G.R. Nos.
108172-73 May 25, 1994 The cases were jointly tried after the accused had pleaded not guilty upon his arraignment. 4 The
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CONRADO LUCAS Y BRIONES, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
DAVIDE, JR., J.:
In a sworn statement 1 taken on 16 February 1991, Chanda Lucas y Austria, then seventeen years
old, charged her natural father, accused Jose Conrado Lucas, of attempted rape committed against
her on 12 February 1991. She revealed therein that she was first raped by him when she was only
nine years old, or, as disclosed in a handwritten note at the left-hand margin of her sworn statement,
"noong Nov. 26, 1982 . . . at naulit ng maraming beses."
On 19 February 1991, Chanda, assisted by her mother, Ofelia Austria-Lucas, filed two separate sworn
criminal complaints for rape 2 and for attempted rape 3 against her father with the Regional Trial
Court of Quezon City. The complaints, docketed as Criminal Cases Nos. Q-91-18465 and Q-91-18466,
were subsequently assigned to Branch 104 of the said court.
The accusatory portion of the complaint for rape in Criminal Case
No. Q-91-18465 reads:
That on or about the 26th day of November 1982 and sometime thereafter in Quezon City, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and
by means of violence and intimidation did then and there, wilfully, unlawfully and feloniously have
sexual intercourse with the undersigned CHANDA LUCAS Y AUSTRIA, who was then nine (9) years
old, now 17 yrs. of age, against her will, to her damage and prejudice in such amount as may be
awarded to her under the provisions of the New Civil Code.
while that for attempted rape in Criminal Case No. Q-91-18466 reads:
That on or about the 12th day of February 1991, in Quezon City, Philippines and within the
jurisdiction of this Honorable Court, the above named accused, did then and there wilfully, unlawfully
and feloniously with lewd design and by means of force and intimidation, commence the commission
of the crime of rape directly by overt acts by then and there taking advantage of complainant's tender
age and innocence, by then and there putting his hand inside the panty of the undersigned and
mashing her vagina while his other hand was pressing her nipples and at the same time kissing her
on the lips, face and neck, thereafter accused placed himself on top of her but said accused did not
perform all the acts of execution which should produce the said offense of rape by reason of the fact
that the brother and sister of the undersigned was awakened and shouted upon the accused, a cause
other than the spontaneous desistance of the said accused, that the aforesaid act of the said accused
was done against the will of the undersigned, to her damage and prejudice in such amount as may be
awarded to her under the provisions of the New Civil Code.
prosecution presented as witnesses the complainant herself; her sister, Cynthia; and Dr. Emmanuel
Aranas. The defense presented only the accused.
Complainant Chanda Lucas, who was born on 2 June 1973, 5 testified that their0 house at 23-X
Daropa Road, Baesa, Quezon City, has only one bedroom. On 26 November 1983, she was sleeping in
the bedroom with her brother and sisters. Their mother did not sleep in their house at that time. At
about 2:00 to 3:00 a.m., she awoke and realized that her father was removing her panty and shorts.
He cautioned her to keep quiet. Then, her father, who was already naked, went on top of her and
placed his sexual organ inside her vagina. She was hurt but did not resist because her father
threatened to kill her. Only her older sister Cynthia witnessed the incident. Chanda reported the
incident to her mother and her aunt but the former did nothing. When her aunt said that her father
should be jailed, her mother did not agree. 6
The 26 November 1983 incident was only the first of many atrocities. Since then, her father had been
repeatedly molesting her, especially when her mother was not around. The last assault on her
womanhood occurred on 12 February 1991 when she was already seventeen years old. Before he had
sex with her at 3:00 a.m. on 12 February 1991, he first moved her brothers and sisters, who were
sleeping in the same room with her, to another place. She did not resist because he had a balisong
with him and told her that he can take her life anytime. After the sexual assault, he stood up holding
his balisong 7 and again said that she has only one life and that he can take it anytime.
On the morning of 16 February 1992, in the company of her mother and uncle, she reported the
incident to the police in their area. The police investigator questioned her and her sworn statement
(Exhibit "D") was taken. In the afternoon of that day, she submitted to a medical examination at
Camp Crame and a medical certificate was issued. 8
Cynthia Lucas Viado, the elder sister of Chanda, testified that she witnessed the incident of 26
November 1983. She was then thirteen years old while Chanda was only nine years old. She saw his
father on top of Chanda, then she closed her eyes and covered her face with a blanket. She reported
the incident and the fact that she saw blood on the underwear of Chanda to her aunt Neneng and her
mother; the former was very angry upon learning of the incident but the latter did not believe her; at
that time, her mother loved her father dearly. 9
On cross- examination, Cynthia declared that her father intended to sexually abuse her on 26
November 1983 but because she resisted, her father instead raped Chanda. She was not able to help
Chanda because she was afraid of her father. Their brother and another sister were not aware of the
incident and they did not wake them up because they were ashamed of their neighbors. 10
Dr. Emmanuel Aranas testified that he examined the complainant on 16 February 1991 at the Crime
Laboratory Services at Camp Crame pursuant to a letter-request 11 from Capt. Jaime Q. Peralta of
the Central Police district, Quezon City. His examination of her genitalia disclosed healed lacerations,
but he could not determine when the lacerations were inflicted or sustained. He concluded that the
complainant has had several sexual experiences and was no longer a virgin. 12 He issued a written
report of his findings. 13 On cross-examination, he declared that he found no sperm on the organ of
the complainant and that there were no signs of recent trauma or physical injuries on her. 14
On the witness stand, the accused testified that he and Chanda's mother, Ofelia Austria, are not
married; however, since 1969, they had been living together as husband and wife until 1972, when
he was detained for alleged gunrunning and when Ofelia and the children moved to Cotabato. They
were reunited in 1977. He denied having raped his second daughter, Chanda, and alleged that the
brothers and sisters of Ofelia, particularly Leonardo Austria, were all angry at him and instigated the
filing of the fabricated charges against him. He further declared that Ofelia was angry at him because
he intervened in guiding the life of Chanda. He could not recall anymore where he was on 26
November 1983. However, on 12 February 1991, he and Ofelia quarreled about Chanda's frequent
late arrivals from school and, because of the quarrel, he "physically harmed" both of them. 15
On 28 October 1992, the trial court promulgated its decision 16 in the two cases finding the accused
guilty beyond reasonable doubt of two crimes of rape. The dispositive portion of the decision reads:
WHEREFORE, judgment is rendered as follows:
In Crim. Case No. Q-91-18465, the prosecution was able to establish the guilt of the accused beyond
reasonable doubt of the crime of rape as charged in the information, he is hereby sentenced to suffer
the penalty of RECLUSION PERPETUA plus all the accessory penalties provided by law.
In Crim. Case No. Q-91-18466, the prosecution was able to establish the guilt of the accused beyond
reasonable doubt of the crime of rape as charged in the information, he is hereby sentenced to suffer
the penalty of RECLUSION PERPETUA, plus all the accessory penalties provided by law.
Accused is ordered to pay the victim the sum of P30,000.00 as actual and moral damages without
subsidiary imprisonment in case of insolvency. 17
On 4 November 1992, the accused filed a notice of appeal. 18 In his brief submitted to this Court, he
alleges that the trial court erred:
I
. . . IN GIVING UNMERITED VERACITY TO THE INCREDIBLE, UNPERSUASIVE AND UNRELIABLE
TESTIMONIES OF THE PROSECUTION WITNESSES AND IN DISREGARDING THE EVIDENCE ADDUCED
BY THE DEFENSE.
II
. . . IN CONVICTING HIM OF THE CRIME OF RAPE IN CRIMINAL CASE NO. Q-91-18466 INASMUCH AS
THE SAME IS MORE SERIOUS THAN THE OFFENSE CHARGED.
III
. . . IN CONVICTING ACCUSED-APPELLANT OF THE CRIME OF RAPE IN CRIMINAL CASE NO Q-91-
18465 DESPITE THE FACT THAT HIS GUILT WAS NOT PROVED BEYOND REASONABLE DOUBT. 19
As to the first assigned error, the accused asserts that the conduct of his daughters, Chanda and
Cynthia, after the alleged first sexual abuse casts doubt on their credibility. It is hard to believe that if
Chanda were indeed raped by him when she was only nine years old and repeatedly thereafter, she
would report the abuses only when she was seventeen years old. Several remedies were available to
her and she had relatives who could extend their help. 20
He also contends that the testimony of Cynthia is not convincing; it was contrary to human
experience and conduct for her to simply close her eyes and cover her face with a blanket upon
witnessing the rape of her younger sister by their own father instead of helping Chanda. If she was
afraid of her father at that time, she could have convinced Chanda to temporarily leave their house
and seek shelter with her relatives. It was also unnatural for her to abandon Chanda when, as she
claims, she fully knew the bestial tendencies of her father. 21 As to his wife, Ofelia, he attributes to
her an ulterior motive when she consented to the filing of the charges against him. Except for the
souring of their relationship which ended in their separation, he finds no possible explanation why
Ofelia believed Chanda's report on the 12 February 1991 incident when she, Ofelia, refused to heed
Chanda and Cynthia's report concerning the 26 November 1983 incident.
Anent the second assigned error, he contends that he could not be validly convicted of rape in
Criminal Case No. Q-91-18466 under a complaint for attempted rape only. He cites the rule that when
the offense proved is more serious than that charged, the accused can only be convicted of the
offense charged.
The appellee, through the Office of the Solicitor General, prays that the judgment of conviction in
Criminal Case No. Q-91-18465 be affirmed in toto. However, it submits that the accused can be
convicted only of attempted rape in Criminal Case No. Q-91-18466. The appellee argues that the trial
court correctly gave credence to the testimony of Chanda as it is "positive, straightforward and clearly
revelatory only of the truth of the facts she experienced, without any dubious motive shown why she
would bear false witness against appellant." 22 The reaction which the accused expected of Chanda
after the first rape and which she did not so manifest does not necessarily lead to a conclusion that
she fabricated her story. As Chanda's father, he exercised absolute authority and moral influence over
her. Moreover, at the tender age of nine, she was totally helpless and defenseless. And regarding the
imputed motive of Chanda's mother, the same is too trivial to prompt her to falsely charged him with
a grave crime.
The first and third assigned errors raise a question of fact which hinges on the credibility of the
prosecution witnesses. The second involves a question of law.
In rape cases, this Court has been guided by three well-entrenched principles: (1) an accusation for
rape can be made with facility; it is difficult to prove but more difficult for the person accused, though
innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons
are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and
(3) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to
draw strength from the weakness of the evidence for the defense. 23
Conclusions as to the credibility of witnesses in rape cases lie heavily on the sound judgment of the
trial court. Accordingly, in the appreciation of the evidence, the appellate court accords due deference
to the trial court's views on who should be given credence since the latter is in a better position to
decide the question of the credibility of witnesses, having seen and heard these witnesses and
observed their deportment and manner of testifying during the trial. The trial court's findings
concerning the credibility of witnesses carry great weight and respect and will be sustained by the
appellate court unless the trial court overlooked, misunderstood or misapplied some facts or
circumstances of weight and substance which would have affected the result of the case. 24
After a careful examination of the records and the evidence, we are unable to find any cogent reason
to disturb the finding of the trial court that the accused raped his daughter, Chanda, on 26 November
1983 and 12 February 1991.
As regards the first charge, there is, however, a variance between the evidence presented and the
allegations of the complaint. The complaint in Criminal Case No. Q-91-18465 charges the accused
with the crime of rape committed on 26 November 1982. Both Chanda and Cynthia, however, testified
that the incident took place on 26 November 1983. 25 The accused offered no objection to such
evidence. Consequently, the variance was not fatal to the prosecution.
In United States vs. Arcos, 26 this Court ruled:
Where time or place or any other fact alleged is not an essential element of the crime charged,
conviction may be had on proof of the commission of the crime, even if it appear that the crime was
not committed at the precise time or placed alleged, or if the proof fails to sustain the existence of
some immaterial fact set out in the complaint, providing it appears that the specific crime charged
was in fact committed prior to the date of the filing of the complaint or information within the period
of the statute of limitations, and at a place within the jurisdiction of the court. (U.S. vs. Smith, and
cases cited, 2 Phil. Rep., 20).
The unobjected testimony of another date of the commission of the crime charged in Criminal Case
No. Q-91-18465 could even be the basis for an amendment of the complaint to make it conform to
the evidence. 27
Section 14, Rule 110 of the Rules of Court also provides:
Sec. 14. Amendment. — The information or complaint may be amended, in substance and form,
without leave of court, at any time before the accused pleads; and thereafter and during the trial as
to all matters of form, by leave and at the discretion of the court, when the same can be done without
prejudice to the rights of the accused.
xxx xxx xxx
Chanda was less than twelve years old when she was raped by the accused on 26 November 1983.
Since she was born on 2 June 1973, she was then exactly ten years, five months, and twenty-four
days old.
Article 335 of the Revised Penal Code reads:
Art. 335.When and how rape is committed. — Rape is committed by having carnal knowledge of a
woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve (12) years of age, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be present.
xxx xxx xxx
The third paragraph is known as statutory rape or the unlawful carnal knowledge of a woman below
12 years of age. 28 Otherwise stated, carnal knowledge alone is sufficient for conviction as the
presence of any of the circumstances mentioned in paragraphs 1 and 2 of Article 335 is not required.
29
As found by the trial court and fully supported by the evidence, the accused had carnal knowledge of
his daughter Chanda — then below twelve years old — on 26 November 1983. We are not persuaded
by the arguments of the accused that if indeed she were raped on that date and several times
thereafter, she should not have kept her silence until she was seventeen years old since she had all
the available remedies for redress as well as relatives who could help her. The equanimity or the
wisdom of more mature persons cannot be expected from a young and immature girl like Chanda. We
have said before that the workings of a human mind when placed under emotional stress are
unpredictable and that people react differently to various situations. 30
In addition to her tender age and immaturity, Chanda was, to say the least, a victim of unfavorable
circumstances not of her own making. These prevented her from exposing earlier the evil deeds of
her father. All that she could proudly claim was a beautiful name — Chanda. She had no decent
home. Her father and her mother were not married and were untrammeled by the bonds of lawful
wedlock. When she was born, her father was under detention for gunrunning and it was only when
she was four years old (1977) when he rejoined his "family." Since then, all the members of the
family slept in one room. Chanda had no choice of another home, for it does not appear that another
was available to the family or that she was prepared to leave it because she had the means to face
life alone or that a kind soul had offered her shelter. She was a victim of poverty and a virtual captive
in the only "home" her natural parents could provide, for she was entirely dependent upon them.
Verily, she was completely under the moral ascendancy and control of her father and the fear alone of
a harsher life outside such a "home" and of what her father would do if she would expose his evil
deeds, made her suffer in silence for a long time the excruciating pains his assaults inflicted upon her.
Then too, although she told her mother about the abuse committed by her father on 26 November
1983, 31 her mother only got angry but did not do anything. Chanda must have felt despair at such
indifference.
Her delay in reporting the sexual assaults to the authorities is thus understandable and does not
affect her credibility. We do not believe that she would fabricate a story of defloration against her own
father, make public her painful and humiliating experiences which are better kept in secret or
forgotten, allow her private parts to be examined, and eventually bring to shame her own family and
jeopardize her chances of marriage unless she was not telling the truth and was motivated by nothing
but the desire to obtain justice for the grievous wrongs committed against her. 32
There was a consummated rape on 12 February 1991. According to Chanda's testimony, at 3:00 a.m.
that day, the accused, who had a balisong with him, laid down beside her, threatened her that she
had only one life which he can take away any time; removed her shorts and panty and then moved
on top of her and inserted "his organ to her organ." Thereafter, he stood up holding his balisong and
reiterated his earlier threat. 33
Considering, however, that the complaint for this incident subject of Criminal Case No. Q-91-18466
charges the accused with the crime of attempted rape, then, as correctly pointed out by the accused
in his second assigned error and concurred in by the Office of the Solicitor General, he cannot be
convicted of consummated rape.
Section 4, Rule 120 of the Rules of Court provides that "[w]hen there is variance between the offense
charged in the complaint or information, and that proved or established by the evidence, and the
offense as charged is included in or necessarily includes the offense proved, the accused shall be
convicted of the offense proved included in that which is charged, or of the offense charged included
in that which is proved." The offense charged in Criminal Case
No. Q-91-18466 (attempted rape) is necessarily included in the offense that was proved There should also be awards for damages in each of the two cases.
(consummated rape). Accordingly, the accused should be convicted of attempted rape only. The
WHEREFORE, the challenged Decision of 28 October 1992 of Branch 104 of the Regional Trial Court of
penalty for attempted rape is prision mayor, which is two degrees lower than that provided by law for
Quezon City in Criminal Case
rape. 34 The accused is entitled to the benefits of the Indeterminate Sentence Law, and for attempted
rape he may be sentenced to a penalty whose minimum should be within the range of prision No. Q-91-18465 and Criminal Case No. Q-91-18466 is hereby AFFIRMED, subject to the modifications
correccional and whose maximum should be within the range range of prision mayor, taking into indicated above. As modified:
account the modifying circumstances. The alternative circumstance of relationship provided for in
(1) In Criminal Case No. Q-91-18465, accused JOSE CONRADO LUCAS y BRIONES is hereby
Article 15 of the Revised Penal Code should be appreciated against the accused considering that the
sentenced to suffer the penalty of Thirty-four (34) years, Four (4) months and One (1) day of
offended party, Chanda, is his descendant. In crimes against chastity, such as rape, relationship is
reclusion perpetua and to pay the offended party the sum of P50,000.00 as civil indemnity; and
aggravating. 35
(2) In Criminal Case No. Q-91-18466, said accused is hereby found GUILTY beyond reasonable
Prior to R.A. No. 7659, 36 the presence of modifying circumstances would not affect the penalty of
doubt of the crime of ATTEMPTED RAPE only and is hereby sentenced to suffer an indeterminate
reclusion perpetua prescribed for the crime of rape because such a penalty was then indivisible and
penalty ranging from Four (4) years, TWO (2) months and One (1) day of prision correccional
under Article 63 of the Revised Penal Code, when the law prescribes a single indivisible penalty, it
maximum as minimum to Ten (10) years and one (1) day of prision mayor maximum as maximum
shall be applied by the courts regardless of any mitigating or aggravating circumstances that may
and to pay the offended party the sum of P30,000.00 as civil indemnity.
have attended the commission of the deed. However, pursuant to Section 21 of R.A. No. 7659, which
amended Article 27 of the Revised Penal Code, reclusion perpetua has now a defined duration, i.e., Costs against the accused-appellant.
from twenty (20) years and one (1) day to forty (40) years. There is, however, no corresponding
amendment to Article 76 of the same Code for the purpose of converting reclusion perpetua into a SO ORDERED
divisible penalty with three specific period — minimum, medium, and maximum — and including it in Bellosillo and Quiason, JJ., concur.
the table provided therein showing the duration and the time included in each of the periods.

It may thus be said that although the law has now fixed the duration of reclusion perpetua, it did not
make explicit its intention to convert it into a divisible penalty. In any event, Article 65 of the Code Cruz and Kapunan, JJ., are on leave.
which provides: G.R. Nos. 108172-73 January 9, 1995
Art. 65. Rules in cases in which the penalty is not composed of three periods. — In cases in which the
penalty prescribed by law is not composed of three periods, the courts shall apply the rules contained
in the foregoing articles, dividing into three equal portions of time included in the penalty prescribed,
and forming one period of each of the three portions may be applied. Accordingly, the time included
in the penalty of reclusion perpetua (twenty [20] years and one [1] days to forty [40] years) can be
divided into three equal portions, with each composing a period. The periods of reclusion perpetua
would then be as follows:

minimum — 20 years and 1 day to 26 years and 8 months

medium — 26 years, 8 months and 1 day to 33 years and 4 months

maximum — 34 years, 4 months and 1 day to 40 years

Taking into account the presence of the aggravating circumstance of relationship in Criminal Case No.
Q-91-18465, the accused may finally be sentenced to thirty-four (34) years, four (4) months and one
(1) day of reclusion perpetua.

