible. Not could not have been aware of the finer distinctions
even a vantage point from the side of the accused and the victim would between touching and penetration. Consequently, it is improper and
have provided Corazon an unobstructed view of Primos penis unfair to attach to this reply of a four (4)-year old child, whose vocabulary
supposedly reaching Crysthels external genitalia, i.e., labia is yet as underdeveloped as her sex and whose language is bereft of
majora, labia minora, hymen, clitoris, etc., since the legs and arms of worldly sophistication, an adult interpretation that because the penis of
Primo would have hidden his movements from Corazons sight, not to the accused touched her organ there was sexual entry. Nor can it be
discount the fact that Primos right hand was allegedly holding his penis deduced that in trying to penetrate the victim's organ the penis of the
thereby blocking it from Corazons view. It is the burden of the accused touched the middle portion of her vagina and entered
prosecution to establish how Corazon could have seen the sexual the labia of her pudendum as the prosecution failed to establish
contact and to shove her account into the permissive sphere of sufficiently that Primo made efforts to penetrate Crysthel.[22] Corazon did
credibility. It is not enough that she claims that she saw what was done not say, nay, not even hint that Primo's penis was erect or that he
to her daughter. It is required that her claim be properly demonstrated responded with an erection.[23] On the contrary, Corazon even narrated
to inspire belief. The prosecution failed in this respect, thus we cannot that Primo had to hold his penis with his right hand, thus showing that
conclude without any taint of serious doubt that inter-genital contact was he had yet to attain an erection to be able to penetrate his victim.
at all achieved. To hold otherwise would be to resolve the doubt in favor
Antithetically, the possibility of Primos penis having breached Crysthels from the medium period of reclusion temporal, the range of which is
vagina is belied by the child's own assertion that she resisted Primos fourteen (14) years, eight (8) months and (1) day to seventeen (17)
advances by putting her legs close together; [24] consequently, she did years and four (4) months, while the minimum shall be taken from the
not feel any intense pain but just felt "not happy" about what Primo did penalty next lower in degree, which is prision mayor, the range of which
to her.[25] Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray is from six (6) years and one (1) day to twelve (12) years, in any of its
ko!" In cases where penetration was not fully established, the Court had periods.
anchored its conclusion that rape nevertheless was consummated on
the victim's testimony that she felt pain, or the medico-legal finding WHEREFORE, the Decision of the court a quo finding accused PRIMO
of discoloration in the inner lips of the vagina, or the labia minora was "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing
already gaping with redness, or the hymenal tags were no longer him to death and to pay damages is MODIFIED. He is instead found
[26]
visible. None was shown in this case. Although a child's testimony guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison
must be received with due consideration on account of her tender age, term of eight (8) years four (4) months and ten (10) days of prision
the Court endeavors at the same time to harness only what in her story mayor medium as minimum, to fourteen (14) years ten (10) months and
appears to be true, acutely aware of the equally guaranteed rights of the twenty (20) days of reclusion temporal medium as maximum. Costs de
accused. Thus, we have to conclude that even on the basis of the oficio.
testimony of Crysthel alone the accused cannot be held liable for
consummated rape; worse, be sentenced to death. SO ORDERED.
Lastly, it is pertinent to mention the medico legal officer's finding in this Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing,
case that there were no external signs of physical injuries on Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De
complaining witness body to conclude from a medical perspective that Leon, Jr., JJ., concur.
penetration had taken place. As Dr. Aurea P. Villena explained, although
the absence of complete penetration of the hymen does not negate the Panganiban, J., in the result.
possibility of contact, she clarified that there was no medical basis to
hold that there was sexual contact between the accused and the
victim.[27]
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is
attempted when the offender commences the commission of rape
directly by overt acts, and does not perform all the acts of execution
which should produce the crime of rape by reason of some cause or
accident other than his own spontaneous desistance. All the elements
of attempted rape - and only of attempted rape - are present in the
instant case, hence, the accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the
imposable penalty of death for the offense charged, which is statutory
rape of a minor below seven (7) years. Two (2) degrees lower
is reclusion temporal, the range of which is twelve (12) years and one
(1) day to twenty (20) years. Applying the Indeterminate Sentence Law,
and in the absence of any mitigating or aggravating circumstance, the
maximum of the penalty to be imposed upon the accused shall be taken
Guilgan was sentenced to six years and one day of presidio mayor and
to pay one-half of the costs. From this judgment this defendant
appealed. With respect to Hugo Labarro or Navarro, the proceedings
were dismissed with the other half of the costs de officio.
Between 8 and 9 o'clock in the morning of April 28th of this year, when
M. D. Lewin was absent from the house in which he was living his family,
at No. 328, San Rafael Street, San Miguel, Mrs. Auckback, who appears
to have been a resident of the neighborhood, called Mrs. Lewin and told
her that much smoke was issuing from the lower floor of the latter's
house, for until then Mrs. Lewin had not noticed it, and as soon as her
attention was brought to the fact she ordered the servant Paulino Banal
to look for the fire, as he did and he found, so asked with kerosene oil
and placed between a post of the house and a partition of the entresol,
a piece of a jute sack and a rag which were burning. At that moment the
defendant Valdes was in the entresol, engaged in his work of cleaning,
while, the other defendant Hugo Labarro was cleaning the horses kept
at the place.
G.R. No. L-14128 December 10, 1918 rag and piece of jute sack, soaked with kerosene, in the place where
they were found, and stated, that it was the servant Paulino who had
THE UNITED STATES, plaintiff-appellee, done so. He alleged that, on being arraigned, he stated that he had set
vs. fire to a pile of dry mango leaves that he had gathered together, which
SEVERINO VALDES Y GUILGAN, defendant-appellant. is contrary to the statement he made in the police station, to wit, that he
had set the fire to the said rag and piece of sack under the house.
Owing to the repeated attempts made for about a month past, since
TORRES, J.: Severino Valdes Began to serve the Lewin family, to burn the house
above mentioned. occupied by the latter and in which this defendant was
This cause was instituted by a complaint filed by the prosecuting employed, some policemen were watching the building and one of them,
attorney before the Court of First Instance of this city, charging Severino Antonio Garcia del Cid., one morning prior to the commission of the
Valdes y Guilgan and Hugo Labarro y Bunaladi, alias Hugo Navarro y crime, according to his testimony, saw the defendant Valdes climbing up
Bunadia, with the crime of arson, and, on the 20th of May of the present the wall of the warehouse behind the dwelling house, in which
year, judgment was rendered whereby Severino or Faustino Valdes u warehouse there was some straw that had previously been burned, and
that, when the defendant noticed the presence of the policeman, he
desisted from climbing the wall and entering the warehouse.
The fact of setting fire to a jute sack and a rag, soaked with kerosene oil
and placed beside an upright of the house and a partition of the entresol
of the building, thus endangering the burning of the latter, constitutes the
crime of frustrated arson of an inhabited house, on an occasion when
some of its inmates were inside of it.. This crime of provided for and
punished by article 549, in connection with articles 3, paragraph 2, and
65 of the Penal Code, and the sole proven perpetrator of the same by
direct participation is the defendant Severino Valdes, for,
notwithstanding his denial and unsubstantiated exculpations, the record
discloses conclusive proof that it was he who committed the said
unlawful act, as it was also he who was guilty of having set the other
fires that occurred in said house. In an affidavit the defendant admitted
having made declarations in the police station, and though at the trial he
denied that he set fire to the sacks and the rag which were found soaked
in kerosene and burning, and, without proof whatever, laid the blame
unto his codefendant, the fact is that confessed to having set fire to a
pile of dry leaves whereby much smoke arose from the lower part of the
house, but which, however, did not forewarn his mistress, Mrs. Lewin,
though she should have noticed it, and he allowed the sack and the rag
to continue burning until Mrs. Auckback noticing a large volume of
smoke in the house, gave the alarm. No proof was submitted to
substantiate the accusation he made against the servant Paulino, who
apparently is the same persons as the driver Hugo Labarro.