Considering again such aggravating circumstance, the accused may be sentenced in Criminal Case
No. Q-91-18466 to an indeterminate penalty ranging from four (4) years, two (2) months and one (1)
day of prision correccional maximum as minimum to ten (10) years and one (1) day of prision mayor
maximum as maximum.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CONRADO LUCAS Y BRIONES, accused-appellant.
RESOLUTION
DAVIDE, JR., J.:
In the decision in this case, promulgated on 25 May 1994, the First Division touched on the nature of
the penalty of reclusion perpetua in the light of Section 21 of R.A. No. 76591 which amended Article
27 of the Revised Penal Code by specifically fixing the duration of reclusion perpetua at twenty (20)
years and one (1) day to forty (40) years. It opined that since no corresponding amendment to Article
76 of the Revised Penal Code was made, the said laws has not made explicit an intention to convert
reclusion perpetua into a divisible penalty. Nevertheless, it applied Article 65 of the Revised Penal
Code2 and stated:
Accordingly, the time included in the penalty of reclusion perpetua (twenty [20] years and one [1]
day to forty [40] years) can be divided into three equal portions with each composing a period. The
periods of reclusion perpetua would then be as follows:
minimum
— Purposes." The substitute amendment sought to amend (a) Article 25 of the Revised Penal Code by
20 years and 1 day to 26 years and 8 months
medium
— Afflictive Penalties:
26 years, 8 months and 1 day to 33 years and 4 months
maximum
— and (b) Article 27 of the same Code by inserting therein the penalty of life imprisonment and
34 years, 4 months and 1 day to 40 years
Taking into account the presence of the aggravating circumstance of relationship in Criminal Case No.
Q-91-18465, the accused may finally be sentenced to thirty-four (34) years, four (4) months and one
(1) day of reclusion perpetua.
It then modified the challenged decision of the trial court by changing the penalty in Criminal Case
No. Q-91-18465 from reclusion perpetua, as imposed by the trial court, to "imprisonment of 34 years,
4 months and 1 day of reclusion perpetua."
In a motion for clarification seasonably filed by the appellee on 28 June 1994 which was not opposed
by the accused-appellant in his comment, the appellee asks the Court to correct the duration of the
maximum period of reclusion perpetua from thirty-four (34) years, four (4) months and one (1) day
to forty (40) years, as stated in the decision, to thirty-three (33) years, four (4) months and one (1)
day to forty (40) years.
Since the issue of whether the amendment of Article 27 of the Revised Penal Code by Section 21 of
R.A. No. 7659 has made reclusion perpetua a divisible penalty is one of first impression and of
sufficient importance, the First Division referred the motion for clarification to the Court en banc. The
latter accepted the referral.
After deliberating on the motion and re-examining the legislative history of R.A. No. 7659, the Court
concludes that although Section 17 of R.A. No. 7659 has fixed the duration of reclusion perpetua from
twenty (20) years and one (1) day to forty (40) years, there was no clear legislative intent to alter its
original classification as an indivisible penalty. It shall then remain as an indivisible penalty.
R.A. No. 7659 is a consolidation of Senate Bill (SB) No. 8913 and House Bill (HB) No. 62.4 SB No. 891
seeks to amend Article 27 of the Revised Penal Code by inserting therein what are to be considered
heinous crimes and to penalize these not with the death penalty, but which reclusion perpetua only,
with the qualification that "any person sentenced to reclusion perpetua for . . . [such heinous] crimes
under this Code shall be required to serve thirty (30) years, without entitlement to good conduct time
allowance and shall be considered for executive clemency only after service of said thirty (30) years."
HB No. 62 defines and enumerates the heinous crimes and seeks to penalize them with the death
penalty.
An amendment by substitution to SB No. 891 was introduced by the Senate Special Committee on
Death Penalty. The amendment was entitled "An Act to Impose the Death Penalty on Certain Heinous
Crime, Amending for that Purpose some Articles of Act No. 3815, as Amended, and for other
providing in the scale of penalties the following:
CAPITAL PUNISHMENT: DEATH
LIFE IMPRISONMENT
Reclusion Perpetua
Reclusion Temporal
providing a specific duration therefor as well as for reclusion perpetua. The proposed amended Article
27 pertinently reads as follows:
Art. 27. LIFE IMPRISONMENT. — THE PENALTY OF LIFE IMPRISONMENT SHALL BE FROM THIRTY
YEARS AND ONE DAY TO FORTY YEARS.
RECLUSION PERPETUA — THE PENALTY OF RECLUSION PERPETUA SHALL BE FROM TWENTY YEARS
AND ONE DAY TO THIRTY YEARS.
Thus, life imprisonment, therefore a penalty imposed by special penal statutes, was sought to be
incorporated as penalty in the revised Penal Code with a specific duration.
In his sponsorship of this substitute bill, Senator Arturo M. Tolentino explained the incorporation of
life imprisonment as follows:
But a very basic amendment was made, and that is, an amendment that will create a new penalty,
known in this bill as life imprisonment. The new penalty was created in order to enable the committee
to provide, in some crimes, a three-grade penalty that would be composed of reclusion perpetua, as
now provided by the Revised Penal Code, as the lowest grade; on top of that, would be life
imprisonment; and the third highest grade would be death penalty. With this new grade of penalty, it
became possible for this bill now under consideration to impose a penalty ranging from reclusion
perpetua to death, composed of actually three periods or
grades.5
However the Bicameral Conference Committee eliminated from the proposed amendment of Article 27
the penalty of life imprisonment but extended the duration of reclusion perpetua from twenty (2)
years and one (1) day to forty (40) years. Thus, in his sponsorship of the Conference Committee
report on both the substitute SB No. 891 and HB No. 62, Senator Tolentino stated:
By this, Mr. President, we have this new consolidated session that is before the Members of this
Chamber. There is one part or one portion of the Senate version that we have agreed to be eliminated
and that is the creation of the new penalty known as "life imprisonment." Even in this Chamber, there
were some doubts as to the creation of this new penalty of life imprisonment because reclusion
perpetua, which is in the Revised Penal Code and retained in this bill, also means the same thing. It is
a perpetual imprisonment.
So in order to still accommodate the increase of imprisonment by means of life imprisonment — while
we eliminated the new penalty of life imprisonment which would last from 30 years and one day to
forty years — what we did was simply to extend the period of reclusion perpetua by adding 30 to 40
years imprisonment to the original 20 to 30 years, making the reclusion perpetua in this new bill
range from 20 years to one day to 40 years. This would be what we had called one day before a
"flexible or divisible penalty."6
Although Senator Tolentino described reclusion perpetua as a "flexible or divisible" penalty, yet in the
portion of his sponsorship speech immediately succeeding the foregoing description, he explicitly
stated that the said penalty is one of the two indivisible penalties in the Revised Penal Code. Thus:
Instead of having three penalties in the divisible [sic] penalty, we would have only two indivisible
penalties — reclusion perpetua to death; and the principles on aggravating and mitigating
circumstances in the Revised Penal Code will be applicable to this penalty of reclusion perpetua to
death.7
At first glance, by stating that reclusion perpetua was "flexible and divisible" and then later referring
to it as one of two indivisible penalties, Senator Tolentino might have fallen into an inconsistency. If
we recall, however, what he stated in his sponsorship speech to substitute bill where, as above
adverted to, he mentioned the proposed three-grade penalty ranging from reclusion perpetua to
death, then indeed he could also be correct in the sense that such three-grade concept would in fact
be a complex penalty which would be divisible, with each grade composing a period and which could
then be governed by Article 778 of the Revised Penal Code. That Senator Tolentino had this three-
grade penalty in mind when he spoke of flexibility and divisibility and that he stood by his subsequent
statement that reclusion perpetua is one of two indivisible penalties is further borne out by his
explanations in relation to the rule in Article 63 of the Revised Penal Code on the application of
mitigating circumstance. Thus:
Senator Tolentino.
In general, Mr. President, in all of these heinous crimes, the penalty reclusion perpetua to death.
Unless otherwise provided in the bill itself, this means that the provisions on aggravating and
mitigating circumstances will apply to them. Therefore that means, if there is no mitigating and no
aggravating circumstances, the penalty of death will not be applied because under the provisions of
the revised Penal Code, when there are two indivisible penalt[ies] such as reclusion perpetua to
death, if there is no aggravating circumstance, then the penalty will be of lesser degree, which
means: life imprisonment. But even if there is an aggravating circumstance, still death penalty will
not be applied because it will still be the lesser penalty. This is how it is going to operate.
But if there is an aggravating circumstance, without any mitigating circumstance, the Revised Penal
Code provisions for the application of the higher penalty or the death penalty. That is how it is going
to operate. . . .
...
Senator Tañada.
Mr. President, permit me to clarify the matter further. The Gentleman is saying that the principle of
mitigating and aggravating circumstances is applicable in general to all these crimes listed in this
consolidated version. That means that, first, if there is no aggravating circumstance and there is no
there is no mitigating circumstance, then the crime, although listed here in the measure, will not be
punished by death but by the lesser penalty of reclusion perpetua.
Senator Tolentino.
Yes, Mr. President.
Senator Tañada.
Second, if there is an aggravating circumstance, but there is also a mitigating circumstance, then
generally speaking, that aggravating circumstance is offset by the mitigating circumstance in which
case the lesser penalty which is reclusion perpetua will be the one imposed.
Senator Tolentino.
That is right, Mr. President.9
Article 63 of the Revised Penal Code provides that in all cases in which the law prescribes a single
indivisible penalty, it shall be applied regardless of any mitigating or aggravating circumstance that
may have attended the commission of the deed, and if the law prescribes a penalty composed of two
indivisible penalties, then the greater penalty shall be applied if there is present only one aggravating
circumstance, and the lesser penalty shall be applied when the commission of the act was attended
by some mitigating circumstance but without an aggravating circumstance or when there was neither
mitigating nor aggravating circumstance, and if both mitigating and aggravating circumstances were
present, the court shall reasonably allow them to offset one another taking into account their number
and importance and then to apply preceding rules according to the result of such compensation.
Verily, if reclusion perpetua was reclassified as a divisible penalty, then Article 63 of the Revised Penal
Code would lose its reason and basis for existence. To illustrate, the first paragraph of Section 20 of
the amended R.A. No. 6425 provides for the penalty of reclusion perpetua to death whenever the
dangerous drugs involved are of any of the quantities stated therein. If Article 63 of the Code were no
longer applicable because reclusion perpetua is supposed to be a divisible penalty, then there would
be no statutory rules for determining when either reclusion perpetua or death should be the
imposable penalty. In fine, there would be no occasion for imposing reclusion perpetua as the penalty
in drug cases, regardless of the attendant modifying circumstances.
This problem revolving around the non-applicability of the rules in Article 63 assumes serious shall not exceed forty (40) years. It would be legally absurd and violative of the scales of penalties in
proportions since it does not involve only drug cases, as aforesaid. Under the amendatory sections of the Code to reckon the minimum of reclusion perpetua at thirty (30) years since there would thereby
R.A. No. 7659, the penalty of reclusion perpetua to death is also imposed on treason by a Filipino be a resultant lacuna whenever the penalty exceeds the maximum twenty (20) years of reclusion
(section 2), qualified piracy (Section 3), parricide (Section 5), murder (Section 6), kidnapping and temporal but is less than thirty (30) years. 11
serious illegal detention (Section 8), robbery with homicide (Section 9), destructive arson (Section
At most then in fixing a specific duration for reclusion perpetua , Section 21 of R.A. No. 7659 merely
10), rape committed under certain circumstances (Section 11), and plunder (Section 12).
restated the existing jurisprudence.
Now then, if Congress had intended to reclassify reclusion perpetua as a divisible penalty, then it
WHEREFORE, the Court resolved to MODIFY the decision of 25 May 1994 in this case by DELETING
should have amended Article 63 and Article 76 of the Revised Penal Code. The latter if the law on
therefrom the disquisitions on whether reclusion perpetua is a divisible penalty and SETTING ASIDE
what are considered divisible penalties under the Code and what should be the duration of the period
its division into three periods and, finally, AMENDING the dispositive portion thereof to read as
thereof. There are, as well, other provisions of the Revised Penal Code involving reclusion perpetua ,
follows:
such as Article 41 on the accessory penalties thereof and paragraphs 2 and 3 of Article 61, which
have not been touched by a corresponding amendment. WHEREFORE, the challenged decision of 28 October 1992 of Branch 104 of the Regional Trial Court of
Quezon City in Criminal Case No. Q-91-18465 and Criminal Case No. Q-91-18466 is hereby
What then may be the reason for the amendment fixing the duration of reclusion perpetua? The
AFFIRMED, subject ot the modifications above indicated. As modified:
deliberations in the Bicameral Conference Committee and in both Chambers of Congress do not
enlighten us on this, except the cryptic statement of Senior Tolentino adverted to above on the (1) In Criminal Case No. Q-91-18465, in addition to the penalty of reclusion perpetua imposed
elimination of the "new penalty" of life imprisonment by the Bicameral Conference Committee. It may, by the trial court, accused JOSE CONRADO LUCAS Y BRIONES is further ordered to indemnify the
however, be pointed out that although the Revised Penal Code did not specify the maximum of offended party, Chanda Lucas y Austria, in the sum of Fifty Thousand Pesos (P5,000.00); and
reclusion perpetua , it is apparent that the maximum period for the service of this penalty shall not
(2) In Criminal Case No. Q-91-18466, accused JOSE CONRADO LUCAS Y BRIONES is hereby
exceed forty (40) years. In People vs.
found GUILTY beyond reasonable doubt of the lesser offense of attempted rape and is hereby
Reyes, 10 this Court, speaking through Mr. Justice Florenz D. Regalado, stated: sentenced to suffer an indeterminate penalty ranging from Four (4) Years, Two (2) Months and One
(1) Day of prision correccional as minimum to Ten (10) Years and One (1) Day of prision mayor
We hold that there is legal basis, both in law and logic, for Presidential Decree No. 818 to declare that
maximum, and to indemnify the offended party, Chanda Lucas y Austria, in the sum of Thirty
any penalty exceeding twenty (20) years, or the maximum duration of reclusion temporal, is within
Thousand Pesos (P30,000.00).
the range of reclusion perpetua.
Costs against the accused-appellant.
It will be observed that Article 27 of the Code provides for the minimum and maximum ranges of all
the penalties in the Code (except bond to keep the peace which shall be for such period of time as the SO ORDERED.
court may determine) from arresto menor to reclusion temporal, the latter being specifically from
twelve years and one day to twenty years. For reclusion perpetua, however, there is no specification
as to its minimum and maximum range, as the aforesaid article merely provides that "(a)ny person
sentenced to any of the perpetual penalties shall be pardoned after undergoing the penalty for thirty
years, unless such person by reason of his conduct or some other serious cause shall be considered
by the Chief Executive as unworthy of pardon."

The other applicable reference to reclusion perpetua is found in Article 70 of the Code which, in laying
down the rule on successive service of sentences where the culprit has to serve more than three
penalties, provides that "the maximum duration of the convict's sentence shall not be more than
three-fold the length of time corresponding to the most severe of the penalties imposed upon him,"
and "(i)n applying the provisions of this rule the duration of perpetual penalties ( pena perpetua) shall
be computed at thirty years."