CONTRARY TO LAW.[2]
SECOND DIVISION
The Evidence of the Prosecution[6]
[G.R. No. 121828. June 27, 2003] On February 5, 1988, at around 11:30 p.m., Elisa Rolan was
inside their store at 613 Nueve de Pebrero Street, Mandaluyong City,
waiting for her husband to arrive. Joselito Capa and Julian Azul, Jr. were
drinking beer. Edmar Aguilos and Odilon Lagliba arrived at the
PEOPLE OF THE PHILIPPINES, appellee, vs. EDMAR AGUILOS,
store. Joselito and Julian invited them to join their drinking spree, and
ODILON LAGLIBA Y ABREGON and RENE GAYOT
although already inebriated, the two newcomers obliged. In the course
PILOLA, accused, RENE GAYOT PILOLA, appellant.
of their drinking, the conversation turned into a heated argument. Edmar
nettled Julian, and the latter was peeved. An altercation between the two
DECISION ensued. Elisa pacified the protagonists and advised them to go home as
CALLEJO, SR., J.: she was already going to close up. Edmar and Odilon left the
store. Joselito and Julian were also about to leave, when Edmar and
Before us is the appeal of appellant Rene Gayot Pilola for the Odilon returned, blocking their way. Edmar took off his eyeglasses and
reversal of the Decision[1] of the Regional Trial Court (RTC) of Pasig City, punched Julian in the face. Elisa shouted: Tama na. Tama na. Edmar
Branch 164, convicting him of murder, sentencing him to suffer reclusion and Julian ignored her and traded fist blows until they reached Aling
perpetua and ordering him to indemnify the heirs of the victim Joselito Soteras store at the end of the street, about twelve to fifteen meters
Capa y Rulloda in the amount of P50,000 for the latters death. away from Elisas store. For his part, Odilon positioned himself on top of
a pile of hollow blocks and watched as Edmar and Julian swapped
punches. Joselito tried to placate the protagonists to no avail. Joselitos
intervention apparently did not sit well with Odilon. He pulled out his
The Indictment
knife with his right hand and stepped down from his perch. He placed
his left arm around Joselitos neck, and stabbed the latter. Ronnie and
On June 7, 1998, Edmar Aguilos, Odilon Lagliba y Abregon and the appellant, who were across the street, saw their gangmate Odilon
appellant Rene Gayot Pilola were charged with murder in an Information stabbing the victim and decided to join the fray. They pulled out their
which reads: knives, rushed to the scene and stabbed Joselito.Elisa could not tell how
many times the victim was stabbed or what parts of his body were hit by
That on or about the 5th day of February, 1988 in the Municipality of whom. The victim fell in the canal. Odilon and the appellant fled, while
Mandaluyong, Metro Manila, Philippines, a place within the jurisdiction Ronnie went after Julian and tried to stab him. Julian ran for dear
of this Honorable Court, the above-named accused, conspiring and life. When he noticed that Ronnie was no longer running after him, Julian
stopped at E. Rodriguez Road and looked back. He saw Ronnie pick up 5. Elliptical, 1.3 cm., oriented almost horizontally, edges are clean-cut,
a piece of hollow block and with it bashed Joselitos head. Not content, one extremity is sharp and the other is blunt; located at the lateral chest
Ronnie got a piece of broken bottle and struck Joselito once wall, level of 7th intercostal space, left, 16.0 cm. from anterior median
more. Ronnie then fled from the scene.Joselito died on the spot. Elisa line; directed backward, upward and medially, into the left thoracic cavity
rushed to Joselitos house and informed his wife and brother of the and then penetrating the lower lobe of left lung with an approximately
[7]
incident. depth of 10.0 cm.;
10. Elliptical, 2.3 cm., oriented almost vertically, edges are clean-cut,
2. Elliptical, 1.5 cm., oriented almost horizontally, edges are clean-cut,
upper extremity is sharp, lower extremity is blunt; located at the left
one extremity is sharp and the other is blunt; located at the antero-lateral
forearm, upper third, anterior; directed backward, upward and medially
aspect of chest, level of 3rd intercostal space, left, 3.0 cm. from anterior
and communicating with another wound, arm, left, medial aspect, 2.0
median line; directed backward, downward and medially, into the left
cm.;
thoracic cavity, penetrating the left ventricle of the heart with an
approximate depth of 10.0 cm.;
11. Elliptical, 2.0 cm., oriented almost vertically, edges are clean-cut,
upper extremity blunt, lower extremity, sharp; located at the left arm,
3. Elliptical, 3.0 cm., oriented almost horizontally, edges are clean-cut,
lower third, posterior aspect, directed forward, downward and medially,
one extremity is sharp and the other is blunt; located at the antero-lateral
communicating with another wound, arm, left, lower third, posterior
aspect of chest, level of 4th intercostal space, 12.0 cm. from anterior
aspect, 1.5 cm.
median line; directed backward, downward and medially, penetrating
upper lobe of left lung with an approximate depth of 9.0 cm.;
Hemothorax, left 900 c.c.
The Evidence of the Appellant THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE
UNRELIABLE AND INCONSISTENT TESTIMONY OF PROSECUTION
WITNESS ELISA ROLAN AND IN SETTING ASIDE THE EVIDENCE
The appellant denied stabbing the victim and interposed the
PROFFERED BY ACCUSED-APPELLANT.
defense of alibi. He testified that at around 11:00 p.m. of February 5,
1988, he was in the house of his cousin, Julian Cadion, at 606 Nueve
III
de Pebrero Street, Mandaluyong City. He suddenly heard a commotion
coming from outside. Julian rushed out of the house to find out what was
THE TRIAL COURT MANIFESTLY ERRED IN CONVICTING
going on. The appellant remained inside the house because he was
ACCUSED-APPELLANT OF THE CRIME CHARGED DESPITE THE
suffering from ulcer and was experiencing excessive pain in his
FACT THAT HIS GUILT WAS NOT PROVED BEYOND REASONABLE
stomach. The following morning, the appellant learned from their
DOUBT.[13]
neighbor, Elisa Rolan, that Joselito had been stabbed to death. The
appellant did not bother to ask who was responsible for the stabbing. [9]
The appellant avers that Elisa is not a credible witness and her
Julian alias Buboy Cadion corroborated the appellants testimony is barren of probative weight. This is so because she
testimony. He testified that the appellant was in their house on the night contradicted herself when she testified on direct examination that
of February 5, 1988, and was suffering from ulcer. The appellant stayed Ronnie struck the head of the victim with a hollow block. However, on
home on the night of the incident.[10] cross-examination, she stated that it was Edmar who struck the
victim. The inconsistency in Elisas testimony impaired her credibility.
Agripina Gloria, a female security guard residing at Block 30,
Nueve de Pebrero, 612, Int. 4, Allison St., Mandaluyong City, testified The contention of the appellant does not hold water.
that on February 5, 1988 at around 11:00 p.m., she heard a commotion
First. The identity of the person who hit the victim with a hollow
outside. Momentarily, she saw Ronnie rush into the kitchen of the house
block is of de minimis importance. The victim died because of multiple
of her niece Teresita; he took a knife and run towards Nueve de Pebrero
wounds. The appellant is charged with murder for the killing of the victim
Street where Edmar and Julian were fighting. She then followed Ronnie
with a knife, in conspiracy with the other accused.
and saw Joselito trying to pacify the protagonists. Ronnie grabbed
Joselito and instantly stabbed the latter, who for a while retreated and Second. The perceived inconsistency in Elisas account of events
fell down the canal. Not content, Ronnie repeatedly stabbed is a minor and collateral detail that does not affect the substance of her
Joselito. Thereafter, Ronnie ran towards the direction of the mental testimony, as it even serves to strengthen rather than destroy her
hospital. Agripina did not see Odilon or the appellant anywhere within credibility.[14]
the vicinity of the incident.[11]
Third. Elisa has been consistent in her testimony that the
On May 3, 1995, the trial court rendered its assailed decision, the appellant was one of the men who stabbed the victim, the others being
dispositive portion of which reads, to wit: Ronnie and Odilon. Elisas testimony is corroborated by the autopsy
report of Dr. Bienvenido Muoz and his testimony that the victim
WHEREFORE, this Court finds RENE GAYOT PILOLA of 606 Nueve de sustained eleven stab wounds. The doctor testified that there were two
Febrero Street, Mandaluyong City, GUILTY beyond reasonable doubt of or more assailants:
Murder punished under Article 248 of the Revised Penal Code, and
Q Could you tell the court what instrument could have been
there being no mitigating nor aggravating circumstances, he is hereby
used by the perpetrator in inflicting those two incise
sentenced to reclusion perpetua. Pilola is hereby ordered to indemnify
wounds?
the heirs of deceased Joselito Capa alias Jessie in the amount of FIFTY
THOUSAND PESOS (P50,000.00) as indemnity for his death jointly and A Those incise wounds were caused by a sharp instrument
solidarily with Odilon Lagliba who was earlier convicted herein. With cost like a knife or any similar instrument.