The imputed duration of thirty (30) years for reclusion perpetua, therefore, is only to serve as the
basis for determining the convict's eligibility for pardon or for the application of the three-fold rule in
the service of multiple penalties. Since, however, in all the graduated scales of penalties in the Code,
as set out in Article 25, 70 and 71, reclusion perpetua is the penalty immediately next higher to
reclusion temporal, it follows by necessary implication that the minimum of reclusion perpetua is
twenty (20) years and one (1) day with duration thereafter to last for the rest of the convict's natural
life although, pursuant to Article 70, it appears that the maximum period for the service of penalties
REPUBLIC ACT NO. 7659
AN ACT TO IMPOSE THE DEATH PENALTY ON CERTAIN HEINOUS CRIMES, AMENDING FOR THAT
PURPOSE THE REVISED PENAL LAWS, AS AMENDED, OTHER SPECIAL PENAL LAWS, AND FOR OTHER
PURPOSES
WHEREAS, the Constitution, specifically Article III, Section 19 paragraph (1) thereof, states
"Excessive fines shall not be imposed nor cruel, degrading or inhuman punishment inflicted. Neither
shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the
Congress hereafter provides for it. . .";
WHEREAS, the crimes punishable by death under this Act are heinous for being grievous, odious and
hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity
and perversity are repugnant and outrageous to the common standards and norms of decency and
morality in a just, civilized and ordered society;
WHEREAS, due to the alarming upsurge of such crimes which has resulted not only in the loss of
human lives and wanton destruction of property but also affected the nation's efforts towards
sustainable economic development and prosperity while at the same time has undermined the
people's faith in the Government and the latter's ability to maintain peace and order in the country;
WHEREAS, the Congress, in the justice, public order and the rule of law, and the need to rationalize
and harmonize the penal sanctions for heinous crimes, finds compelling reasons to impose the death
penalty for said crimes;
Now, therefore,
Section 1. Declaration of Policy. - It is hereby declared the policy of the State to foster and ensure not
only obedience to its authority, but also to adopt such measures as would effectively promote the
maintenance of peace and order, the protection of life, liberty and property, and the promotion of the
general welfare which are essential for the enjoyment by all the people of the blessings of democracy
in a just and humane society;
Section 2. Article 114 of the Revised Penal Code, as amended, is hereby amended to read as follows:
"Art. 114. Treason. - Any Filipino citizen who levies war against the Philippines or adheres to
her enemies giving them aid or comfort within the Philippines or elsewhere, shall be punished by
reclusion perpetua to death and shall pay a fine not to exceed 100,000 pesos."
No person shall be convicted of treason unless on the testimony of two witnesses at least to the same
overt act or on confession of the accused in open court.
Likewise, an alien, residing in the Philippines, who commits acts of treason as defined in paragraph 1
of this Article shall be punished by reclusion temporal to death and shall pay a fine not to exceed
100,000 pesos."
Section 3. Section Three, Chapter One, Title One of Book Two of the same Code is hereby amended to
read as follows:
"Section Three. - Piracy and mutiny on the high seas or in the Philippine waters
Art. 122.Piracy in general and mutiny on the high seas or in Philippine waters. - The penalty of
reclusion perpetua shall be inflicted upon any person who, on the high seas, or in Philippine waters,
shall attack or seize a vessel or, not being a member of its complement nor a passenger, shall seize
the whole or part of the cargo of said vessel, its equipment or passengers.
The same penalty shall be inflicted in case of mutiny on the high seas or in Philippine waters."
Art. 123.Qualified piracy. - The penalty of reclusion perpetua to death shall be imposed upon those
who commit any of the crimes referred to in the preceding article, under any of the following
circumstances:
1. Whenever they have seized a vessel by boarding or firing upon the same;
2. Whenever the pirates have abandoned their victims without means of saving themselves or;
3. Whenever the crime is accompanied by murder, homicide, physical injuries or rape."
Section 4. There shall be incorporated after Article 211 of the same Code a new article to read as
follows:
"Art. 211-A. Qualified Bribery. - If any public officer is entrusted with law enforcement and he
refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion
perpetua and/or death in consideration of any offer, promise, gift or present, he shall suffer the
penalty for the offense which was not prosecuted.
If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of
death."
Section 5. The penalty of death for parricide under Article 246 of the same Code is hereby restored,
so that it shall read as follows:
"Art. 246. Parricide. - Any person who shall kill his father, mother, or child, whether legitimate
of illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and
shall be punished by the penalty of reclusion perpetua to death."
Section 6. Article 248 of the same Code is hereby amended to read as follows:
"Art. 248. Murder. - Any person who, not falling within the provisions of Article 246 shall kill
another, shall be guilty of murder and shall be punished by reclusion perpetua, to death if committed
with any of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense or of means or persons to insure or afford impunity.
2. In consideration of a price, reward or promise.
3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment
or assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the use of any
other means involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an
earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse."
Section 7. Article 255 of the same Code is hereby amended to read as follows:
"Art. 255. Infanticide. - The penalty provided for parricide in Article 246 and for murder in
Article 248 shall be imposed upon any person who shall kill any child less than three days of age.
If any crime penalized in this Article be committed by the mother of the child for the purpose of
concealing her dishonor, she shall suffer the penalty of prision mayor in its medium and maximum
periods, and if said crime be committed for the same purpose by the maternal grandparents or either
of them, the penalty shall be reclusion temporal."
Section 8. Article 267 of the same Code is hereby amended to read as follows:
"Art. 267. Kidnapping and serious illegal detention. - Any private individual who shall kidnap or
detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion
perpetua to death:
1. If the kidnapping or detention shall have lasted more than three days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person kidnapped or
detained; or if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, except when the accused is any of the
parents, female or a public officer.
The penalty shall be death penalty where the kidnapping or detention was committed for the purpose
of extorting ransom from the victim or any other person, even if none of the circumstances above-
mentioned were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to
torture or dehumanizing acts, the maximum penalty shall be imposed."
Section 9. Article 294 of the same Code is hereby amended to read as follows:
"Art. 294. Robbery with violence against or intimidation of persons - Penalties. - Any person
guilty of robbery with the use of violence against or intimidation of any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery,
the crime of homicide shall have been committed, or when the robbery shall have been accompanied
by rape or intentional mutilation or arson.
2. The penalty of reclusion temporal in its medium period to reclusion perpetua, when or if by
reason or on occasion of such robbery, any of the physical injuries penalized in subdivision I of Article
263 shall have been inflicted.
3. The penalty of reclusion temporal, when by reason or on occasion of the robbery, any of the
physical injuries penalized in subdivision 2 of the article mentioned in the next preceding paragraph,
shall have been inflicted.
4. The penalty of prision mayor in its maximum period to reclusion temporal in its medium
period, if the violence or intimidation employed in the commission of the robbery shall have been
carried to a degree clearly unnecessary for the commission of the crime, or when in the course of its
execution, the offender shall have inflicted upon any person not responsible for its commission any of
the physical injuries covered by subdivisions 3 and 4 of said Article 263.
5. The penalty of prision correccional in its maximum period to prision mayor in its medium
period in other cases."
Section 10. Article 320 of the same Code is hereby amended to read as follows:
"Art. 320. Destructive Arson. - The penalty of reclusion perpetua to death shall be imposed
upon any person who shall burn:
1. One (1) or more buildings or edifices, consequent to one single act of burning, or as a result
of simultaneous burnings, committed on several or different occasions.
2. Any building of public or private ownership, devoted to the public in general or where people
usually gather or congregate for a definite purpose such as, but not limited to, official governmental
function or business, private transaction, commerce, trade, workshop, meetings and conferences, or
merely incidental to a definite purpose such as but not limited to hotels, motels, transient dwellings,
public conveyances or stops or terminals, regardless of whether the offender had knowledge that
there are persons in said building or edifice at the time it is set on fire and regardless also of whether
the building is actually inhabited or not.
3. Any train or locomotive, ship or vessel, airship or airplane, devoted to transportation or
conveyance, or for public use, entertainment or leisure.
4. Any building, factory, warehouse installation and any appurtenances thereto, which are
devoted to the service of public utilities.
5. Any building the burning of which is for the purpose of concealing or destroying evidence of
another violation of law, or for the purpose of concealing bankruptcy or defrauding creditors or to
collect from insurance.
Irrespective of the application of the above enumerated qualifying circumstances, the penalty of
reclusion perpetua to death shall likewise be imposed when the arson is perpetrated or committed by
two (2) or more persons or by a group of persons, regardless of whether their purpose is merely to
burn or destroy the building or the burning merely constitutes an overt act in the commission or
another violation of law.
The penalty of reclusion perpetua to death shall also be imposed upon any person who shall burn:
1. Any arsenal, shipyard, storehouse or military powder or fireworks factory, ordnance,
storehouse, archives or general museum of the Government.
2. In an inhabited place, any storehouse or factory of inflammable or explosive materials.
If as a consequence of the commission of any of the acts penalized under this Article, death results,
the mandatory penalty of death shall be imposed."
Section 11. Article 335 of the same Code is hereby amended to read as follows:
"Art. 335. When and how rape is committed. - Rape is committed by having carnal knowledge
of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be
death.
When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion
thereof, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.
The death penalty shall also be imposed if the crime of rape is committed with any of the following
attendant circumstances:
1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the
common-law-spouse of the parent of the victim.
2. when the victim is under the custody of the police or military authorities.
3. when the rape is committed in full view of the husband, parent, any of the children or other
relatives within the third degree of consanguinity.
4. when the victim is a religious or a child below seven (7) years old.
5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome
(AIDS) disease.
6. when committed by any member of the Armed Forces of the Philippines or the Philippine
National Police or any law enforcement agency.
7. when by reason or on the occasion of the rape, the victim has suffered permanent physical
mutilation."
Section 12. Section 2 of Republic Act No. 7080 (An Act Defining and Penalizing the Crime of Plunder)
is hereby amended to read as follows:
"Sec. 2. Definition of the Crime of Plunder; Penalties. - Any public officer who, by himself or in
connivance with members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a
combination or series of overt criminal acts as described in Section 1 (d) hereof in the aggregate
amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of
plunder and shall be punished by reclusion perpetua to death. Any person who participated with the
said public officer in the commission of an offense contributing to the crime of plunder shall likewise
be punished for such offense. In the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall
be considered by the court. The court shall declare any and all ill-gotten wealth and their interests
and other incomes and assets including the properties and shares of stocks derived from the deposit
or investment thereof forfeited in favor of the State."
Section 13. Sections 3, 4, 5, 7, 8 and 9, of Article II of Republic Act No. 6425, as amended, known as
the Dangerous Drugs Act 1972, are hereby amended to read as follows:
"Sec. 3. Importation of Prohibited Drugs. - The penalty of reclusion perpetua to death and a fine
ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person
who, unless authorized by law, shall import or bring into the Philippines any prohibited drug.
"Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. - The
penalty of reclusion perpetua to death and a fine from five hundred thousand pesos to ten million
pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver,
give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a
broker in any of such transactions.
Notwithstanding the provisions of Section 20 of this Act to the contrary, if the victim of the offense is
a minor, or should a prohibited drug involved in any offense under this Section be the proximate
cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed.
"Sec. 5. Maintenance of a Den, Dive or Resort for Prohibited Drug Users. - The penalty of reclusion
perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person or group of persons who shall maintain a den, dive or resort where any
prohibited drug is used in any form or where such prohibited drugs in quantities specified in Section
20, Paragraph 1 of this Act are found.
Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum of the penalty
shall be imposed in every case where a prohibited drug is administered, delivered or sold to a minor
who is allowed to use the same in such place.
Should a prohibited drug be the proximate cause of the death of a person using the same in such den,
dive or resort, the maximum penalty herein provided shall be imposed on the maintainer
notwithstanding the provisions of Section 20 of this Act to the contrary.
"Sec. 7. Manufacture of Prohibited Drug. - The penalty of reclusion perpetua to death and fine
ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person
who, unless authorized by law, shall engage in the manufacture of any prohibited drug.
"Sec. 8. Possession or Use of Prohibited Drugs. - The penalty of reclusion perpetua to death and a fine
ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person
who, unless authorized by law, shall possess or use any prohibited drug subject to the provisions of
Section 20 hereof.
"Sec. 9. Cultivation of Plants which are Sources of Prohibited Drugs. - The penalty of reclusion
perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person who shall plant, cultivate or culture any medium Indian hemp, opium poppy
(papaver somniferum), or any other plant which is or may hereafter be classified as dangerous drug
or from which any dangerous drug may be manufactured or derived.
The land or portions hereof, and/or greenhouses on which any of said plants is cultivated or cultured
shall be confiscated and escheated to the State, unless the owner thereof can prove that he did not
know such cultivation or culture despite the exercise of due diligence on his part.
If the land involved in is part of the public domain, the maximum of the penalties herein provided
shall be imposed upon the offender."
Section 14. Sections 14, 14-A, and 15 of Article III of Republic Act No. 6425, as amended, known as
the Dangerous Drugs Act of 1972, are hereby amended to read as follows:
"Sec. 14. Importation of Regulated Drugs. - The penalty of reclusion perpetua to death and a
fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person
who, unless authorized by law, shall import or bring any regulated drug in the Philippines.
"Sec. 14-A. Manufacture of Regulated Drugs. - The penalty of reclusion perpetua to death and a
fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person
who, unless authorized by law, shall engage in the manufacture of any regulated drug.
"Sec. 15. Sale, Administration, Dispensation, Delivery, Transportation and Distribution of
Regulated Drugs. - The penalty of reclusion perpetua to death and a fine ranging from five hundred
thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law,
shall sell, dispense, deliver, transport or distribute any regulated drug.
Notwithstanding the provisions of Section 20 of this Act to the contrary, if the victim of the offense is
a minor, or should a regulated drug involved in any offense under this Section be the proximate cause
of the death of a victim thereof, the maximum penalty herein provided shall be imposed."
Section 15. There shall be incorporated after Section 15 of Article III of Republic Act No. 6425, as
amended, known as the Dangerous Drug Act of 1972, a new section to read as follows:
"Sec. 15-a. Maintenance of a den, dive or resort for regulated drug users. - The penalty of
reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos
shall be imposed upon any person or group of persons who shall maintain a den, dive or resort where
any regulated drugs is used in any form, or where such regulated drugs in quantities specified in
Section 20, paragraph 1 of this Act are found.
Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum penalty herein
provided shall be imposed in every case where a regulated drug is administered, delivered or sold to a
minor who is allowed to use the same in such place.
Should a regulated drug be the proximate cause of the death of a person using the same in such den,
dive or resort, the maximum penalty herein provided shall be imposed on the maintainer
notwithstanding the provisions of Section 20 of this Act to the contrary."
Section 16. Section 16 of Article III of Republic Act No. 6425, as amended, known as the Dangerous
Drugs Act of 1972, is amended to read as follows:
"Sec. 16. Possession or Use of Regulated Drugs. - The penalty of reclusion perpetua to death
and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any
person who shall possess or use any regulated drug without the corresponding license or prescription,
subject to the provisions of Section 20 hereof."
Section 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous
Drugs Act of 1972, is hereby amended to read as follows:
Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instruments of the
Crime. - The penalties for offenses under Section 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A,
15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the
following quantities :
1. 40 grams or more of opium;
2. 40 grams or more of morphine;
3. 200 grams or more of shabu or methylamphetamine hydrochloride;
4. 40 grams or more of heroin;
5. 750 grams or more of indian hemp or marijuana;
6. 50 grams or more of marijuana resin or marijuana resin oil;
7. 40 grams or more of cocaine or cocaine hydrochloride; or
8. In the case of other dangerous drugs, the quantity of which is far beyond therapeutic
requirements, as determined and promulgated by the Dangerous Drugs Board, after public
consultations/hearings conducted for the purpose.
Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from
prision correccional to reclusion perpetua depending upon the quantity.
Every penalty imposed for the unlawful importation, sale, administration, delivery, transportation or
manufacture of dangerous drugs, the cultivation of plants which are sources of dangerous drugs and
the possession of any opium pipe and other paraphernalia for dangerous drugs shall carry with it the
confiscation and forfeiture, in favor of the Government, of all the proceeds of the crime including but
not limited to money and other obtained thereby and the instruments or tools with which it was
committed, unless they are the property of a third person not liable for the offense, but those which
are not of lawful commerce shall be ordered destroyed without delay. Dangerous drugs and plant
sources of such drugs as well as the proceeds or instruments of the crime so confiscated and forfeited
in favor of the Government shall be turned over to the Board for proper disposal without delay.
Any apprehending or arresting officer who misappropriates or misapplies or fails to account for seized
or confiscated dangerous drugs or plant-sources of dangerous drugs or proceeds or instruments of the
crime as are herein defined shall after conviction be punished by the penalty of reclusion perpetua to
death and a fine ranging from five hundred thousand pesos to ten million pesos."
Section 18. There shall be incorporated after Section 20 of Republic Act No. 6425, as amended,
known as the Dangerous Drugs Act of 1972, a new section to read as follows:
"Sec. 20-A. Plea-bargaining Provisions. - Any person charged under any provision of this Act
where the imposable penalty is reclusion perpetua to death shall not be allowed to avail of the
provision on plea bargaining."
Section 19. Section 24 of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of
1972, is hereby amended to read as follows :
"Sec. 24. Penalties for Government Official and Employees and Officers and Members of Police
Agencies and the Armed Forces, 'Planting' of Evidence. - The maximum penalties provided for Section
3, 4(1), 5(1), 6, 7, 8, 9, 11, 12 and 13 of Article II and Sections 14, 14-A, 15(1), 16 and 19 of Article
III shall be imposed, if those found guilty of any of the said offenses are government officials,
employees or officers, including members of police agencies and the armed forces.
Any such above government official, employee or officer who is found guilty of "planting" any
dangerous drugs punished in Sections 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15 and
16 of Article III of this Act in the person or in the immediate vicinity of another as evidence to
implicate the latter, shall suffer the same penalty as therein provided."
Section 20. Sec. 14 of Republic Act No. 6539, as amended, known as the Anti-Carnapping Act of
1972, is hereby amended to read as follows:
"Sec. 14. Penalty for Carnapping. - Any person who is found guilty of carnapping, as this term
is defined in Section Two of this Act, shall, irrespective of the value of motor vehicle taken, be
punished by imprisonment for not less than fourteen years and eight months and not more than
seventeen years and four months, when the carnapping is committed without violence or intimidation
of persons, or force upon things; and by imprisonment for not less than seventeen years and four
months and not more than thirty years, when the carnapping is committed by means of violence
against or intimidation of any person, or force upon things; and the penalty of reclusion perpetua to
death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed or
raped in the course of the commission of the carnapping or on the occasion thereof."
Section 21. Article 27 of the Revised Penal Code, as amended, is hereby amended to read as follows:
"Art. 27. Reclusion perpetua. - The penalty of reclusion perpetua shall be from twenty years and one
day to forty years.
Reclusion temporal. - The penalty of reclusion temporal shall be from twelve years and one day to
twenty years.
Prision mayor and temporary disqualification. - The duration of the penalties of prision mayor and
temporary disqualification shall be from six years and one day to twelve years, except when the
penalty of disqualification is imposed as an accessory penalty, in which case, it shall be that of the
principal penalty.
Prision correccional, suspension, and destierro. - The duration of the penalties of prision correccional,
suspension, and destierro shall be from six months and one day to six years, except when the
suspension is imposed as an accessory penalty, in which case, its duration shall be that of the
principal penalty.
Arresto mayor. - The duration of the penalty of arresto mayor shall be from one month and one day
to six months.
Arresto menor. - The duration of the penalty of arresto menor shall be from one day to thirty days.
Bond to keep the peace. - The bond to keep the peace shall be required to cover such period of time
as the court may determine."
Section 22. Article 47 of the same Code is hereby amended to read as follows:
Art. 47. In what cases the death penalty shall not be imposed; Automatic review of the Death Penalty
Cases. - The death penalty shall be imposed in all cases in which it must be imposed under existing
laws, except when the guilty person is below eighteen (18) years of age at the time of the
commission of the crime or is more than seventy years of age or when upon appeal or automatic
review of the case by the Supreme Court, the required majority vote is not obtained for the
imposition of the death penalty, in which cases the penalty shall be reclusion perpetua.
In all cases where the death penalty is imposed by the trial court, the records shall be forwarded to
the Supreme Court for automatic review and judgment by the Court en banc, within twenty (20) days
but not earlier than fifteen (15) days after promulgation of the judgment or notice of denial of any
motion for new trial or reconsideration. The transcript shall also be forwarded within ten (10) days
from the filing thereof by the stenographic reporter."
Section 23. Article 62 of the same Code, as amended, is hereby amended to read as follows :
"Art. 62. Effects of the attendance of mitigating or aggravating circumstances and of habitual
delinquency. - Mitigating or aggravating circumstances and habitual delinquency shall be taken into
account for the purpose of diminishing or increasing the penalty in conformity with the following
rules:
1. Aggravating circumstances which in themselves constitute a crime specially punishable by
law or which are included by the law in defining a crime and prescribing the penalty therefor shall not
be taken into account for the purpose of increasing the penalty.
1(a). When in the commission of the crime, advantage was taken by the offender of his public
position, the penalty to be imposed shall be in its maximum regardless of mitigating circumstances.
The maximum penalty shall be imposed if the offense was committed by any group who belongs to an
organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more persons collaborating,
confederating or mutually helping one another for purposes of gain in the commission of any crime.
2. The same rule shall apply with respect to any aggravating circumstances inherent in the
crime to such a degree that it must of necessity accompany the commission thereof.
3. Aggravating or mitigating circumstances which arise from the moral attributes of the
offender, or from his private relations with the offended party, or from any other personal cause, shall
only serve to aggravate or mitigate the liability of the principals, accomplices and accessories as to
whom such circumstances are attendant.
4. The circumstances which consist in the material execution of the act, or in the means
employed to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who
had knowledge of them at the time of the execution of the act or their cooperation therein.
5. Habitual delinquency shall have the following effects :
(a) Upon a third conviction the culprit shall be sentenced to the penalty provided by law for the
last crime of which he be found guilty and to the additional penalty of prision correccional in its
medium and maximum periods;
(b) Upon a fourth conviction, the culprit shall be sentenced to the penalty provided for the last
crime of which he be found guilty and to the additional penalty of prision mayor in its minimum and
medium periods; and
(c) Upon a fifth or additional conviction, the culprit shall be sentenced to the penalty provided
for the last crime of which he be found guilty and to the additional penalty of prision mayor in its
maximum period to reclusion temporal in its minimum period.
Notwithstanding the provisions of this article, the total of the two penalties to be imposed upon the
offender, in conformity herewith, shall in no case exceed 30 years.
For purposes of this article, a person shall be deemed to be a habitual delinquent, if within a period of
ten years from the date of his release or last conviction of the crimes of serious or less serious
physical injuries, robo, hurto, estafa or falsification, he is found guilty of any of said crimes a third
time or oftener.
Section 24. Article 81 of the same Code, as amended, is hereby amended to read as follows :
"Art. 81. When and how the death penalty is to be executed. - The death sentence shall be executed
with preference to any other and shall consist in putting the person under sentence to death by
electrocution. The death sentence shall be executed under the authority of the Director of Prisons,
endeavoring so far as possible to mitigate the sufferings of the person under the sentence during
electrocution as well as during the proceedings prior to the execution.
If the person under sentence so desires, he shall be anaesthetized at the moment of the execution.
As soon as facilities are provided by the Bureau of Prisons, the method of carrying out the sentence
shall be changed to gas poisoning.
The death sentence shall be carried out not later than one (1) year after the judgment has become
final."
Section 25. Article 83 of the same Code is hereby amended to read as follows:
"Art. 83. Suspension of the execution of the death sentence. - The death sentence shall not be
inflicted upon a woman while she is pregnant or within one (1) year after delivery, nor upon any
person over seventy years of age. In this last case, the death sentence shall be commuted to the
penalty of reclusion perpetua with the accessory penalties provided in Article 40.
In all cases where the death sentence has become final, the records of the case shall be forwarded
immediately by the Supreme Court to the Office of the President for possible exercise of the
pardoning power."
Section 26.
Section 27. If, for any reason or reasons, any part of the provision of this Act shall be held to be
unconstitutional or invalid, other parts or provisions hereof which are not affected thereby shall
continue to be in full force and effect.
Section 28. This Act shall take effect fifteen (15) days after its publication in two (2) national
newspapers of general circulation. The publication shall not be later than seven (7) days after the
approval hereof.
Approved: December 13, 1993
AN ACT TO AUTHORIZE THE PHILIPPINE CHARITY SWEEPSTAKES OFFICE TO HOLD ONE SPECIAL
SWEEPSTAKE RACE FOR THE BUREAU OF PUBLIC SCHOOLS ATHLETIC PROGRAM AS BENEFICIARY.
SECTION. 1. The Philippine Charity Sweepstakes Office shall hold in the year nineteen hundred and
fifty-four one special sweepstake horse race the net proceeds of which shall, after deducting the
payment of the prizes and expenses as provided in Act Numbered Forty-one hundred and thirty, as
amended by Commonwealth Act Numbered Five hundred and forty-six, be turned over to the Director
of the Bureau of Public Schools, Manila, for the support of its yearly physical education program
including the national interscholastic athletic meet, all expenses therefor to be subject to budgeting
and auditing regulations. In said special sweepstake horse race, the prizes for the three winning
horses shall be in direct proportion, respectively, to the three main prizes for winning tickets and shall
be ten per cent thereof, but in no case shall the total amount of the prizes for winning horses exceed
fifty thousand pesos.
SEC. 2. This Act shall take effect upon its approval.
Approved, June 17, 1954,
G.R. No. 78239 February 9, 1989
SALVACION A. MONSANTO, petitioner,
vs.
FULGENCIO S. FACTORAN, JR., respondent.
FERNAN, C.J.:
The principal question raised in this petition for review is whether or not a public officer, who has
been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her former
position without need of a new appointment.
In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion A.
Monsanto (then assistant treasurer of Calbayog City) and three other accused, of the complex crime
of estafa thru falsification of public documents and sentenced them to imprisonment of four (4) years,
two (2) months and one (1) day of prision correccional as minimum, to ten (10) years and one (1)
day of prision mayor as maximum, and to pay a fine of P3,500. They were further ordered to jointly
and severally indemnify the government in the sum of P4,892.50 representing the balance of the
amount defrauded and to pay the costs proportionately.
Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the same. She
then filed a motion for reconsideration but while said motion was pending, she was extended on
December 17, 1984 by then President Marcos absolute pardon which she accepted on December 21,
1984.
By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be
restored to her former post as assistant city treasurer since the same was still vacant.
Petitioner's letter-request was referred to the Ministry of Finance for resolution in view of the
provision of the Local Government Code transferring the power of appointment of treasurers from the
city governments to the said Ministry. In its 4th Indorsement dated March 1, 1985, the Finance
Ministry ruled that petitioner may be reinstated to her position without the necessity of a new
appointment not earlier than the date she was extended the absolute pardon. It also directed the city
treasurer to see to it that the amount of P4,892.50 which the Sandiganbayan had required to be
indemnified in favor of the government as well as the costs of the litigation, be satisfied. 1
Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April 17, 1985
stressing that the full pardon bestowed on her has wiped out the crime which implies that her service
in the government has never been interrupted and therefore the date of her reinstatement should
correspond to the date of her preventive suspension which is August 1, 1982; that she is entitled to
backpay for the entire period of her suspension; and that she should not be required to pay the
proportionate share of the amount of P4,892.50. 2
The Ministry of Finance, however, referred petitioner's letter to the Office of the President for further
review and action. On April 15, 1986, said Office, through Deputy Executive Secretary Fulgenio S.
Factoran, Jr. held:
We disagree with both the Ministry of Finance and the petitioner because, as borne out by the
records, petitioner was convicted of the crime for which she was accused. In line with the
government's crusade to restore absolute honesty in public service, this Office adopts, as a juridical
guide (Miranda v. Imperial, 77 Phil. 1966), the Resolution of the Sandiganbayan, 2nd Division, in
People v. Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not absolute pardon, of a
former public officer is the only ground for reinstatement to his former position and entitlement to
payment of his salaries, benefits and emoluments due to him during the period of his suspension
pendente lite.
In fact, in such a situation, the former public official must secure a reappointment before he can
reassume his former position. ...
Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that "a pardon shall in
no case exempt the culprit from payment of the civil indemnity imposed upon him by the sentence."
(Sec. 36, par. 2).
IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not entitled to an
automatic reinstatement on the basis of the absolute pardon granted her but must secure an
appointment to her former position and that, notwithstanding said absolute pardon, she is liable for
the civil liability concomitant to her previous conviction. 3
Her subsequent motion for reconsideration having been denied, petitioner filed the present petition in
her behalf We gave due course on October 13, 1987.
Petitioner's basic theory is that the general rules on pardon cannot apply to her case by reason of the
fact that she was extended executive clemency while her conviction was still pending appeal in this
Court. There having been no final judgment of conviction, her employment therefore as assistant city
treasurer could not be said to have been terminated or forfeited. In other words, without that final
judgment of conviction, the accessory penalty of forfeiture of office did not attach and the status of
her employment remained "suspended." More importantly, when pardon was issued before the final
verdict of guilt, it was an acquittal because there was no offense to speak of. In effect, the President
has declared her not guilty of the crime charged and has accordingly dismissed the same. 4
It is well to remember that petitioner had been convicted of the complex crime of estafa thru
falsification of public documents and sentenced to imprisonment of four years, two months and one
day of prision correccional as minimum, to ten years and one day of prision mayor as maximum. The
penalty of prision mayor carries the accessory penalties of temporary absolute disqualification and
perpetual special disqualification from the right of suffrage, enforceable during the term of the
principal penalty. 5 Temporary absolute disqualification bars the convict from public office or
employment, such disqualification to last during the term of the sentence. 6 Even if the offender be
pardoned, as to the principal penalty, the accessory penalties remain unless the same have been
expressly remitted by the pardon. 7 The penalty of prision correccional carries, as one of its accessory
penalties, suspension from public office. 8
The propositions earlier advanced by petitioner reveal her inadequate understanding of the nature of
pardon and its legal consequences. This is not totally unexpected considering that the authorities on
the subject have not been wholly consistent particularly in describing the effects of pardon.
The benign mercy of pardon is of British origin, conceived to temper the gravity of the King's wrath.
But Philippine jurisprudence on the subject has been largely influenced by American case law.
Pardon is defined as "an act of grace, proceeding from the power entrusted with the execution of the
laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for
a crime he has committed. It is the private, though official act of the executive magistrate, delivered
to the individual for whose benefit it is intended, and not communicated officially to the Court. ... A
pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without
acceptance." 8-a
At the time the antecedents of the present case took place, the pardoning power was governed by the
1973 Constitution as amended in the April 7, 1981 plebiscite. The pertinent provision reads:
The President may, except in cases of impeachment, grant reprieves, commutations and pardons,
remit fines and forfeitures, and with the concurrence of the Batasang Pambansa, grant amnesty. 9
The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final
conviction, implying that clemency could be given even before conviction. Thus, petitioner's
unconditional pardon was granted even as her appeal was pending in the High Court. It is worth
mentioning that under the 1987 Constitution, the former limitation of final conviction was restored.
But be that as it may, it is our view that in the present case, it is not material when the pardon was
bestowed, whether before or after conviction, for the result would still be the same. Having accepted
the pardon, petitioner is deemed to have abandoned her appeal and her unreversed conviction by the
Sandiganbayan assumed the character of finality.
Having disposed of that preliminary point, we proceed to discuss the effects of a full and absolute
pardon in relation to the decisive question of whether or not the plenary pardon had the effect of
removing the disqualifications prescribed by the Revised Penal Code.
In Pelobello v. Palatino, 10 We find a reiteration of the stand consistently adopted by the courts on
the various consequences of pardon: "... we adopt the broad view expressed in Cristobal v. Labrador,
G.R. No. 47941, December 7, 1940, that subject to the limitations imposed by the Constitution, the
pardoning power cannot be restricted or controlled by legislative action; that an absolute pardon not
only blots out the crime committed but removes all disabilities resulting from the conviction. ... (W)e
are of the opinion that the better view in the light of the constitutional grant in this jurisdiction is not
to unnecessarily restrict or impair the power of the Chief Executive who, after an inquiry into the
environmental facts, should be at liberty to atone the rigidity of the law to the extent of relieving
completely the party ... concerned from the accessory and resultant disabilities of criminal conviction.
The Pelobello v. Palatino and Cristobal v. Labrador cases, 11 and several others 12 show the
unmistakable application of the doctrinal case of Ex Parte Garland, 13 whose sweeping generalizations
to this day continue to hold sway in our jurisprudence despite the fact that much of its relevance has
been downplayed by later American decisions.
Consider the following broad statements:
A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and
when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the
eye of the law the offender is as innocent as if he had never committed the offense. If granted before
conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from
attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all
his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. 14
Such generalities have not been universally accepted, recognized or approved. 15 The modern trend
of authorities now rejects the unduly broad language of the Garland case (reputed to be perhaps the
most extreme statement which has been made on the effects of a pardon). To our mind, this is the
more realistic approach. While a pardon has generally been regarded as blotting out the existence of
guilt so that in the eye of the law the offender is as innocent as though he never committed the
offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission
of guilt. Pardon implies guilt. It does not erase the fact of the commission of the crime and the
conviction thereof. It does not wash out the moral stain. It involves forgiveness and not forgetfulness.
16
The better considered cases regard full pardon (at least one not based on the offender's innocence) as
relieving the party from all the punitive consequences of his criminal act, including the
disqualifications or disabilities based on the finding of guilt. 17 But it relieves him from nothing more.
"To say, however, that the offender is a "new man", and "as innocent as if he had never committed
the offense;" is to ignore the difference between the crime and the criminal. A person adjudged guilty
of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though
left unpunished; and the law may regard him as more dangerous to society than one never found
guilty of crime, though it places no restraints upon him following his conviction." 18
A pardon looks to the future. It is not retrospective. 19 It makes no amends for the past. It affords no
relief for what has been suffered by the offender. It does not impose upon the government any
obligation to make reparation for what has been suffered. "Since the offense has been established by
judicial proceedings, that which has been done or suffered while they were in force is presumed to
have been rightfully done and justly suffered, and no satisfaction for it can be required." 20 This
would explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost
earnings and benefits.
Petitioner maintains that when she was issued absolute pardon, the Chief Executive declared her not
guilty of the crime for which she was convicted. In the case of State v. Hazzard, 21 we find this
strong observation: "To assume that all or even a major number of pardons are issued because of
innocence of the recipients is not only to indict our judicial system, but requires us to assume that
which we all know to be untrue. The very act of forgiveness implies the commission of wrong, and
that wrong has been established by the most complete method known to modern civilization. Pardons
may relieve from the disability of fines and forfeitures attendant upon a conviction, but they cannot
erase the stain of bad character, which has been definitely fixed. 22
In this ponencia, the Court wishes to stress one vital point: While we are prepared to concede that
pardon may remit all the penal consequences of a criminal indictment if only to give meaning to the
fiat that a pardon, being a presidential prerogative, should not be circumscribed by legislative action,
we do not subscribe to the fictitious belief that pardon blots out the guilt of an individual and that
once he is absolved, he should be treated as if he were innocent. For whatever may have been the
judicial dicta in the past, we cannot perceive how pardon can produce such "moral changes" as to
equate a pardoned convict in character and conduct with one who has constantly maintained the
mark of a good, law-abiding citizen.
Pardon cannot mask the acts constituting the crime. These are "historical" facts which, despite the
public manifestation of mercy and forgiveness implicit in pardon, "ordinary, prudent men will take into
account in their subsequent dealings with the actor." 23
Pardon granted after conviction frees the individual from all the penalties and legal disabilities and
restores him to all his civil rights. But unless expressly grounded on the person's innocence (which is
rare), it cannot bring back lost reputation for honesty, integrity and fair dealing. 24 This must be
constantly kept in mind lest we lose track of the true character and purpose of the privilege.
Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full
agreement with the commonly-held opinion that pardon does not ipso facto restore a convicted felon
to public office necessarily relinquished or forfeited by reason of the conviction 25 although such
pardon undoubtedly restores his eligibility for appointment to that office. 26
The rationale is plainly evident Public offices are intended primarily for the collective protection, safety
and benefit of the common good. They cannot be compromised to favor private interests. To insist on
automatic reinstatement because of a mistaken notion that the pardon virtually acquitted one from
the offense of estafa would be grossly untenable. A pardon, albeit full and plenary, cannot preclude
the appointing power from refusing appointment to anyone deemed to be of bad character, a poor
moral risk, or who is unsuitable by reason of the pardoned conviction.
For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from public
office forms part of the punishment prescribed by the Revised Penal Code for estafa thru falsification
of public documents. It is clear from the authorities referred to that when her guilt and punishment
were expunged by her pardon, this particular disability was likewise removed. Henceforth, petitioner
may apply for reappointment to the office which was forfeited by reason of her conviction. And in
considering her qualifications and suitability for the public post, the facts constituting her offense
must be and should be evaluated and taken into account to determine ultimately whether she can
once again be entrusted with public funds. Stated differently, the pardon granted to petitioner has
resulted in removing her disqualification from holding public employment but it cannot go beyond
that. To regain her former post as assistant city treasurer, she must re-apply and undergo the usual
procedure required for a new appointment.
Finally, petitioner has sought exemption from the payment of the civil indemnity imposed upon her by
the sentence. The Court cannot oblige her. Civil liability arising from crime is governed by the Revised
Penal Code. It subsists notwithstanding service of sentence, or for any reason the sentence is not
served by pardon, amnesty or commutation of sentence. Petitioner's civil liability may only be
extinguished by the same causes recognized in the Civil Code, namely: payment, loss of the thing
due, remission of the debt, merger of the rights of creditor and debtor, compensation and novation.
27
WHEREFORE, the assailed resolution of former Deputy Executive Secretary Fulgencio S. Factoran, Jr.,
dated April 15, 1986, is AFFIRMED. No costs.
SO ORDERED.
Narvasa, Paras, Gancayco, Bidin, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.
Melencio-Herrera, J., concurs in the result.
Separate Opinions
PADILLA, J.:
I concur in the result but on grounds different from those relied upon by the majority opinion.
Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City. Together with three (3)
other accused, she was charged before the Sandiganbayan with the complex crime of Estafa through
falsification of public documents. After trial, the accused were convicted and sentenced to
imprisonment of four (4) years, two (2) months and one (1) day of prision correccional, as minimum,
to ten (10) years and one (1) day of prision correccional, as maximum, and to pay a fine of P
3,500.00. They were also ordered to jointly and severally indemnify the government in the sum of P
4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately.
Petitioner appealed the judgment of conviction to this Court which affirmed the same. Petitioner then
filed a motion for reconsideration but while said motion was pending, President Ferdinand E. Marcos
extended to her on 17 December 1984 an absolute pardon which she accepted on 21 December 1984.
By reason of said absolute pardon, petitioner in representations before the City Treasurer of
Calbayog, the Ministry of Finance and the Office of the President, asked that she be allowed to re-
assume her former office, as of 1 August 1982 (the date of her preventive suspension), that she be
paid her back salaries for the entire period of her suspension, and that she be not required to pay her
proportionate share of the amount of P 4,892.50.
Respondent Assistant Executive Secretary denied petitioner's request for automatic reinstatement as
well as her other claims, because of which denial, this petition for review on certiorari was filed before
the Court seeking the setting aside and reversal of the decision of the respondent Assistant Executive
Secretary, on the main contention that, as a public officer who has been granted an absolute pardon
by the President, she is entitled to reinstatement to her former position without need of a new
appointment, and to the other reliefs prayed for.
There can be no dispute that the pardon extinguished petitioner's criminal liability. At the same time,
Art. 36 of the Revised Penal Code categorically covers the effects of a pardon on the pardoned's right
to hold office, suffrage and on his civil liability. It states:
ART. 36. Pardon; its effects. - A pardon shall not work the restoration of the right to hold public office,
or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon
him by the sentence. (Emphasis supplied)
Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind, clear that the pardon
extended by the President to the petitioner did not per se entitle her to again hold public office
(including therefore the office of Assistant Treasurer, Calbayog City) or to suffrage; nor did such
pardon extinguish her civil liability for the criminal conviction, subject matter of the pardon.
An examination of the presidential pardon in question shows that, while petitioner was granted "an
absolute and unconditional pardon and restored to full civil and political rights", yet, nothing therein
expressly provides that the right to hold public office was thereby restored to the petitioner. In view
of the express exclusion by Art. 36, RPC of the right to hold public office, notwithstanding a pardon
unless the right is expressly restored by the pardon, it is my considered opinion that, to the extent
that the pardon granted to the petitioner did not expressly restore the right to hold public office as an
effect of such pardon, that right must be kept away from the petitioner.
It is a recognized principle in public law — hopefully to be honored more in its compliance rather than
in its breach — that a "public office is a public trust." The restoration of the right to hold public office
to one who has lost such right by reason of conviction in a criminal case, but subsequently pardoned,
cannot be left to inference, no matter how intensely arguable, but must be stated in express, explicit,
positive and specific language. To require this would not be asking too much.
I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341 and Pelobello vs.
Palatino, 72 Phil. 441 which may be understood to mean that an absolute pardon, without
qualification, restores full civil rights which have been construed, in turn, to include the right to hold
public office (Versoza vs. Fernandez, 55 Phil. 323).
If such be the message of said cases, then I submit that a modification is in order, so that an absolute
pardon to work a restoration of the right to hold public office must expressly so state, in order to give
substance and meaning to the sound provisions of Article 36 of the Revised Penal Code, particularly in
the light of our times and experience.
ACCORDINGLY, I vote to DENY the petition.
Melencio-Herrera, Sarmiento, JJ., concur.
FELICIANO, J., concurring:
I concur in the result reached in the important and eloquent opinion of the Chief Justice. I also join in
the separate concurring opinion of Mr. Justice Padilla. At the same time, I would add a few brief
statements, basically for my own clarification. Article 36 of the Revised Penal Code states:
Article 36. Pardon; its effects. - A pardon shall not work the registration of the right to hold public
office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon
him by the sentence. (Emphasis supplied)
It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times by the Revised
Penal Code in its following provisions:
Article 40. Death-Its accessory penalties. - The death penalty, when it is not executed by reason of
commutation or pardon shall carry with it that of perpetual absolute disqualification and that of civil
interdiction during thirty years following the date of sentence, unless such accessory penalties have
been expressly remitted in the pardon.
Article 41. Reclusion perpetua and reclusion temporal. - Their accessory penalties. - The penalties of
reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or
during the period of the sentence as the case may be, and that of perpetual absolute disqualification
which the offender shall suffer even though pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon.
Article 42. Prision mayor - Its accessory penalties. - The penalty of prision mayor shall carry with it
that of temporary absolute disqualification and that of perpetual special disqualification from the right
of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the pardon.
Article 43. Prision correccional - Its accessory penalties. - The penalty of prision correccional shall
carry with it that of suspension from public office, from the right to follow a profession or calling, and
that of perpetual special disqualification from the right of suffrage, if the duration of said
imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in
this article although pardoned as to the principal penalty, unless the same shall have been expressly
remitted in the pardon. (Emphasis supplied)
The Chief Justice points out that the penalty imposed upon petitioner for the complex crime of estafa
through falsification of public documents, included the accessory penalties of temporary absolute
disqualification from public office or employment and perpetual special disqualification from the right
of suffrage. The 17 December 1984 pardon extended to petitioner in the instant case was written on a
standard printed form which states in printed words that it was "an absolute and unconditional pardon
[which] restored [petitioner] to full civil and political rights." 1 While the right of suffrage and the
right to hold public office or employment are commonly regarded as "political rights," 2 it must be
noted that there are other "political rights" 3 and that the pardon given to petitioner did not expressly
and in printer's ink restore to petitioner the particular right to hold public office and the specific right
to vote at elections and plebiscites.
I join in the basic point of Mr. Justice Padilla that because of the nature of a public office as a public
trust, Articles 36 and 40-43 appropriately require a very high degree of explicitness if a pardon is to
work the restoration of such right to petitioner. Exactly the same point may, of course, be made in
respect of the restoration of the right to vote.
Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in our statute books since
1930. I believe that they have been left intact by the constitutional provisions on pardon, whether
one refers to the 1935 Constitution or to the 1973 and 1987 Constitutions. I do not believe that
Articles 36, et al. collided with any provision or principle embodied in either of our prior constitutions.
The Chief Justice appears to agree with this position when he referred to Article 36 of the Revised
Penal Code (Opinion, p. 5). He goes on, however, to say (in page 13) that: "the pardon granted to
petitioner has resulted in removing her disqualification from holding public employment but it cannot
go beyond that."
It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code have not been shown
to be an unconstitutional restriction on the pardoning power of the President. The limitation on the
President's pardoning power, if limitation it be, does not appear to be an unreasonably onerous one.
Articles 36, et al. merely require the President to become completely explicit if the pardon he extends
is intended to wipe out not merely the principal but also the accessory penalty of disqualification from
holding public office and from voting and to restore the recipient of the pardon to the exercise of such
fundamental political rights. Such requirement of explicitness seems entirely in line with the
fundamental point made by the Chief Justice that a pardon does not blot out the factual guilt of the
recipient of the pardon. In other words, the mere grant of a pardon to a public officer or employee
who has been unfaithful to the public trust and sentenced to disqualification from voting and from
holding such office, does not create the presumption that the recipient of the pardon has thereby
suddenly become morally eligible once more to exercise the right to vote and to hold public office.
In my view, the pardon extended to petitioner was ineffective to restore to her the right to hold public
office and on this ground, I vote to DENY the Petition for Review and to AFFIRM the assailed
Resolution of the then Executive Secretary Fulgencio S. Factoran, Jr.
Melencio-Herrera, Gutierrez, Jr., Cruz, Sarmiento, JJ., concur.
Separate Opinions
PADILLA, J.:
I concur in the result but on grounds different from those relied upon by the majority opinion.
Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City. Together with three (3)
other accused, she was charged before the Sandiganbayan with the complex crime of Estafa through
falsification of public documents. After trial, the accused were convicted and sentenced to
imprisonment of four (4) years, two (2) months and one (1) day of prision correccional, as minimum,
to ten (10) years and one (1) day of prision correccional, as maximum, and to pay a fine of P
3,500.00. They were also ordered to jointly and severally indemnify the government in the sum of P
4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately.
Petitioner appealed the judgment of conviction to this Court which affirmed the same. Petitioner then
filed a motion for reconsideration but while said motion was pending, President Ferdinand E. Marcos
extended to her on 17 December 1984 an absolute pardon which she accepted on 21 December 1984.
By reason of said absolute pardon, petitioner in representations before the City Treasurer of
Calbayog, the Ministry of Finance and the Office of the President, asked that she be allowed to re-
assume her former office, as of 1 August 1982 (the date of her preventive suspension), that she be
paid her back salaries for the entire period of her suspension, and that she be not required to pay her
proportionate share of the amount of P 4,892.50.
Respondent Assistant Executive Secretary denied petitioner's request for automatic reinstatement as
well as her other claims, because of which denial, this petition for review on certiorari was filed before
the Court seeking the setting aside and reversal of the decision of the respondent Assistant Executive
Secretary, on the main contention that, as a public officer who has been granted an absolute pardon
by the President, she is entitled to reinstatement to her former position without need of a new
appointment, and to the other reliefs prayed for.
There can be no dispute that the pardon extinguished petitioner's criminal liability. At the same time,
Art. 36 of the Revised Penal Code categorically covers the effects of a pardon on the pardoned's right
to hold office, suffrage and on his civil liability. It states:
ART. 36. Pardon; its effects. - A pardon shall not work the restoration of the right to hold public office,
or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon
him by the sentence. (Emphasis supplied)
Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind, clear that the pardon
extended by the President to the petitioner did not per se entitle her to again hold public office
(including therefore the office of Assistant Treasurer, Calbayog City) or to suffrage; nor did such
pardon extinguish her civil liability for the criminal conviction, subject matter of the pardon.
An examination of the presidential pardon in question shows that, while petitioner was granted "an
absolute and unconditional pardon and restored to full civil and political rights", yet, nothing therein
expressly provides that the right to hold public office was thereby restored to the petitioner. In view
of the express exclusion by Art. 36, RPC of the right to hold public office, notwithstanding a pardon
unless the right is expressly restored by the pardon, it is my considered opinion that, to the extent
that the pardon granted to the petitioner did not expressly restore the right to hold public office as an
effect of such pardon, that right must be kept away from the petitioner.
It is a recognized principle in public law-hopefully to be honored more in its compliance rather than in
its breach that a "public office is a public trust." The restoration of the right to hold public office to
one who has lost such right by reason of conviction in a criminal case, but subsequently pardoned,
cannot be left to inference, no matter how intensely arguable, but must be stated in express, explicit,
positive and specific language. To require this would not be asking too much.
I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341 and Pelobello vs.
Palatino, 72 Phil. 441 which may be understood to mean that an absolute pardon, without
qualification, restores full civil rights which have been construed, in turn, to include the right to hold
public office (Versoza vs. Fernandez, 55 Phil. 323).
If such be the message of said cases, then I submit that a modification is in order, so that an absolute
pardon to work a restoration of the right to hold public office must expressly so state, in order to give
substance and meaning to the sound provisions of Article 36 of the Revised Penal Code, particularly in
the light of our times and experience.
ACCORDINGLY, I vote to DENY the petition.
Melencio-Herrera, Sarmiento, JJ., concur.
FELICIANO, J., concurring:
I concur in the result reached in the important and eloquent opinion of the Chief Justice. I also join in
the separate concurring opinion of Mr. Justice Padilla. At the same time, I would add a few brief
statements, basically for my own clarification. Article 36 of the Revised Penal Code states:
Article 36. Pardon; its effects. - A pardon shall not work the registration of the right to hold public
office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon
him by the sentence. (Emphasis supplied)
It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times by the Revised
Penal Code in its following provisions:
Article 40. Death-Its accessory penalties. - The death penalty, when it is not executed by reason of
commutation or pardon shall carry with it that of perpetual absolute disqualification and that of civil
interdiction during thirty years following the date of sentence, unless such accessory penalties have
been expressly remitted in the pardon.
Article 41. Reclusion perpetua and reclusion temporal. - Their accessory penalties. - The penalties of
reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or
during the period of the sentence as the case may be, and that of perpetual absolute disqualification
which the offender shall suffer even though pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon.
Article 42. Prision mayor - Its accessory penalties. - The penalty of prision mayor shall carry with it
that of temporary absolute disqualification and that of perpetual special disqualification from the right
of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the pardon.
Article 43. Prision correccional - Its accessory penalties. - The penalty of prision correccional shall
carry with it that of suspension from public office, from the right to follow a profession or calling, and
that of perpetual special disqualification from the right of suffrage, if the duration of said
imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in
this article although pardoned as to the principal penalty, unless the same shall have been expressly
remitted in the pardon. (Emphasis supplied)
The Chief Justice points out that the penalty imposed upon petitioner for the complex crime of estafa
through falsification of public documents, included the accessory penalties of temporary absolute
disqualification from public office or employment and perpetual special disqualification from the right
of suffrage. The 17 December 1984 pardon extended to petitioner in the instant case was written on a
standard printed form which states in printed words that it was "an absolute and unconditional pardon
[which] restored [petitioner] to full civil and political rights." 1 While the right of suffrage and the
right to hold public office or employment are commonly regarded as "political rights," 2 it must be
noted that there are other "political rights" 3 and that the pardon given to petitioner did not expressly
and in printer's ink restore to petitioner the particular right to hold public office and the specific right
to vote at elections and plebiscites.
I join in the basic point of Mr. Justice Padilla that because of the nature of a public office as a public
trust, Articles 36 and 40-43 appropriately require a very high degree of explicitness if a pardon is to
work the restoration of such right to petitioner. Exactly the same point may, of course, be made in
respect of the restoration of the right to vote.
Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in our statute books since
1930. I believe that they have been left intact by the constitutional provisions on pardon, whether
one refers to the 1935 Constitution or to the 1973 and 1987 Constitutions. I do not believe that
Articles 36, et al. collided with any provision or principle embodied in either of our prior constitutions.
The Chief Justice appears to agree with this position when he referred to Article 36 of the Revised
Penal Code (Opinion, p. 5). He goes on, however, to say (in page 13) that: "the pardon granted to
petitioner has resulted in removing her disqualification from holding public employment but it cannot
go beyond that."
It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code have not been shown
to be an unconstitutional restriction on the pardoning power of the President. The limitation on the
President's pardoning power, if limitation it be, does not appear to be an unreasonably onerous one.
Articles 36, et al. merely require the President to become completely explicit if the pardon he extends
is intended to wipe out not merely the principal but also the accessory penalty of disqualification from
holding public office and from voting and to restore the recipient of the pardon to the exercise of such
fundamental political rights. Such requirement of explicitness seems entirely in line with the
fundamental point made by the Chief Justice that a pardon does not blot out the factual guilt of the
recipient of the pardon. In other words, the mere grant of a pardon to a public officer or employee
who has been unfaithful to the public trust and sentenced to disqualification from voting and from
holding such office, does not create the presumption that the recipient of the pardon has thereby
suddenly become morally eligible once more to exercise the right to vote and to hold public office.
In my view, the pardon extended to petitioner was ineffective to restore to her the right to hold public
office and on this ground, I vote to DENY the Petition for Review and to AFFIRM the assailed
Resolution of the then Executive Secretary Fulgencio S. Factoran, Jr.
Melencio-Herrera, Gutierrez, Jr., Cruz, Sarmiento, JJ., concur.
[G.R. Nos. 100382-100385. March 19, 1997]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIO TABACO, accused-appellant.
DECISION
HERMOSISIMA, JR., J.:
In four related informations, Mario Tabaco was charged with four counts of Murder for shooting to
death on March 22, 1987 Capt. Oscar Tabulog (Criminal Case No. 10-259), Ex-Mayor Jorge Arreola
(Criminal Case No. 10-270), Felicito Rigunan (Criminal Case No. 10-284) and Pat. Romeo Regunton
(Criminal Case No. 10-317). Except for the names of the victims, the informations in these four (4)
cases identically read:
"That on or about March 22, 1987, in the Municipality of Aparri, Province of Cagayan, and within the
jurisdiction of this Honorable Court, the said accused Mario Tabaco, armed with a gun, with intent to
kill, with evident premeditation and with treachery, did then and there wilfully, unlawfully and
feloniously assault, attack and shoot one [name], inflicting upon him several wounds which caused his
death.
Contrary to Law."[1]
In Criminal Case No. 10-316, accused was charged in the following information with the complex
crime of Homicide and Frustrated Homicide for shooting to death Jorge Siriban, Jr. and the wounding
of Sgt. Benito Raquepo:
"That on or about March 22, 1987, in the municipality of Aparri, province of Cagayan, and within the
jurisdiction of this Honorable Court, the said accused, Mario Tabaco, armed with a gun, with intent to
kill, did then and there wilfully, unlawfully and feloniously assault, attack and shoot Jorge Siriban, Jr.,
and S/Sgt. Benito Raquepo, inflicting upon them wounds on their bodies, which wounds sustained by
Jorge Siriban, Jr., caused his death.
That the accused had performed all the acts of execution (with respect to the victim Sgt. Benito
Raquepo; which would have produced the crime of Homicide as a consequence but which
nevertheless, did not produce it by reason of causes independent of his own will."[2]
All cases were consolidated before Branch 10 of the Regional Trial Court of Aparri, Cagayan.
The mass of evidence for the prosecution, as found by the trial court, is as follows:
"In the evening of March 22, 1987, the 17th PC stationed at Aparri, Cagayan, under then Lt. James
Andres Melad, sponsored a cock derby, under the name of Jose Ting, at the Octagon Cockpit Arena
located at Aparri, Cagayan.
This being so, peace officers in uniform with long firearms were assigned as guards to maintain peace
and order at the cockpit arena namely: (1) Sgt. Benito Raquepo; (2) CIS Roque P. Datugan, both
from the 117th PC and (3) Pat. Andles Semana, INP, Aparri, Cagayan. Accused Mario Tabaco who was
in civilian clothes claims to have been also assigned by his Commanding Officer of 117th PC, to verify
the presence of NPAs and assist in the protection of VIPs in the cockpit arena, bringing with him his
M-14 issued firearm.
Other peace officers who came to participate were: (1) Policeman Mariano Retreta of INP, Buguey,
Cagayan, who arrived with the deceased Jorge Siriban and Licerio Antiporda, Jr., Licerio Antiporda II;
(2) Sgt. Rogelio Ferrer of 117th PC Company; (3) Policeman Romeo Regunton (deceased) who was
also armed, arrived in company with the deceased Ex-Mayor Arreola; (4) Fireman Rogelio
Guimmayen, INP Buguey; (5) Pat. Barba; and (6) CIC PC Paragas.
At about nine (9) o'clock in the evening of same date, the group of the late Mayor Jorge Arreola of
Buguey, Cagayan, arrived at the cockpit arena. His companions were (1) Antonio Villasin; (2) Rosario
Peneyra; (3) victim Lorclo Pita, Jr. and/or five (5) of them including the Mayor. They occupied and
were (4th row) north western part cockpit-gate. Others seated with the Mayor were: (1) the late
Capt. Oscar Tabulog; (2) the late Pat. Romeo Regunton, who was at the back of the mayor; (3) the
late Felicito Rigunan. The accused CIC Tabaco was seated on the arm of the bench situated at the
lower portion of the arena about more than three (3) meters away, (infront and a little bit in the
west), from the place where the late Mayor and his group were seated (at the 4th row of seats upper
portion). During the ocular inspection conducted, the Court noticed the distance to be more than
three (3) meters, and/or probably 4-5 meters.
At about ten(10) o'clock 1987, while the accused Mario Tabaco was seated as described above, he
suddenly without warning or provocation, shot the late mayor Jorge Arreola, with his M-14 rifle,
followed by several successive burst of gunfire, resulting in the shooting to death of the late Mayor
Arreola, Capt. Oscar Tabulog, Felicito Rigunan and Pat. Romeo Regunton, although the latter
managed to run passing through the western gate near the gaffers cage but was chased by accused
Tabaco. Regunton was later found dead inside the canteen of Mrs. Amparo Go inside the Octagon
cockpit arena.
Pat. Mariano Retreta of INP Buguey, who was then at the Co's canteen, saw the accused going out
rushing from the cockpit arena, at a distance of one meter. Pat. Retreta is a relative and neighbor of
the accused Tabaco in Buguey, Cagayan. He tried to pacify Tabaco telling him 'what is that happened
again Mario.' Meanwhile, Sgt. Benito Raquepo of 117th PC, and one of those assigned to maintain
peace and order at the Octagon cockpit arena, who was at the canteen taking snacks, heard five (5)
successive gun reports coming from inside the cockpit arena. In a little while, he saw the accused
Tabaco coming from inside the cockpit arena. Raquepo advised Tabaco 'Mario relax ka lang' 'Mario
keep calm.' They stood face to face holding their rifles and when Tabaco pointed his gun towards Sgt.
Raquepo, Pat. Retreta grappled for the possession of the gun to disarm Tabaco, and in the process,
the gun went off hitting Sgt. Raquepo and also the late Jorge Siriban who happened to be near
Raquepo. Siriban died on the spot while Raquepo survived his wounds on his legs due to adequate
medical treatment.
There were other persons injured that evening namely: (1) Antonio Chan injured on his right foot; (2)
Salvador Berbano injured on his right forearm and on his right abdomen and (3) Rosario Peneyra on
his face and right shoulder. But, the three, did not file their complaints."[3]
Upon the other hand, the evidence for the defense as stated in the Brief for the Accused-appellant is
as follows:
"Ordered by his commanding officer in the 117th PC Company to assist in the maintenance of peace
and order at the Octagon Cockpit Arena located at Talungan, Aparri, Cagayan on March 22, 1987,
accused Mario Tabaco with his officially issued M-14 rifle and with the basic load of ammunition went
to the Octagon Cockpit arena on March 22, 1987 in compliance to the orders of a superior officer
arriving thereat at about 12:00 o'clock noon, more or less. He directly went inside the cockpit arena
to make some observations and found out that there were several persons inside the said cockpit who
were in possession of firearms, some short and some long, and were seen in different places and/or
corners of the cockpit. Accused did not bother to verify as to why the said persons were allowed to
carry their firearms because of his impressions that if they did not have the authority, the guards of
the main gate of the cockpit would surely have confiscated the same from them. It was his belief then
that they may have come from other agencies of the government, assigned to help in the
maintenance of peace and order in the cockpit, Accused thus seated himself at the lowermost seat
(first step) of the slanted bleachers of the Octagon Cockpit arena on March 22, 1987.
At about 9:00 o'clock that very night of March 22, 1987, while accused was seated at the lowermost
seat of the slanted bleachers of the Octagon Cockpit arena, he heard a gun report fired atop his head.
Having been officially assigned to help in the maintenance of peace and order in the cockpit and that
his presence must be known, his immediate reaction upon hearing the gun report was to fire a
warning shot in the air and directed to the ceiling and/or roof of the Octagon cockpit arena. After
firing a warning shot, his warning was answered by burst of gun fire coming from different directions
inside the cockpit arena, for which reason, he forced to leave and rush outside, holding his M-14 rifle
with the muzzle pointed downwards. As he (accused) rushed towards the main gate of the cockpit
arena, Mariano Retreta and Sgt. Benito Raquepo saw him and who told him, (accused) to relax lang.
Accused testified that when Mariano Retreta and Sgt. Benito Raquepo told him to relax lang, he all the
time thought that the gun reports fired inside the cockpit arena was nothing to said persons. Accused
however, insisted to go out, but in so doing, Mariano Retreta pressed the gun which he was holding
downwards and grabbed said gun from accused. As the gun was pressed by Mariano Retreta, said gun
went off, hitting Sgt. Benito Raquepo and the death of Jorge Siriban, Jr. That because of such
incident, accused had to run away, out of fear to Sgt. Benito Raquepo and the family of Jorge Siriban
who may lay the blame on him. The following morning, accused surrendered to the police authorities
of Lallo, Cagayan, who happened to pass by, not on account of the death of Ex-Mayor Jorge Arreola,
Capt. Oscar Tabulog, Felicito Rigunan and Oscar Regunton which he did not know at the time he
surrendered, but on account of the death of Jorge Siriban, Jr. and the injury sustained by Sgt. Benito
Raquepo."[4]
After trial, the court a quo, in a joint decision dated January 14, 1991, found accused-appellant guilty
as charged on all counts. In giving credence to the version of the prosecution over that of accused-
appellant, it found that:
"From the evidence adduced, it is easily discernible that the prosecution and defense cannot agree on
what actually transpired that night of March 22, 1987, at the Octagon Cockpit Arena, Aparri, Cagayan
leading to the shooting to death of subject victims. For, while the prosecution maintains that it was
the accused Mario Tabaco who shot the victims, the defense insists that he is not the assailant, but
somebody else or others, since the accused merely fired a warning shot upwards the roof of the
cockpit arena.
In fine, the Court is called upon to resolve the issue of credibility versions. 'Where there are directly
conflicting versions of the same incident, the Court, in its search for the truth, perforce has to look for
some facts and circumstances which can be used as valuable tools in evaluating the probability or
improbability of a testimony for after all, the element of probability is always involved in weighing
testimonial evidence. (Carolina Industries, Inc. vs. CMS Stock Brokerage, Inc., et al., L-46908, May
17, 1980, 97 SCRA 734; Lacsan vs. Court of Appeals, et al., L-46485, November 21, 1979, 94 SCRA
461, both citing the case of People vs. Boholst Caballero, L-2349, November 25, 1974, 61 SCRA 180).
Towards this end, the prosecution presented three (3) eyewitnesses, namely: Antonio Villasin, Rosario
Peneyra and Fireman Rogelio Guimmayen in the shooting to death of the deceased victims, Ex-Mayor
Jorge Arreola, Capt. Oscar Tabulog, Romeo Regunton and Felicito Rigunan. Also, the prosecution
presented Sgt. Benito Raquepo, Pat. Mariano Retreta and PC Sgt. Rogelio Ferrer, and three (3)
eyewitnesses in the shooting to death of Jorge Siriban and the wounding of Sgt. Raquepo. So too, the
prosecution presented PC Sgt. Antonio Domingo, Pat. Andres Semana, PC Sgt. Jose Algeria and Pat.
Merlin Bautista, as corroborative witnesses in both situational cases/incidents. As well stated in the
above findings of facts, prosecution witnesses Antonio Villasin and Rosario Peneyra actually saw the
accused Mario Tabaco stood up from his seat at the lower front row and in port arm position directed
his M-14 rifle towards the place of the late Mayor Arreola, and his group at the 4th row upper portion
of the bleachers and fired three successive automatic gun shots that felled Mayor Jorge Arreola, Capt.
Oscar Tabulog, Pat. Romeo Regunton and one Felicito Rigunan. This was corroborated by prosecution
witness Fireman Rogelio Guimmayen who was then ten (10) meters away from the accused, which
was not far, considering that the cockpit arena was well-lighted at that time.
Not only that, immediately after the gun burst of automatic fire, the accused was seen coming out
rushing from inside the cockpit arena by INP Pat. Mariano Retreta and PC Sgt. Raquepo, the former
being a relative and neighbor, pacified accused Tabaco, telling 'what is that happened again Mario,'
while the latter told him 'Mario relax ka lang keep calm.' After which Mariano Retreta grappled for the
possession of the gun assisted by PC Sgt. Rogelio Ferrer when Tabaco refused to stop. Sgt. Ferrer got
the gun M-14 and surrendered it to his Commanding Officer, as corroborated by Sgt. Antonio
Domingo, while in the process of disarming the accused Mario Tabaco, when the gun went of, hitting
the deceased victim Jorge Siriban and Sgt. Raquepo."[5]
The accused admitted that the M-14 rifle which he brought with him to the cockpit arena was heavily
loaded, but when the gun was taken from his possession by Pat. Retreta and PC Sgt. Ferrer, the gun's
magazine was already empty.
The court a quo said further:
"ATTY. VILLENA:
Q: When you took that M-14 from the accused, do you remember if it had a magazine that time?
A: Yes, sir with magazine.
Q: Do you have the magazine now?
A: It is with 117th PC Company, sir.