[12]
against the accused.
Q Now you also found out from the body of the victim eleven
stab wounds?
In the case at bar, the appellant assails the decision of the trial
court contending that: A Yes, sir.
I
Q Now, tell the court in which part of the body of the victim witnesses and the probative weight thereof is given high respect, if not
where these eleven stab wounds [are] located? conclusive effect, by the appellate court.
A Shall I go one by one, all the eleven stab wounds? The appellant argues that the prosecution failed to prove that he
conspired with Ronnie and Odilon in stabbing the victim to death. He
Q All the eleven stab wounds?
contends that for one to be a conspirator, his participation in the criminal
A One stab wound was located at the front portion of the resolution of another must either precede or be concurrent with the
chest, right side. Another stab wound was located criminal acts. He asserts that even if it were true that he was present at
also on the chest left side, another stab wound was the situs criminis and that he stabbed the victim, it was Odilon who had
located at the antero lateral aspect, its the front of the already decided, and in fact fatally stabbed the victim. He could not have
chest almost to the side. And also another one, also conspired with Odilon as the incident was only a chance encounter
at the chest, another stab wound was at the left side between the victim, the appellant and his co-accused. In the absence of
of the chest and another one was at the lumbar region a conspiracy, the appellant cannot be held liable as a principal by direct
of the abdomen left side or where the left kidney is participation. Elisa could not categorically and positively assert as to
located, lumbar area. Another one at the side of the what part of the victims body was hit by whom, and how many times the
chest, left side of the chest. Another stab wound in victim was stabbed by the appellant. He asserts that he is merely an
the abdomen, another stab wound at the left accomplice and not a principal by direct participation.
arm. Another one at the left forearm and the last one
We are not persuaded by the ruminations of the appellant.
in the autopsy report is located at the left arm. These
are all the eleven stab wounds sustained by the There is conspiracy when two or more persons agree to commit a
victim. felony and decide to commit it.[18] Conspiracy as a mode of incurring
criminal liability must be proved separately from and with the same
A The instrument used was a sharp pointed edge or a single
quantum of proof as the crime itself. Conspiracy need not be proven by
bladed instrument like a knife, kitchen knife, balisong
direct evidence. After all, secrecy and concealment are essential
or any similar instrument.
features of a successful conspiracy. It may be inferred from the conduct
Q Considering the number of stab wounds, doctor, will you of the accused before, during and after the commission of the crime,
tell us whether there were several assailants? showing that they had acted with a common purpose and
design.[19]Conspiracy may be implied if it is proved that two or more
A In my opinion, there were more than one assailants (sic)
persons aimed by their acts towards the accomplishment of the same
here because of the presence of different types of
unlawful object, each doing a part so that their combined acts, though
stab wounds and lacerated wounds. This lacerated
apparently independent of each other, were, in fact, connected and
wound could not have been inflicted by the one
cooperative, indicating a closeness of personal association and a
holding the one which inflicted the instrument . .
concurrence of sentiment.[20] There may be conspiracy even if an
(discontinued) which inflicted the stab wounds.
offender does not know the identities of the other offenders,[21] and even
Q So there could have been two or three assailants? though he is not aware of all the details of the plan of operation or was
not in on the scheme from the beginning.[22] One need only to knowingly
A More than one.[15]
contribute his efforts in furtherance of it.[23] One who joins a criminal
The physical evidence is a mute but eloquent manifestation of the conspiracy in effect adopts as his own the criminal designs of his co-
veracity of Elisas testimony.[16] conspirators. If conspiracy is established, all the conspirators are liable
as co-principals regardless of the manner and extent of their
Fourth. Even the appellant himself declared on the witness stand
participation since in contemplation of law, the act of one would be the
that he could not think of any reason why Elisa pointed to him as one of
act of all.[24] Each of the conspirators is the agent of all the others.[25]
the assailants. In a litany of cases, we have ruled that when there is no
showing of any improper motive on the part of a witness to testify falsely To hold an accused guilty as a co-principal by reason of
against the accused or to falsely implicate the latter in the commission conspiracy, he must be shown to have performed an overt act in
of the crime, as in the case at bar, the logical conclusion is that no such pursuance or furtherance of the conspiracy.[26] The mere presence of an
improper motive exists, and that the testimony is worthy of full faith and accused at the situs of the crime will not suffice; mere knowledge,
credence. [17] acquiescence or approval of the act without cooperation or agreement
to cooperate on the part of the accused is not enough to make him a
Fifth. The trial court gave credence and full probative weight to
party to a conspiracy. There must be intentional participation in the
Elisas testimony. Case law has it that the trial courts calibration of the
transaction with a view to the furtherance of the common design and
testimonial evidence of the parties, its assessment of the credibility of
purpose.[27]Conspiracy to exist does not require an agreement for an
appreciable period prior to the occurrence. From the legal standpoint,
conspiracy exists if, at the time of the commission of the offense, the together, while Ronnie went after Julian. When he failed to overtake and
[28]
accused had the same purpose and were united in its execution. As collar Julian, Ronnie returned to where Joselito fell and hit him with a
a rule, the concurrence of wills, which is the essence of conspiracy, may hollow block and a broken bottle. Ronnie then hurriedly left. All the overt
be deduced from the evidence of facts and circumstances, which taken acts of Odilon, Ronnie and the appellant before, during, and after the
together, indicate that the parties cooperated and labored to the same stabbing incident indubitably show that they conspired to kill the victim.
[29]
end.
The victim died because of multiple stab wounds inflicted by two
Even if two or more offenders do not conspire to commit homicide or more persons. There is no evidence that before the arrival of Ronnie
or murder, they may be held criminally liable as principals by direct and the appellant at the situs criminis, the victim was already dead. It
participation if they perform overt acts which mediately or immediately cannot thus be argued that by the time the appellant and Ronnie joined
cause or accelerate the death of the victim, applying Article 4, paragraph Odilon in stabbing the victim, the crime was already consummated.
1 of the Revised Penal Code:
All things considered, we rule that Ronnie and the appellant
conspired with Odilon to kill the victim; hence, all of them are criminally
Art. 4. Criminal liability. Criminal liability shall be incurred:
liable for the latters death. The appellant is not merely an accomplice
but is a principal by direct participation.
1. By any person committing a felony (delito) although the wrongful act
done be different from that which he intended. Even assuming that the appellant did not conspire with Ronnie
and Odilon to kill the victim, the appellant is nevertheless criminally liable
In such a case, it is not necessary that each of the separate as a principal by direct participation. The stab wounds inflicted by him
injuries is fatal in itself. It is sufficient if the injuries cooperated in bringing cooperated in bringing about and accelerated the death of the victim or
about the victims death. Both the offenders are criminally liable for the contributed materially thereto.[34]
same crime by reason of their individual and separate overt criminal
The trial court correctly overruled the appellants defense of
acts.[30] Absent conspiracy between two or more offenders, they may be
alibi. Alibi is a weak, if not the weakest of defenses in a criminal
guilty of homicide or murder for the death of the victim, one as a principal
prosecution, because it is easy to concoct but hard to disprove. To serve
by direct participation, and the other as an accomplice, under Article 18
as basis for acquittal, it must be established by clear and convincing
of the Revised Penal Code:
evidence. For it to prosper, the accused must prove not only that he was
absent from the scene of the crime at the time of its commission, but
Art. 18. Accomplices. Accomplices are the persons who, not being
also that it was physically impossible for him to have been present
included in Article 17, cooperate in the execution of the offense by
then.[35] In this case, the appellant avers that at the time of the stabbing
previous or simultaneous acts.