Q: After taking that M-14 from the accused, did you examine the rifle?
A: Yes, sir, I examined it.
Q: Did you examine the magazine of that rifle?
A: Yes, sir.
Q: Did you examine if there are live bullets?
A: No live bullets, sir. "(TSN, direct examination, Sgt. Ferrer, pp. 44-45, March 26, 1990 session,
stenographer L. Tamayo).
Further, Sgt. Ferrer continued:
"PROSECUTOR ATAL:
Q: You likewise mentioned in your direct examination that when you surrendered this gun, M-14, and
this magazine, there were no live ammunitions in the magazine?
A: There were two remaining bullets, sir.
Q: How many bullets in all?
A: Twenty, sir.
Q: You said you heard first seven gun reports?
A: Yes, sir I heard seven gun reports. (TSN, continuation of direct examination, Sgt. Ferrer, May 14,
1990 session, Stenographer L. Tamayo).
MORE, there is evidence that empty/spent shells of bullets were found inside the cockpit arena (Exh.
'R' & 'R-1', pp. 157-158, record).
ATTY. ARIOLA:
Q: Showing to you Exh. 'R', do you know whose picture is this?
A: Picture of spent shells.
Q: How about Exh. 'R-1', do you know what is this?
A: The same, sir spent shells. (TSN, PC/CIS Sgt. Investigator Jose Algeria, p. 29, Oct. 1, 1990
session, Stenographer L. Tamayo).
Finally, another circumstance which maybe considered as adverse against the accused, is the fact that
he was really arrested and not that he voluntarily surrendered as appearing in the INP Lallo Police
Blotter, as testified to by Pat. Melin Bautista (Exh. 'S', p. 188, record).
Furthermore, it appears that the same accused Mario Tabaco, has still a pending case for murder
before Branch 6, of this Court. (Exh. 'T', p. 187, record).
The Court is impressed with the testimonies of the three prosecution eyewitnesses namely: Antonio
Villasin, Rosario Peneyra and INP Fireman Rogelio Guimmayen who narrated their versions of the
incident with ring of truth, which are both clear and convincing, in regard to the shooting to death by
accused Mario Tabaco of the deceased victims Ex-Mayor Jorge Arreola (Crim. Case No. 10-270), Capt.
Oscar Tabulog (Crim. Case No. 1259), Pat Romeo Regunton (Crim. Case No. 10-317) and the late
Felicito Rigunan (Crim. Case No. 10-284).
Such positive testimonies were corroborated by the testimonies of PC Sgt. Raquepo, PC Sgt. Ferrer
and Pat. Mariano Retreta, who saw the accused rushing outside the cockpit arena holding his M-14
rifle, immediately after the burst of successive and automatic gunfire inside the cockpit arena.
Although they have not seen the accused shoot the four victims (Arreola, Tabulog, Rigunan and
Regunton), yet their corroborative testimonies constitute sufficient combination of all circumstances,
so as to produce a conviction of guilt beyond reasonable doubt. (People vs. Pimentel, 147 SCRA 251;
People vs. Trinidad, 162 SCRA 714), even as such circumstances proved reasonable leads to the
conclusion pointing to the accused Tabaco, to the exclusion of all others, as the author of the crime.
(People vs. Magallanes, 147 SCRA 92; People vs. Macatana, 161 SCRA 235). And, in the face of all
these circumstances, the burden of proof to establish his innocence LIES on the accused, as the ONUS
PROBANDI from that moment is now shifted to the accused. (Dulpo vs. Sandiganbayan, 150 SCRA
138). A resort to circumstantial evidence is in the very nature of things, a necessity, and as crimes
are usually committed in secret and under conditions where concealment is highly probable, and to
require direct testimony would in many cases result in freeing criminals and would deny the proper
protection of society. (People vs. ROA, 167 SCRA 116).
As to the death of Jorge Siriban (Crim. Case No. 10-316) and the wounding of Sgt. Raquepo, there is
no adventure of doubt, that accused Mario Tabaco was the author of the crime charged and thus be
held responsible for the same. The evidence adduced in this case is overwhelming, coming no less
from accused's brothers PC personnel, who, aside from their direct testimonies, are entitled to the
settled rule that they have regularly performed their official duty. (Section 5[M], Rule 131, Revised
Rules of Court).
Accordingly, the Court is not impressed with the defense put up by the accused, even as it does not
inspire confidence, hence, the same deserves no credence.
The accused contends that he merely fired his gun up towards the roof, and that he could have not
shot the four (4) deceased victims with the group of Ex-Mayor Arreola considering the elevation of the
4th step or row in the upper bleachers of the cockpit arena, in relation to where the accused was, the
front row, in much lower elevation. The accused further contends that he could not have shot afore-
said victims, as maybe gleaned from the testimony of Dr. Rivera, especially to wound No. 2, inflicted
upon the body of the late Mayor Arreola.
The Court believes otherwise. In the first place, the three (3) eyewitnesses Antonio Villasin, Rosario
Peneyra and INP Fireman Rogelio Guimmayen, testified that they saw the accused stood up from his
seat and directed his gun M-14 towards the group of Ex-Mayor Arreola who were then at the upper
4th row of cemented seats at the bleachers. They could have been inaccurate of the distance of
meters, as it could have been around 5 meters from where the accused stood up, which is a little bit
west of the group of Ex-Mayor Arreola, who were then facing south, face to face with the accused.
This is true and the same will jibe with the findings of Dr. Rivera, where the gun shot wounds inflicted
upon the body of the late Capt. Tabulog, were on the left portion of his forehead front to back (Wound
No. 1); Wound No. 2, in his left temple; Wound No. 3, below his right clavicle of his right shoulder
and Wound No. 4, on his left thigh downward.
In the case of the late Mayor Arreola his wounds are: Wound No. 1, is on the left side of his head
above the hairline; Wound No. 2, right base of his neck and exited at the upper shoulder base
through and through. Wound No. 3, was on his left lower abdomen and his lower back as exit for
wound Nos. 1 and 2, the relative position of the assailant and the victim is face to face, so with
Wound No. 3. For wound No. 2, the point of entry is higher than the point of exit, but there is a
possibility that the victim Arreola, probably bent forward and the bullet ricocheted.
3. The M-14 rifle (Exh. 'K' and 'K-2') the corpus delicti, presently deposited with 117th PC Company,
It must be noted that the seats in the upper bleachers where the group of the late Mayor stayed were Aparri, Cagayan, is hereby ordered forfeited in favor of the government; Perforce, the Commanding
all cemented including their back rests and the bullets fired from the gun of the accused must have Officer of the 117th PC, Aparri, Cagayan, is peremptorily ordered to deposit to the Acting Branch
rebounded or deflected from surface to surface, on the cemented back rests and seats hitting wound Clerk of Court of this court, the said M-14 rifle with magazines, for proper disposition in accordance
No. 2, on the body of the Mayor and the bodies of Romeo Regunton and Felicito Rigunan. The bullets with law and the rules.
RICOCHETED, at the place where the group of the Mayor stayed. Anent the cemented railguard
4. The accused to pay the costs.
dividing the lower and upper bleachers, the same is not too high so as to obviate the possibility of
hitting the group of the late Mayor Arreola, especially as in this case, when the accused stood up from 5. In the service hereof, the accused shall be entitled to the full length of time, he underwent
his seat and fired at his victims. Witness Rosario Peneyra testified that his wound on his face and preventive imprisonment (March 23, 1987), provided he voluntarily agreed in writing to abide by the
right abdomen must have been caused by the debris of the said cemented railguard which was hit by same disciplinary rules imposed upon convicted prisoners, otherwise, he shall be credited to only
the bullets. four-fifth (4/5) thereof. (Art. 29, NCC; as amended by RA 6127, June 17, 1970; U.S. vs. Ortencio, 38
Phil. 341; People vs. Chavez, 126 SCRA 1).
In the case of the death of Jorge Siriban, there is not much dispute as the evidence adduced is
overwhelming and even the defense admits that Siriban died due to gunshot wounds inflicted upon SO ORDERED."[7] (Underscoring ours)
him during the grappling of the subject gun (Exh. 'K').
Notwithstanding the single penalty imposed by the trial court, accused still interposed the present
The Court believes in the reliability and intrinsic credibility of the prosecution witnesses, there being appeal on the following grounds:
no competent evidence presented for them to falsely testify against the accused. There is no issue of
(1) The trial court erred in convicting Mario Tabaco of the crime of murder in connection with the
motive, as the accused was clearly and positively identified.
deaths of Oscar Tibulog, Jorge Arreola, Felicito Rigunan, and Romeo Regunton.
All told, the Court believes and so holds that herein accused Mario Tabaco is the author/culprit in the
(2) The trial court erred in holding Mario Tabaco liable for homicide on the death of Jorge Siriban and
shooting to death of the deceased victims, Jorge Arreola, Oscar Tabulog, Felicito Rigunan and Romeo
the injury sustained by Benito Raquepo.
Regunton, as well as the deceased Jorge Siriban and the wounding of Benito Raquepo."[6]
(3) The trial court erred in not giving credence to the testimony of accused-appellant Tabaco.
The dispositive part of the decision reads:
The pivotal issue presented in this case is one of credibility. Time and again, we have ruled that when
"WHEREFORE, prescinding from the foregoing, and fortified by the balm of clear judicial conscience,
the issue hinges on the credibility of witnesses vis-a-vis the accused's denials, the trial court's
the Court finds the accused Mario Tabaco guilty beyond reasonable doubt of all the crimes charged
findings with respect thereto are generally not disturbed on appeal,[8] unless there appears in the
against him:
record some fact or circumstance of weight and influence which has been overlooked or the
1. In Criminal Cases Nos. (a) 10-259 (Oscar Tabulog); (b) No. 10-270 (Jorge Arreola); (c) 10-284 significance of which has been misinterpreted.[9] The reason for the rule is eloquently stated in the
(Felicito Rigunan); and (d) 10-317 (Romeo Regunton), involving four (4) murder victims, but declared case of People vs. de Guzman,[10] thus:
to have been prosecuted in one Information; the same being a complex crime under Art. 248, Revised
"In the resolution of factual issues, the court relies heavily on the trial court for its evaluation of the
Penal Code, the accused Mario Tabaco is sentenced to a single penalty of RECLUSION PERPETUA, in
witnesses and their credibility. Having the opportunity to observe them on the stand, the trial judge is
its maximum period, with all the accessory penalties provided for by law, and to pay the heirs of the
able to detect that sometimes thin line between fact and prevarication that will determine the guilt or
deceased victims Oscar Tabulog, Felicito Rigunan and Romeo Regunton, the amount of P50,000.00
innocence of the accused. That line may not be discernible from a mere reading of the impersonal
each for a total of P150,00.00 subject to the lien herein imposed for payment of the appropriate
record by the reviewing court. The record will not reveal those tell-tale signs that will affirm the truth
docket fees if collected, without subsidiary imprisonment in case of insolvency. However, in Criminal
or expose the contrivance, like the angry flush of an insisted assertion or the sudden pallor of a
Case No. 10-270, the accused Mario Tabaco is further ordered to pay the heirs of the late Mayor Jorge
discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply.
Arreola, the grand total amount of P633,500.00, by way of total civil liability, subject to the lien
The record will not show if the eyes have darted in evasion or looked down in confession or gazed
herein imposed for payment of the appropriate docket fees, in case of successful collection, both
steadily with a serenity that has nothing to distort or conceal. The record will not show if tears were
without subsidiary imprisonment in case insolvency.
shed in anger, or in shame, or in remembered pain, or in feigned innocence. Only the judge trying the
2. In Criminal Case No. 10-316 for Homicide with Frustrated Homicide, the accused Mario Tabaco is case can see all these and on the basis of his observations arrive at an informed and reasoned
sentenced to suffer an indeterminate penalty ranging from, ten (10) years and one(1) day Prision verdict."[11]
Mayor as MINIMUM, to Seventeen (17) years, Four(4) months, one (1) day of RECLUSION TEMPORAL
as MAXIMUM, and to pay the heirs of the deceased Jorge Siriban, the amount of P50,000.00, by way
of death indemnity, plus P30,000.00 to Sgt. Benito Raquepo, by way of medical expenses incurred,
subject to the lien herein imposed for payment of the appropriate docket fees in case of successful
collection; both without subsidiary imprisonment in case of insolvency.
After a careful examination of the records, we find no ground or reason to set aside or disturb the trial A: Yes, sir.
court's assessment of credibility of the eyewitnesses when they testified pointing to accused-appellant
Q: You heard three shots according to you, was that successive or automatic?
as the assailant in the shooting of the group of Ex-Mayor Arreola and his companions.
A: Successive, sir.
1. Eyewitnesses Antonio Villasin and Rosario Peneyra, who were with the group of Ex-Mayor Arreola
on that fateful night of March 22, 1989, categorically testified that it was accused-appellant, whom Q: You were seated at the left side of Ex-Mayor Arreola, who was seated on his right side?
they positively identified in court, who fired his M-14 Rifle at their direction hitting the ex-mayor and
A: None, sir.
his companions.
xxx xxx xxx
Villasin's testimony on this point is as follows:
Q: Mr. witness, you said that you saw the deceased holding a gun when you first heard gun shot, will
"COURT:
you please describe the stands (position) of the accused?
Q: You heard gun report, what can you say?
A: Like this. (The witness demonstrated that the accused was standing on a forth (port) arm
A: I saw that he was the one who made the gun report, sir. position).

ATTY ARRIOLA: xxx xxx xxx

Q: Who was that 'he' you are referring to? Q: What did he do with the gun when you saw him?

A: Mario Tabaco, sir. (p. 19, tsn, March 19, 1990) A: He fired the gun, sir.

Q: Why do you say that Mario Tabaco was the one from whom those gun reports come from? Q: To what the gun was directed when he fired the gun?

A: Because he was the only person from whom I saw a gun, sir. A: To Ex-Mayor Arreola, sir.

Q: What did you do also upon hearing those gun reports? ATTY. VILLENA:

A: I had to seek shelter, sir. Q: You said earlier that after the incident you left the cockpit and returned, when you returned, what
did you see?
Q: What happened to Ex-Mayor Arreola?
A: I saw two dead persons, sir.
A: He was hit, sir.
Q: Whose cadavers were these that you saw?
PROSECUTOR MIGUEL:
A: The cadavers of Ex-Mayor Arreola and Capt. Tabulog, sir.
Q: You said that the accused shot Ex-Mayor Arreola, what kind of weapon did he use if you know?
Q: How far was the cadaver of Tabulog to Arreola?
A: M-14, sir.
A: Less than a meter, sir.
xxx xxx xxx
xxx xxx xxx
Q: After the incident (precedent) have you come to learn what happened to Regunton?
Q: When you saw the corpse of Capt. Tabulog, can you identify the person passing as you mentioned?
A: I came to know that he was dead, sir.
A: They have similarity, sir.
Q: Was that all you gathered?
xxx xxx xxx
A: Also Capt. Tabulog, sir.
Q: When you heard first gun shot, can you tell the position of Arreola, you and your companions?
xxx xxx xxx
A: We were sitting at the backrest of the 4th seat, sir.
Q: How many shots did you hear?
Q: Where were you facing?
A: Three (3) shots, sir.
A: We were facing south the arena.
Q: All those three (3) shots were directed to Ex-Mayor?
Q: Where did the first gun shot came from? A: I was outside the cockpit, sir."[12]

A: It came from Mario Tabaco, sir. On cross-examination by the defense counsel, witness Villasin testified, thus:

Q: From what direction? "ATTY. CONSIGNA:

A: Infront of us, sir. Q: You said that after the first gun shot or gun report, Mr. Tabaco was on the first seat downward, is
it not?
Q: Where was he, was he in your front?
A: Mr. Tabaco placed his left foot on the first seat aiming his gun, sir.
A: He was in the first row of seats.
Q: Directly toward the first seat, is that what you mean?
Q: After the first gun shot, what happened?
A: It was directed to Ex-Mayor Arreola.
A: Somebody was killed, sir.
xxx xxx xxx
Q: Who was that?
Q: I want to make it clear, Mr. witness, it was the first gun that you went to hide yourself at the gate
A: Ex-Mayor Arreola, sir.
of the cockpit, is that correct?
xxx xxx xxx
A: After the 3rd gun shot, sir.
COURT:
Q: And these three (3) gun reports, they were in a single successive shot, is it not Mr. witness?
Q: How many gun shot reports did you hear?
A: Yes, sir.
A: Many, sir.
xxx xxx xxx
ATTY. VILLENA:
Q: That person who allegedly passed by you or infront of you prior to the first gun report, did you
Q: You said that you heard more gun shots, can you tell the nature, was there in succession or notice if he had a gun with him?
automatic?
A: He passed by our back, sir.
A: Automatic, sir.
xxx xxx xxx
xxx xxx xxx
Q: And that person according to you was still there when the late Mayor Arreola was shot?
Q: Can you tell us your previous occupation?
A: He was directly behind him when the gun reports were made, sir.
A: An army man, sir.
Q: You mean to say the first gun report?
Q: How long have you been employed with the army?
A: Yes, sir.
A: Five (5) years, sir.
Q: And that first gun report was hit Ex-Mayor Arreola?
Q: As an army before, have you ever been handled an M-14?
A: The three gun reports hit the Mayor, sir."[13]
A: Yes, sir.
For his part, Peneyra testified as follows:
Q: Can you tell us if you are familiar with M-14 being fired?
"ATTY. ARRIOLA
A: Yes, sir.
Q: Do you remember what particular place of the cockpit when you go with Mayor Arreola?
Q: Now, you said earlier that you heard many more shots after you run, would you say that these gun
A: Yes, sir.
shots you heard were fired from M-14 rifle?
Q: What part of the cockpit?
A: Those are that came from M-14, sir.
A: We went up to the bleacher, sir.
Q: Where were you at the time when you heard the automatic gun shot?
Q: Do you remember how the bleachers were arranged inside the cockpit? Q: How do you know that Mayor Arreola was hit?

A: Yes, sir. A: Because I saw it, sir.

Q: How were they arranged? Q: What did you do also?

A: In rows, step by step, sir. A: When Mayor Arreola was already dead, I sought cover because I was also wounded.

COURT: Q: Do you know what happened also to Romeo Regunton?

Q: How many rows? A: Yes, sir.

A: Four rows, sir. Q: What happened to him?

ATTY. ARRIOLA: A: When I was wounded he also said, 'uncle I was also wounded.'

Q: And what row did you stay together with the late Mayor Arreola? Q: What did you tell when he told you that?

A: The late Mayor Arreola and Antonio Villasin took the 4th step, sir. A: I told him, 'you seek cover also my son'.

Q: And how about you? Q: How did Romeo Regunton took cover?

A: We stood at their back west of them, sir. A: He moved slowly by dragging his body along the ground, sir.

Q: By the way, can you tell to the court what were your respective position of the place where you xxx xxx xxx
stayed?
Q: By the way, how far were you from Mario Tabaco who fired upon the person of Mayor Arreola?
A: The late Mayor Arreola and Antonio Villasin sat at the backrest of the fourth step, sir.
A: Probably more than 3 meters, sir."[14]
Q: And how about you, where did you stay also?
On cross-examination, this witness testified as follows:
A: I stood at the right back of Mayor Arreola, sir.
"ATTY. CONSIGNA:
Q: And how about Romeo Regunton?
Q: When for the first time when you were already in the cockpit arena did you see the accused Mario
A: He also stayed at the back of Mayor Arreola, sir. Tabaco?

xxx xxx xxx A: Before the shooting, sir.

Q: While you were in that position together with your companions, do you remember if there was Q: And approximately how many minutes or seconds did you see Mario Tabaco for the first time prior
untoward incident that happened? to the shooting incident?

A: Yes, sir. A: Probably 5 minutes before, sir.

Q: What was that untoward incident that happened? Q: And in that place of the cockpit arena have you seen the accused herein Mario Tabaco?

A: That was the time when Mario Tabaco shot the late Mayor Arreola, sir. A: He sat on the first row of the seats.

Q: Do you know what did Mario Tabaco use in shooting the late Arreola? Q: And sitting on the first row of the bleachers, on what part of the cockpit arena did Mario Tabaco,
the accused sit?
A: Yes, sir.
A: He sat a little bit west of us, sir.
Q: What kind of firearm?
COURT:
A: M-14, sir.
Q: How far?
Q: And do you know if Mayor Arreola was hit when Mario Tabaco shot him?

A: Yes, sir.
A: Probably more than 3 meters, sir.
 xxx xxx xxx

Q: A little bit to the west, do I get from you that he was seated on the western part o the cockpit? COURT:

A: A little to the west, sir. Q: You don't know the person who shot him?

Q: And you together with the late Mayor Arreola were also on the western part of the cockpit? A: It was Mario Tabaco because he was still firing then, sir.

A: We were on the northwest. Q: You do not know the person who shot him?

Q: Mario Tabaco, therefore, the accused in these cases was not directly in front of you? A: It was Mario Tabaco because he was still firing then, sir."[15]

A: A little bit west of us, sir.
Q: It was on that position of the accused Mario Tabaco and your position with the late Arreola on the
northwest when you according to you saw Mario Tabaco fired his gun, is that what you mean?
A: Yes, sir.
Q: That the accused Mario Tabaco was on the first row when he allegedly shot on Mayor Arreola who
was on 4th row, is that what you mean?
The above testimonies of Villasin and Peneyra pointing to accused-appellant as the assailant in the
shooting of the ex-mayor and his companions were corroborated further by the testimony of another
eyewitness in the person of Rogelio Guimmayen. His account of the incident is as follows:
"PROSECUTOR ABAD:
xxx xxx xxx
Q: How far were you from Tabaco when you saw him holding that gun?

A: Mario Tabaco stood up and faced us, sir. A: More or less ten (10) meters, sir.

Q: So while Mario Tabaco stood up and faced towards the direction where you were together with the Q: Where was he at that specific time and place?
late Mayor Arreola still Mario Tabaco was on the floor of the cockpit arena?
A: Inside the cockpit, sir.
A: Yes, sir, on the cemented floor.
Q: Where were you also?
Q: And immediately after you heard the first shot coming from the accused Mario Tabaco considering
A: I was at the stairs, sir.
that you were right behind the late Mayor Arreola, as you have stated in your direct examination you
immediately sought cover? Q: When you saw him what happened if any?

A: I only lay flat to the floor of the cockpit when Mario Tabaco fired three (3) shots. A: When he entered he stopped and then the gun fired and that was the time when I got down, sir.

xxx xxx xxx Q: Did you see to whom he was directing the gun?

Q: At the time you laid flat facing down and you did not come to know that Mayor Arreola was dead A: It was directed to the Mayor's place, sir.
already?
Q: How far was the Mayor from the accused Mario Tabaco?
A: Why not, the first and second shots, I know him that he was already dead.
A: More or less three (3) meters only. There was only one bench between them, sir.
Q: And the three (3) shots that you heard were all directed towards Mayor Arreola?
Q: Did you see the accused firing his gun towards the Mayor?
A: Yes, sir, in our place.
A: With his first shot which was directed to the Mayor that was the time I got down to hide myself,
xxx xxx xxx sir."[16

COURT: On cross-examination, this witness testified as follows:

Q: To whom the 3rd shot directed? "ATTY. CONSIGNA:

A: In our place, sir. Q: So, it was at the time you were inside the cockpit arena that you heard gunfire?

Q: No person was involved on the 3rd shot? A: Yes, sir.