incident, he was resting in the house of his cousin at 606 Nueve de
Pebrero Street as he was suffering from stomach pain due to his
To hold a person liable as an accomplice, two elements must
ulcer.[36] But the appellant failed to adduce any medical certificate that
concur: (a) the community of criminal design; that is, knowing the
he was suffering from the ailment. Moreover, Elisa positively identified
criminal design of the principal by direct participation, he concurs with
the appellant as one of the men who repeatedly stabbed the victim. The
the latter in his purpose; (b) the performance of previous or
appellants defense of alibi cannot prevail over the positive and
simultaneous acts that are not indispensable to the commission of the
straightforward identification of the appellant as one of the victims
crime.[31] Accomplices come to know about the criminal resolution of the
assailants. The appellant himself admitted that his cousins house, the
principal by direct participation after the principal has reached the
place where he was allegedly resting when the victim was stabbed, was
decision to commit the felony and only then does the accomplice agree
merely ten to fifteen meters away from the scene of the
to cooperate in its execution. Accomplices do not decide whether the
stabbing. Indeed, the appellants defense of denial and alibi,
crime should be committed; they merely assent to the plan of the
unsubstantiated by clear and convincing evidence, are negative and
principal by direct participation and cooperate in its
self-serving and cannot be given greater evidentiary weight than the
accomplishment.[32] However, where one cooperates in the commission
positive testimony of prosecution eyewitness Elisa Rolan. [37]
of the crime by performing overt acts which by themselves are acts of
execution, he is a principal by direct participation, and not merely an The appellants defenses must crumble in the face of evidence that
accomplice.[33] he fled from the situs criminis and later left his house. The records show
that despite being informed that he was sought after by the authorities
In this case, Odilon all by himself initially decided to stab the
as a suspect for the killing of the victim, the appellant suddenly and
victim. The appellant and Ronnie were on the side of the
inscrutably disappeared from his residence at Nueve de Pebrero. As
street. However, while Odilon was stabbing the victim, the appellant and
early as May 5, 1988, a subpoena for the appellant was returned
Ronnie agreed to join in; they rushed to the scene and also stabbed the
unserved because he was out of town.[38] The appellants own witness,
victim with their respective knives. The three men simultaneously
stabbed the hapless victim. Odilon and the appellant fled from the scene
Julian Cadion, testified that the appellant had left and was no longer Bienvenido Muoz, the victim was stabbed, not just once, but eleven
seen at Nueve de Pebrero after the incident, thus: times mostly on the chest and the abdominal area. Six of the stab
wounds were fatal, causing damage to the victims vital internal
Q So, how long did you stay at 606 Nueve de Pebrero after
organs.[42]
February 5, 1988?
The aggravating circumstance of abuse of superior strength is
A One week only, sir, and then three weeks after, I returned
absorbed by treachery.[43] There is no mitigating circumstance that
to Nueve de Pebrero.
attended the commission of the felony. The penalty for murder under
Q The whole week after February 5, 1988, was Rene Pilola Article 248 of the Revised Penal Code is reclusion perpetua to
still living at 606 Nueve de Pebrero? death.Since no aggravating and mitigating circumstances attended the
commission of the crime, the proper penalty is reclusion perpetua,
A I did not see him anymore, sir.
conformably to Article 63 of the Revised Penal Code.
Q And then three weeks thereafter, you went back to Nueve
de Pebrero. Is that what you were then saying?
Civil Liabilities of the Appellant
A Yes, sir.
SO ORDERED.
The trial court correctly convicted the appellant of murder qualified
Bellosillo, (Chairman), and Quisumbing, JJ., concur.
by treachery. Abuse of superior strength likewise attended the
Austria-Martinez, J., on official leave.
commission of the crime. There is treachery when the offender commits
any of the crimes against persons, employing means, methods or forms
in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the
offended party might make. The essence of treachery is the swift and
unexpected attack on the unarmed victim without the slightest
provocation on his part.[41] In this case, the attack on the unarmed victim
was sudden. Odilon, without provocation, suddenly placed his arm
around the victims neck and forthwith stabbed the latter. The victim had
no inkling that he would be attacked as he was attempting to pacify
Edmar and Julian. Ronnie and the appellant, both also armed with
deadly weapons, rushed to the scene and stabbed the victim, giving no
real opportunity for the latter to defend himself. And even as the victim
was already sprawled on the canal, Ronnie bashed his head with a
hollow block. The peacemaker became the victim of violence.