A: That was also the time when Romeo Regunton came toward me and told me that he was also hit. Q: And you did not see who fired that gunfire while you were inside the cockpit arena?
A: When I was inside, I saw Mario Tabaco pointing a gun to the Mayor and the gun went off and that's
the time I took cover, sir.
xxx xxx xxx
Q: And that was the last time you heard burst of gunfire inside the cockpit arena?
A: When I went outside, I heard shots inside and outside."[17]
Set over against the foregoing positive and categorical testimonial declaration of the abovenamed
eyewitnesses for the prosecution is the accused-appellant's bare denial of the charges against him. As
between the positive identification of the accused by the prosecution witnesses and the bare denial of
accused, the choice is not difficult to make. For, it is a settled rule that positive identification by the
prosecution witnesses of the accused as perpetrator of the crime is entitled to greater weight than his
bare denial and explanation.[18]
Likewise, there is no evidence from the record, as none was adduced by accused-appellant, of any ill-
motive on the part of the prosecution witnesses as to why would they testify adversely against
accused-appellant in the way that they did. Well-settled is the rule that where there is no evidence
and nothing to indicate, that the principal witnesses for the prosecution were actuated by improper
motive, the presumption was that they were not so actuated and their testimonies are entitled to full
faith and credit.[19]
2. Accused-appellant contends that eyewitnesses Villasin and Peneyra were not telling the truth when
they testified that it was accused-appellant who was the assailant in the shooting of Ex-Mayor Arreola
and his companions considering that Dr. Rivera, who examined the cadaver of Ex-Mayor Arreola,
testified that the trajectory of the bullets that hit the Ex-Mayor shows that the assailant was on the
same level as the Ex-Mayor, and the trajectory of the third bullet shows that the assailant was at a
higher level as the point of entry was higher than the point of exit. Appellant states that he was
seated at the first row which was the lowest while the Ex-Mayor and his companions were seated at
the fourth row which was the highest. This contention, however, is untenable.
Eyewitnesses Villasin and Peneyra testified that accused-appellant was at the first row of seats of the
slanted bleachers of the cockpit arena, when he stood up, stepped on one of the seats, aimed his rifle
at Ex-Mayor Arreola and his companions and fired at them.[20]
The abovequoted testimonies explain very well why two gunshot wounds found on the cadaver of Ex-
mayor Arreola appear to have been inflicted while he and his assailant were face to face and at the
same level.
Upon the other hand, according to Dr. Rivera, one of the gunshot wounds of Ex-Mayor Arreola had a
point of entry higher than the point of exit because he must have already been lying down when his
wound was inflicted.[21]
Well-established, too, from the evidence on record is accused-appellant's liability for the death of
Jorge Siriban, Jr. and the near-fatal wounding of Sgt. Benito Raquepo.
Not seriously disputed by accused-appellant are the testimonies of Sgt. Benito Raquepo and
policeman Mario Retreta. Sgt. Benito Raquepo testified that at about 9:00 o'clock in the evening of
March 22, 1987 while he was taking his snacks at the canteen of Co located at the left side of the
gate of the cockpit arena, he heard five successive gun reports coming from inside the cockpit arena.
While he was on his way inside the cockpit arena, he saw the accused-appellant coming from inside
the cockpit arena. He told the accused "Mario relax ka lang", after which the accused pointed his gun
at him. At that point in time, Mario Retreta who was among the persons near Mario Tabaco, grabbed
the gun from the latter. It was at that point when the gun went off hitting him on the right thigh and
the bullet exiting on his left thigh. He also saw that Jorge Siriban, who was then about three meters
away from his left side, was hit at his testicles.
Mario Retreta, a policeman and relative of accused-appellant, on the other hand corroborated in part
the testimony of Sgt. Raquepo. He testified that at about 10:00 o'clock in the evening of March 22,
1987, he was at the canteen of Mrs. Co. While thereat, he saw accused-appellant rushing out from
the cockpit arena. Before he saw accused-appellant, he heard a gun report from inside the cockpit
arena. He was then about one meter away from accused-appellant when he noticed Sgt. Raquepo
whom he is acquainted with, and Jorge Siriban who was then standing at the gate of the cockpit
arena. Sgt. Raquepo was facing accused-appellant and at that distance and position, he heard Sgt.
Raquepo said: "Mario keep calm". He also told accused-appellant: "What is that happened again,
Mario." When he saw accused-appellant change his gun position from port arm to horizontal position,
he got near accused-appellant and pressed down the muzzle of the gun when accused appellant
squeezed the trigger hitting Sgt. Raquepo on both thighs and also Jorge Siriban. A certain Sgt. Ferrer
joined in the grapple and was able to take away the gun from accused-appellant.
Sgt. Raquepo survived the gunshot wounds due to adequate medical assistance but Siriban was not
as lucky.
Accused-appellant claims that he did not have the criminal intent to kill Siriban or wound Sgt.
Raquepo, and that the gun would not have been fired in the first place had Mario Retreta, for no
apparent reason, not tried to grab the gun from him, are without merit.
Retreta testified that he grabbed the gun from accused-appellant because the latter changed his gun
from port arm position to horizontal position, and at that instance he thought accused-appellant might
harm Sgt. Raquepo.[22]
Furthermore, even assuming that he lacked criminal intent in the killing of Sgt. Raquepo and the
near-fatal wounding of Siriban, his claim of innocence cannot be sustained. His undisputed act of
firing the gun, which is by itself felonious in total disregard of the consequences it might produce, is
equivalent to criminal intent.
Accused-appellant cannot evade responsibility for his felonious acts, even if he did not intend the
consequences thereof for, in accordance with Art. 4 of the Revised Penal Code, criminal liability is
incurred by any person committing a felony although the wrongful act done be different from that
which he intended.
We note that while the accused was found guilty in all four (4) murder charges and the penalty of
reclusion perpetua should have been imposed on him in all four (4) murder charges, the trial court
imposed the penalty of reclusion perpetua for all four murder charges. The trial court explained the
single sentence for four murder charges in this wise:
"Whether or not the criminal cases Nos. 259, 270, 284 and 317, involving the killings of Oscar
Tabulog, Jorge Arreola, Felicito Rigunan and Romeo Regunton, respectively, should have been
prosecuted under only one Information.
The law provides:
Art. 48. Penalty for complex crimes.
'When a single act constitutes two or more grave or less grave felonies, or when an offense is a
necessary means for committing the other, the penalty for the most serious crime shall be imposed,
the same to be applied in its maximum period. (as amended by Art. No. 400). (Art. 48, Revised Penal
Code).'
Read as it should be, this article provides for two classes of crimes where a single penalty is to be
imposed; first, where the single act constitutes two or more g rave or less grave felonies (delito
compuesto); and second, when the offense is a necessarily means for committing the other (delito
complejo) and/or complex proper (People vs. Pineda, 20 SCRA 748).
In the cases at bar, the Provincial Prosecutor filed four (4) separate Informations of murder, which
should have been otherwise, as the shooting to death of the four (4) victims should have been
prosecuted under one information, involving four (4) murder victims.
The evidence shows that the four (4) victims were FELLED by one single shot/burst of fire and/or
successive automatic gun fires, meaning continuous. Hence, it is a complex crime involving four
murdered victims, under the first category, where a single act of shooting constituted two or more
grave or less grave felonies (delito compuesto), as decided in the cases of People vs. Dama, CA 44
O.G. 3339; People vs. Lawas, 97 Phil. 975; People vs. Pineda, L-26222, July 21, 1967, 20 SCRA 748.
Paraphrasing a more recent decision of the Supreme Court, we say -- as the deaths of Oscar Tahulog,
Jorge Arreola, Felicito Rigunan and Romeo Regunton, in Criminal Cases Nos. 259, 270, 284 and 317
respectively, were the result of one single act of the accused Mario Tabaco, (People vs. Guillen, 85
Phil. 307) the penalty --- is the penalty imposed for the more serious offense. The more serious
offense is murder, the killing have been attended by TREACHERY because the victims were completely
taken by surprise and had no means of defending themselves against Mario Tabaco's sudden attack.
The penalty is imposable in its maximum degree (People vs. Fernandez, 99 Phil. 515), but as the
death penalty is no longer permitted the same is hereby reduced to a single penalty of RECLUSION
PERPETUA for the four (4) murders. (People vs. Herson Maghanoy, GR Nos. 67170-72, December 15,
1989).
Accordingly, in Criminal Case No. 10-316, for homicide with Frustrated Homicide and it appearing also
that the death of Jorge Siriban and the wounding of Benito Raquepo, was the result of one single act
of the accused Tabaco, the applicable penalty is the penalty imposed for the more serious offense.
The more serious offense is HOMICIDE, to be imposed in its maximum degree of reclusion temporal,
which is 17 years, 4 months, 1 day to 20 years. There being no modifying circumstances and applying
the Indeterminate Sentence Law, the penalty that should be imposed, and which is hereby imposed,
upon the accused Mario Tabaco is 10 years and 1 day of Prision Mayor as the minimum, to 17 years,
4 months, 1 day of Reclusion Temporal, as maximum, plus P30,000.00 actual damages for medical
expenses of Benito Raquepo.
It was duly proved beyond doubt that the gun (Exhs. 'K', SN No. 1492932, 'K-2' magazine of M-14
and Exh. 'L' Memo Receipt of M-14 issued to Tabaco), used by the accused, is admittedly an
automatic powerful weapon, more powerful than an M-16 armalite rifle. It is so powerful that the
bullets can penetrate even more than five (5) persons resulting to their deaths. And, this was proven
when, according to witness Rosario Peneyra, the bullets even destroyed the cemented rail guard
separating the lower and upper bleachers of the cockpit arena, and causing wounds on his face and
on his right shoulder. Additionally, we have the used/spent empty shells (Exh. 'R' and 'R-1')."[23]
We hold that the trial court was in error in imposing only a single penalty of reclusion perpetua for all
four murder cases. The trial court holding that a complex crime was committed since "the evidence
shows that the four (4) victims were FELLED by one single shot/burst of fire and/or successive
automatic gun fires, meaning continuous (emphasis ours)"[24] does not hold water.
Of course, to justify the penalty imposed, the trial court relied on the doctrines enunciated in People
vs. Pama[25] (not People vs. Dama, as cited by the trial court), People vs. Lawas,[26] and People vs.
Pineda.[27]
The trial court misappreciated the facts in People vs. Pama. In said case, there was only one bullet
which killed two persons. Hence, there was only a single act which produced two crimes, resulting in a
specie of complex crime known as a compound crime, wherein a single act produces two or more
grave or less grave felonies. In the case at bench, there was more than one bullet expended by the
accused-appellant in killing the four victims. The evidence adduced by the prosecution show that
Tabaco entered the cockpit with a fully loaded M-14 sub-machine gun.[28] He fired the weapon,
which contained 20 rounds of bullets in its magazine, continuously. When the rifle was recovered from
Tabaco, the magazine was already empty. Moreover, several spent shells were recovered from the
scene of the crime. Hence, the ruling enunciated in People vs. Pama cannot be applied. On the
contrary, what is on all fours with the case at bench is the ruling laid down in People vs. Desierto[29].
The accused in that case killed five persons with a Thompson sub-machine gun, an automatic firearm
which, like the M-14, is capable of firing continuously. As stated therein:
"In the case at bar, Article 48 of the Revised Penal Code is not applicable because the death of each
of the five persons who were killed by appellant and the physical injuries inflicted upon each of the
two other persons injured were not caused by the performance by the accused of one simple act as
provided for by said article. Although it is true that several successive shots were fired by the accused
in a short space of time, yet the factor which must be taken into consideration is that, to each death
caused or physical injuries inflicted upon the victims, corresponds a distinct and separate shot fired by
the accused, who thus made himself criminally liable for as many offenses as those resulting from
every singe act that produced the same. Although apparently he perpetrated a series of offenses
successively in a matter of seconds, yet each person killed and each person injured by him became
the victim, respectively, of a separate crime of homicide or frustrated homicide. Except for the fact
that five crimes of homicide and two cases of frustrated homicide were committed successively during
the tragic incident, legally speaking there is nothing that would connect one of them with its
companion offenses." (emphasis ours)
In Desierto, although the burst of shots was caused by one single act of pressing the trigger of the
Thompson sub-machine gun, in view of its special mechanism, the person firing it has only to keep
pressing the trigger with his finger and it would fire continually. Hence, it is not the act of pressing
the trigger which should produce the several felonies, but the number of bullets which actually
produced them.[30]
The trial court also misread People vs. Pineda.[31] True, the case of Pineda provided us with a
definition of what a complex crime is. But that is not the point. What is relevant is that Art. 48 was
not applied in the said case because the Supreme Court found that there were actually several
homicides committed by the perpetrators. Had the trial court read further, it would have seen that the
Supreme Court in fact recognized the "deeply rooted x x x doctrine that when various victims expire
from separate shots, such acts constitute separate and distinct crimes."[32] Clarifying the
applicability of Art. 48 of the Revised Penal Code, the Supreme Court further stated in Pineda that "to
apply the first half of Article 48, x x x there must be singularity of criminal act; singularity of criminal
impulse is not written into the law."[33] (emphasis supplied) The firing of several bullets by Tabaco,
Promulgated:
although resulting from one continuous burst of gunfire, constitutes several acts. Each person, felled
by different shots, is a victim of a separate crime of murder. There is no showing that only a single April 4, 2011
missile passed through the bodies of all four victims. The killing of each victim is thus separate and
x-----------------------------------------------------------------------------------------x
distinct from the other. In People vs. Pardo[34] we held that:

"Where the death of two persons does not result from a single act but from two different shots, two
separate murders, and not a complex crime, are committed."
Furthermore, the trial court's reliance on the case of People vs. Lawas[35] is misplaced. The doctrine
enunciated in said case only applies when it is impossible to ascertain the individual deaths caused by
numerous killers. In the case at bench, all of the deaths are attributed, beyond a shadow of a doubt,
to the accused-appellant.
Consequently, the four murders which resulted from a burst of gunfire cannot be considered a
complex crime. They are separate crimes. The accused-appellant must therefore be held liable for
each and every death he has caused, and sentenced accordingly to four sentences of reclusion
perpetua.
DECISION
PERALTA, J.:
For consideration of this Court is the Decision[1] dated April 22, 2008 of the Court Appeals (CA) in
CA- G.R. CR-HC No. 00499, affirming with modification the Decision[2] dated October 28, 2004 of the
Regional Trial Court (RTC) of Valenzuela City, Branch 171, finding Appellants Dima Montanir, Ronald
Norva and Eduardo Chua, guilty beyond reasonable doubt of the crime of Kidnapping under Article
267 of the Revised Penal Code, as amended.
The records bear the following factual antecedents:

WHEREFORE, no reversible error having been committed by the trial court in finding accused-
appellant guilty of four (4) counts of Murder and one (1) count of Homicide with frustrated homicide,
the judgment appealed from should be, as it is, hereby AFFIRMED, with the MODIFICATION that four
sentences of reclusion perpetua be hereby imposed.
Costs against accused-appellant.
SO ORDERED.
Padilla, (Chairman), Bellosillo, Vitug, and Kapunan, JJ.,concur.
SECOND DIVISION
Josie Herrera, Robert Uy, Alicia a.k.a. Alice Buenaflor, together with appellants Ronald Norva and
Eduardo Chua, on December 17, 1997, concocted a plan to kidnap Rafael Mendoza, and after several
days of conducting surveillance on their intended victim, on January 5, 1998, they decided to kidnap
Rafael in Ali Mall, Cubao, Quezon City. However, the intended kidnapping failed, because Rafael did
not show up at the said place. On February 5, 1998, a second attempt was made, but they
encountered an accident before they could even execute their original plan.
Around 5:30 a.m. of February 17, 1998, Alicia called up Rosalina Reyes, a partner of Rafael, to tell
her that she wanted to meet her and Rafael at Jollibee, BBB, Valenzuela City to settle the former's
loan of P350,000.00. She requested Rosalina to bring the land title which she was given as collateral
for the said loan.

PEOPLE OF THE PHILIPPINES, Rosalina and Rafael arrived at Jollibee ahead of Alicia. Eventually, around 9:15 a.m. of the same date,
Alicia showed up outside the store aboard a car. She was with appellant Ronald Norva. Alicia
Plaintiff-Appellee,
motioned Rosalina and Rafael to approach the car, which the two did as requested. While inside the
- versus - vehicle, Alicia introduced appellant Ronald as her cousin. Later on, Alicia informed Rosalina and Rafael
that she would pay them at her place.
DIMA MONTANIR, RONALD NORVA and EDUARDO CHUA,
When the car passed by the street where Alicia's house was located, Rosalina asked the former where
Accused-Appellants.
they were going. Alicia answered that they had to drop by the house of her financier who agreed to
G.R. No. 187534 redeem her title and substitute as her creditor. Trusting Alicia, Rosalina and Rafael did not protest.
They finally reached a house in Ciudad Grande, Valenzuela City.
Present:
Thereafter, appellant Ronald alighted from the vehicle and talked to a man inside a store, later
CARPIO, J., Chairperson,
identified as Jonard Mangelin. The gate of the house was then opened by appellant Dima. The car
PERALTA, proceeded to the garage and Rosalina and Rafael were asked to go inside the house. Rosalina
followed Alicia, while Rafael trailed Rosalina as they entered through a kitchen door. They passed by a
ABAD, man (Jessie Doe) who was washing his hands in the sink. While Rosalina was walking behind Alicia,
MENDOZA, and she suddenly heard a dull moan coupled with the sound of stomping feet. She looked back at the
direction where the sounds came from and saw Rafael being forcibly dragged inside a room. She
SERENO,* JJ. decided to look for Rafael and on her way, she saw Jessie Doe place his hand on Rafael's mouth and
poke a gun at him. Rafael struggled to get free. Rosalina pleaded with Jessie Doe to have pity on
Rafael because of his existing heart ailment. Appellant Ronald rushed towards her, poked a gun at her
mouth, tied her to a bed and warned her not to make any noise. He told her that all they want is her
money, upon which, Rosalina said that if they really wanted money, they should untie Rafael, who
then appeared to be on the verge of having a heart attack. Rosalina was untied and she immediately
rushed to Rafael and began pumping his chest. She asked Jonard, who had just entered the room, to
help her pump Rafael's chest while she applied CPR on the latter. Jonard did as told. While CPR was
being administered, appellant Dima started removing all of Rafael's personal belongings, which
include his ring, wallet, watch and other items inside his pocket, and passed them on to appellant
Ronald.
Afterwards, appellant Ronald instructed Jonard to take Rosalina to another room. While inside the
room where she was brought, Rosalina begged Jonard to help her escape. Jonard was moved by
Rosalina's plea and agreed to help her. During their conversation, Jonard told Rosalina that two
women had tipped them off as the kidnap victims. When asked who they were, Jonard refused to
reveal their identities.
Rosalina was transferred to the master's bedroom around 12:00 noon because certain female visitors
arrived. After the visitors left, Rosalina was returned to the room where she was previously taken.
Rosalina asked Jonard about Rafael's condition, to which he replied that Rafael would be brought to
the hospital. A little later, at around 1 p.m., Jonard went to check on Rafael and confirmed that he
was still alive.
Around 2:00 p.m., Rosalina heard the sound of someone being pummelled. Feeling nervous, she
asked Jonard the whereabouts of Rafael and was told that he was brought to the hospital. But
unknown to Rosalina, Rafael had just died and his body was placed inside the trunk of a car.
Around 6:30 p.m., Rosalina was informed that she will be brought to another safe house. She was
taken to a car and placed at the back seat, together with Jonard and three other men, later identified
as Larry, Jack and Boy. The driver of the car was appellant Ronald. Appellant Ronald instructed Jonard
to cover Rosalina's head with a jacket which Jonard did. As they were about to leave, the man seated
beside Ronald started to talk. Rosalina recognized the voice of Robert. She then lifted the jacket
covering her head and was able to confirm that the one talking was Robert. Rosalina cried, Robert,
Robert, why did you do this, we did not do anything to you and Robert responded, Pasensiyahan na
lang tayo.
By 10:00 p.m., they arrived at a certain house in Pandi, Bulacan where there was no electricity. Thus,
they lit candles for illumination. Rosalina found the house familiar and concluded that it was Alicia's.
Rosalina was brought to a room on the second floor and while inside the room, she was told by one of
the men guarding her that one of the leaders wanted to talk to her. Per the leader's instruction, the
guard put out the candle light. The man then seated himself beside Rosalina and warned her against
escaping as they were a large and armed group. Rosalina recognized the voice as that of Robert's.
Before he left the room, Robert gave instructions to Jonard and the other men inside. Meanwhile, the
group started digging a pit at the back of the same house near the swimming pool.
Around 3:00 a.m. of the following day (February 18), the group buried Rafael's body in the pit.
Thereafter, Robert instructed appellant Ronald to tell Jonard that the latter should kill Rosalina, which
Jonard refused to do. Nonetheless, Robert instructed Jonard and the others to guard Rosalina well, as
he himself would deal with her upon his return.
Rosalina heard the car leave around 5:00 a.m. of the same day. Sensing that Jonard was sympathetic
to her, Rosalina begged him again to help her escape for the sake of her children.
When electricity was restored around 8 p.m., one of the men guarding Rosalina turned off the light
inside the room. The room was only illuminated by a light coming from the hallway. Rosalina saw a
person wearing a wig and sunglasses enter the room. Rosalina recognized him as Robert. Trying to
mimic a woman by modulating his voice, Robert told her that Rafael was in the hospital and that he
could still sign a check. He asked Rosalina the whereabouts of the other land titles and the identities
of the other financiers whom she knew. Rosalina replied in the negative. Robert angrily poked a gun
at her and shouted, That's impossible, and then left the room. He gave instructions to his members
and left.
At 9:00 p.m., Jonard went to Rosalina and told her about Robert's order to kill her, which caused the
latter to panic and cry. She then implored the help of Jonard for her escape. Afterwards, Jonard went
to his companions Larry, Jack and Boy and told them that he would help Rosalina escape. His
companions immediately cocked their guns and an argument ensued. Rosalina talked to them and
begged them all to spare her life. One of Jonard's companions told Rosalina that if they would allow
her to escape, they too would get into trouble. Taking advantage of the situation, Rosalina suggested
that all of them should escape. They all agreed to escape in the early morning.
Around 5:00 a.m., Rosalina, Jonard, Larry, Jack and Boy left the safe house. They walked through a
rice field for about 30 minutes and then boarded a jeepney bound for Balagtas, Bulacan. From
Balagtas, they took a bus going to Cubao and arrived at 7:30 a.m. Rosalina pawned her pieces of
jewelry for P1,500.00 and gave the P1,000.00 to Larry, Jack and Boy. The three told Jonard to stay
with Rosalina so that she would have a witness and, in case Rosalina would further need their help,
left their address with Jonard.
When the three left, Rosalina immediately called Rafael's brother Tito, and related what happened to
her and his brother. When Tito asked Jonard which hospital Rafael was brought to, Jonard revealed to
Rosalina that Rafael died at the safe house in Ciudad Grande, Valenzuela City. Rosalina called her
lawyer, Atty. Teresita Agbi and asked her to meet them at Farmer's, Cubao. When Atty. Agbi arrived,
she accompanied them to the Department of Interior and Local Government (DILG) where an
investigation was conducted.
The following day, at 4:00 a.m., two groups from the DILG were formed to arrest Alicia, Josie, the
appellants, and Robert. Alicia and Josie were not at their homes, while appellants Ronald and Dima
were arrested at the residence of Robert. While at the DILG office, Rosalina positively identified
appellants Ronald and Dima as her kidnappers. Meanwhile, Jonard accompanied the police authorities
to the safe house in Pandi, Bulacan and showed them where the body of Rafael was buried. The
remains of Rafael was later on exhumed.
Thereafter, two Informations were filed with the RTC of Valenzuela City (Branch 171), with the
following allegations:
Criminal Case No. 123-V-98
That on or about the 17th day of February 1998 in Valenzuela, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually
helping one another, being then private person, did then and there wilfully, unlawfully and feloniously
kidnap one ROSALINA REYES against her will and detained her, thereby depriving her of her liberty
for a period of two days.
 Chua are ordered to pay jointly and severally the amount of P50,000.00 as civil indemnity to the heirs
of the victims.
CONTRARY TO LAW.
Costs against appellants.
Criminal Case No. 124-V-98
SO ORDERED.
That on or about the 17th day of February 1998 in Valenzuela, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually Hence, the present appeal.
helping one another, being then a private person, did then and there wilfully, unlawfully and
In their respective Briefs, appellants raised the following assignment of errors:
feloniously kidnap one RAFAEL MENDOZA against his will and detained him, thereby depriving him of
his liberty and on the occasion thereof, the death of the victim resulted. DIMA MONTANIR:

CONTRARY TO LAW. I.

Upon arraignment, with the assistance of counsel, Jonard and appellants Ronald, Dima and Eduardo, THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE INCONSISTENT AND INCREDIBLE
pleaded not guilty to the crime charged. Robert Uy, Alice Buenaflor and Jessie Doe remained at-large TESTIMONIES OF THE PROSECUTION WITNESSES.
during the trial of the case. Jonard was later on discharged as a state witness. Afterwards, the trial on
II.
the merits ensued.
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT DIMA MONTANIR GUILTY
On October 28, 2004, the trial court rendered judgment against the appellants for the crime of
BEYOND REASONABLE DOUBT OF THE CRIME CHARGED DESPITE THE PATENT WEAKNESS OF THE
kidnapping, the dispositive portion of which, reads:
PROSECUTION'S EVIDENCE.
WHEREFORE, in view of the foregoing, accused DIMA MONTANIR, RONALD NORVA, and EDUARDO
EDUARDO CHUA:
CHUA are hereby found GUILTY beyond reasonable doubt of the crime of kidnapping and in
accordance with Article 267 of the Revised Penal Code, as amended, this Court hereby imposes the I.
penalty of DEATH on accused NORVA and MONTANIR. As regards accused CHUA, this Court hereby
imposes the penalty of reclusion perpetua. THE DECISION IS NOT IN ACCORD WITH LAW AND THE EVIDENCE.

Further, accused Montanir, Norva and Chua are hereby held jointly and severally liable to pay the II.
heirs of Mendoza the amount of Php 71,000.00 in actual damages and Php 50,000.00 as moral THE TRIAL COURT GRAVELY ERRED IN FINDING APPELLANT CHUA A CONSPIRATOR TO THE
damages. COMMISSION OF KIDNAPPING.
As for accused JOSIE HERRERA, the Court hereby ACQUITS her on reasonable doubt of the charge of RONALD NORVA:
kidnapping. Consequently, The Jail Warden of Valenzuela City Jail is hereby ordered to cause the
immediate release of the said accused from detention unless she is otherwise being detained for some I.
other legal and lawful cause. THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE INCONSISTENT AND INCREDIBLE
With regard to accused ALICE BUENAFLOR, ROBERT UY and one JESSIE DOE, let the cases against TESTIMONIES OF THE PROSECUTION WITNESSES.
them be ARCHIVED pending their apprehension. Meantime, let an alias warrant issue for their II.
apprehension.
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT RONALD NORVA GUILTY
Considering the penalty imposed on accused MONTANIR, NORVA and CHUA, let the entire records of BEYOND REASONABLE DOUBT OF THE CRIME CHARGED DESPITE THE PATENT WEAKNESS OF THE
these cases be elevated to the Court of Appeals for appropriate review of the judgment herein PROSECUTION'S EVIDENCE.
rendered.
First of all, it must be emphasized that the crime committed by the appellants, as ruled by the trial
SO ORDERED. court and affirmed by the CA, is the special complex crime of Kidnapping with Homicide. After the
On automatic review, the CA affirmed the conviction with modification on the penalty imposed, thus: amendment of the Revised Penal Code on December 31, 1993 by Republic Act No. 7659, Article 267
of the Revised Penal Code, now provides:

Kidnapping and serious illegal detention. - Any private individual who shall kidnap or detain another,
WHEREFORE, in the light of the foregoing, the impugned Decision is AFFIRMED with MODIFICATION or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to
that the penalty of death imposed on accused Montanir and Norva is hereby modified to reclusion death:
perpetua to conform to and in accordance with Republic Act No. 9346. Appellants Montanir, Norva and
1. If the kidnapping or detention shall have lasted more than three days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or
if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, except when the accused is any of the
parents, female or a public officer;
The penalty shall be death where the kidnapping or detention was committed for the purpose of
extorting ransom from the victim or any other person, even if none of the circumstances above-
mentioned were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to
torture or dehumanizing acts, the maximum penalty shall be imposed.
As expounded in People v. Mercado:[3]
In People v. Ramos,[4] the accused was found guilty of two separate heinous crimes of kidnapping for
ransom and murder committed on July 13, 1994 and sentenced to death. On appeal, this Court
modified the ruling and found the accused guilty of the "special complex crime" of kidnapping for
ransom with murder under the last paragraph of Article 267, as amended by Republic Act No. 7659.
This Court said:
x x x This amendment introduced in our criminal statutes the concept of 'special complex crime' of
kidnapping with murder or homicide. It effectively eliminated the distinction drawn by the courts
between those cases where the killing of the kidnapped victim was purposely sought by the accused,
and those where the killing of the victim was not deliberately resorted to but was merely an
afterthought. Consequently, the rule now is: Where the person kidnapped is killed in the course of the
detention, regardless of whether the killing was purposely sought or was merely an afterthought, the
kidnapping and murder or homicide can no longer be complexed under Art. 48, nor be treated as
separate crimes, but shall be punished as a special complex crime under the last paragraph of Art.
267, as amended by RA No. 7659.
This Court further discussed the nature of the special complex crime of Kidnapping with Homicide in
People v. Larraaga,[5] thus
A discussion on the nature of special complex crime is imperative. Where the law provides a single
penalty for two or more component offenses, the resulting crime is called a special complex crime.
Some of the special complex crimes under the Revised Penal Code are (1) robbery with homicide,[6]
(2) robbery with rape,[7] (3) kidnapping with serious physical injuries,[8] (4) kidnapping with murder
or homicide,[9] and (5) rape with homicide.[10] In a special complex crime, the prosecution must
necessarily prove each of the component offenses with the same precision that would be necessary if
they were made the subject of separate complaints. As earlier mentioned, R.A. No. 7659 amended
Article 267 of the Revised Penal Code by adding thereto this provision: "When the victim is killed or
dies as a consequence of the detention, or is raped, or is subjected to torture or dehumanizing acts,
the maximum penalty shall be imposed; and that this provision gives rise to a special complex crime.
In the cases at bar, particularly Criminal Case No. CBU-45303, the Information specifically alleges
that the victim Marijoy was raped "on the occasion and in connection" with her detention and was
killed "subsequent thereto and on the occasion thereof." Considering that the prosecution was able to
prove each of the component offenses, appellants should be convicted of the special complex crime of
kidnapping and serious illegal detention with homicide and rape. It appearing from the overwhelming
evidence of the prosecution that there is a "direct relation, and intimate connection"[11] between the
kidnapping, killing and raping of Marijoy, rape cannot be considered merely as an aggravating
circumstance but as a component offense forming part of the herein special complex crime. It bears
reiterating that in People vs. Ramos,[12] and People vs. Mercado,[13] interpreting Article 267, we
ruled that "where the person killed in the course of the detention, regardless of whether the killing
was purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no
longer be complexed under Article 48, nor be treated as separate crimes, but shall be punished as a
special complex crime under the last paragraph of Article 267." The same principle applies here. The
kidnapping and serious illegal detention can no longer be complexed under Article 48, nor be treated
as separate crime but shall be punished as a special complex crime. At any rate, the technical
designation of the crime is of no consequence in the imposition of the penalty considering that
kidnapping and serious illegal detention if complexed with either homicide or rape, still, the maximum
penalty of death shall be imposed.
In this particular case, the Information specifically alleges that the appellants wilfully, unlawfully and
feloniously kidnapped Rafael Mendoza against his will and detained him, thereby depriving him of his
liberty and on the occasion thereof, the death of the victim resulted. The trial court, in its decision,
particularly in the dispositive portion, merely stated that the appellants were found guilty beyond
reasonable doubt of the crime of kidnapping, however, its mention of the phrase, in accordance with
Article 267 of the Revised Penal Code, as amended, this Court hereby imposes the penalty of DEATH
on accused Norva and Montanir, clearly refers to the crime committed as that of the special complex
crime of Kidnapping with Homicide. The appellants, therefore, were correctly punished under the last
paragraph of Article 267 as the evidence presented during the trial, in its entirety, undoubtedly
proves that the death of Rafael Mendoza, although of natural causes, occurred on the occasion of the
kidnapping.
Delving on the arguments presented by the appellants in this Court, their corresponding briefs pose a
single common argument the prosecution did not present sufficient evidence to prove beyond
reasonable doubt that they committed the crime charged against them. In particular, they questioned
the inconsistent testimonies of the witnesses for the prosecution. According to them, the said
inconsistent statements from the witnesses, tarnish their credibility.
This Court finds otherwise.
The question of credibility of witnesses is primarily for the trial court to determine.[14] For this
reason, its observations and conclusions are accorded great respect on appeal.[15] This rule is
variously stated thus: The trial court's assessment of the credibility of a witness is entitled to great
weight. It is conclusive and binding unless shown to be tainted with arbitrariness or unless, through
oversight, some fact or circumstance of weight and influence has not been considered.[16] Absent
any showing that the trial judge overlooked, misunderstood, or misapplied some facts or
circumstances of weight which would affect the result of the case, or that the judge acted arbitrarily,
his assessment of the credibility of witnesses deserves high respect by appellate courts.[17]
Appellants claim that Jonard, a witness for the prosecution, stated in his Sinumpaang Salaysay that
he was the one who whispered to appellant Ronald to transfer Rosalina to another room so that the
latter would have no idea that Rafael was in a critical condition, but during trial, Jonard testified that
it was Ronald who instructed him to transfer Rosalina to a different room. Appellants also point out
that in the same sworn statement, Jonard averred that he resided in Taguig since October, 1987,
which is contrary to what he testified in court that he resided in that same place since 1997. In
addition, appellants further argue that in her testimony, Rosalina declared that she was with four men
seated at the back of the car when she was brought to Pandi, Bulacan, however, Jonard, in his own
testimony, stated that there were four of them including Rosalina seated at the back of the car.
A close reading of the above inconsistencies asserted by the appellants show that the same refer only
to minor details and collateral matters and do not affect the veracity and weight of the testimonies of
the witnesses for the prosecution. What really prevails is the consistency of the testimonies of the
witnesses in relating the principal occurrence and positive identification of the appellants. Slight
contradictions in fact even serve to strengthen the credibility of the witnesses and prove that their
testimonies are not rehearsed.[18] They are thus safeguards against memorized perjury.[19]
Anent the inconsistencies of the contents of the affidavits and that of the testimonies in court, this
Court has already ruled that testimonies in court are given more weight than affidavits, thus:
x x x x Affidavits are not entirely reliable evidence in court due to their incompleteness and the
inaccuracies that may have attended their formulation.[20] In general, such affidavits are not
prepared by the affiants themselves but by another person (i.e., investigator) who may have used his
own language in writing the statement or misunderstood the affiant or omitted material facts in the
hurry and impatience that usually attend the preparation of such affidavits. As this Court has often
said:
An affidavit, being taken ex-parte, is almost always incomplete and often inaccurate, sometimes from
partial suggestion, and sometimes from want of suggestion and inquiries, without the aid of which the
witness may be unable to recall the connected collateral circumstances necessary for the correction of
the first suggestion of his memory and for his accurate recollection of all that belongs to the
subject.[21]
We have too much experience of the great infirmity of affidavit evidence. When the witness is
illiterate and ignorant, the language presented to the court is not his; it is; and must be, the language
of the person who prepares the affidavit; and it may be, and too often is, the expression of that
person's erroneous inference as to the meaning of the language used by the witness himself; and
however carefully the affidavit may be read over to the witness, he may not understand what is said
in a language so different from that which he is accustomed to use. Having expressed his meaning in
his own language, and finding it translated by a person on whom he relies, into language not his own,
and which he does not perfectly understand, he is too apt to acquiesce; and testimony not intended
by him is brought before the court as his.' (2 Moore on Facts, sec. 952, p. 1105; People v. Timbang,
74 Phil. 295, 299).[22]
For this reason, affidavits have generally been considered inferior to testimony given in open
court.[23]
Incidentally, the CA was correct in stating that Jonard was able to explain and reconcile the minor
discrepancies in his testimony by saying that he whispered to appellant Ronald that Rafael was in a
bad condition and afterwards, it was appellant Ronald who instructed him to transfer Rosalina to
another room, thus:
Atty. Basco:
Referring to the same statement, Mr. Witness, on page 20 of the TSN dated February 24, 1999
referring to the same statement, Mr. Witness, in your statement here when asked:
Q. Then what happened, Mr. Witness, when you answered in the manner? And your answer was:
A Ronald Norva told me, Pare, the old man is in bad condition, you better transfer Mrs. Reyes to
another room so that she could not see the condition of the old man.
Q So which is which Mr. Witness? It was you who gave order or instruction to Mr. Ronald Norva or it
was he who gave instruction?
Atty. Gabi: Can we have the translation of that statement?
Atty. Basco: That is a very inconsistent statement of the witness?
A: This is like this, ma'am.
Atty. Basco: Just answer my question. Which is which, Mr. Witness? Which is the truth, your salaysay
or your testimony on February 24 in open court?
A: The two are true, ma'am, because when I whispered to him that the old man was in a bad
condition he gave me instruction to transfer Mrs. Reyes to another room.[24]
The same is true with his inconsistent statements regarding his time of residence in Taguig, thus:
Q Mr. Witness, you said in your Sinumpaang Salaysay of February 19, 1998 that you were residing in
Taguig at Maharlika Village sometime in October 1987? Do you confirm that?
Atty. Mendoza:
May we ask for the translations, Your Honor.
A No, sir, the actual year is 1997, not 1987.
Q So you are correcting your answer in your salaysay of February 19, 1998 under paragraph No. 13
wherein you answered: Ako po ay nakikitira sa kaibigan kong si Ting sa Muslim Area, Maharlika
Village, Taguig, Metro Manila nuong buwan ng Oktubre, 1987. You are changing the 1987 to 1997?
A The truth is 1997, sir.[25]
Apellant Dima, in his Brief, insists that the prosecution was not able to establish his participation in
the commission of the crime because he was merely the house helper of the safe house in Ciudad
Grande, Valenzuela, when the kidnappers and the victims arrived. In the same vein, appellant Ronald
asserts that there was no convincing evidence presented by the prosecution that will point to his clear
participation in the crime because he was just the driver of the car that brought the victims to the
place where the latter were kept. Appellant Eduardo also insists that he was not a participant in the
offense charged in the Information. Basically, the appellants deny any participation in the kidnapping.
In convicting the appellants, the trial court, based on the evidence presented, naturally found the
existence of conspiracy among the perpetrators. Conspiracy exists when two or more persons come to
an agreement concerning the commission of a felony and decide to commit it.[26] Verily, when
conspiracy is established, the responsibility of the conspirators is collective, not individual, that render
all of them equally liable regardless of the extent of their respective participations, the act of one
being deemed to be the act of the other or the others, in the commission of the felony.[27] Each
conspirator is responsible for everything done by his confederates which follows incidentally in the
execution of a common design as one of its probable and natural consequences even though it was
not intended as part of the original design. Responsibility of a conspirator is not confined to the
accomplishment of a particular purpose of conspiracy but extends to collateral acts and offenses
incident to and growing out of the purpose intended.[28] Conspirators are held to have intended the
consequences of their acts and by purposely engaging in conspiracy which necessarily and directly
produces a prohibited result, they are, in contemplation of law, chargeable with intending that Q And what did you see, Mr. Witness?
result.[29] Conspirators are necessarily liable for the acts of another conspirator unless such act
A I saw Jess and Dems poking a gun to (sic) Mr. Mendoza.
differs radically and substantively from that which they intended to commit.[30] As Judge Learned
Hand put it in United States v. Andolscheck,[31] when a conspirator embarks upon a criminal venture Q Then what happened, Mr. Witness, when they poked a gun?
of indefinite outline, he takes his chances as to its content and membership, so be it that they fall
A When they poked a gun and placed the hands of Mr. Mendoza at his back they forcibly entered the
within the common purposes as he understands them.
room.[34]
A scrutiny of the records show that the trial court did not err in finding conspiracy among the
WITNESS ROSALINA
appellants, as they each played a role in the commission of the crime. The trial court correctly found
the denial of appellant Dima that he had knowledge of the kidnapping, unbelievable. The appellants Q And then what happened, Ms. Witness?
bare denial is a weak defense that becomes even weaker in the face of the prosecution witnesses
positive identification of him. Jurisprudence gives greater weight to the positive narration of A And suddenly Jonard Mangelin entered.
prosecution witnesses than to the negative testimonies of the defense.[32] The trial court ruled: Q And what happened?
As for accused Montanir, again, this Court finds the testimonies of prosecution witnesses more A I pleaded to him to help me in pumping.
credible than his testimony applying the same principle that evidence to be believed must not only
proceed from a mouth of a credible witness but must be credible in itself, such that the common Q What did he do?
experience and observation of mankind can show it as probable under the circumstances. A And he helped me.
Certainly, this Court is not convinced by accused Montanir's claim that he was at Ciudad Grande Q After helping you pumping Mr. Mendoza (sic), what happened to Mr. Mendoza?
because he was a house boy of accused Chua after he admitted the circumstances under which he
has to live there a few days before the victims were brought there. A While we were pumping Mr. Mendoza's chest, Dima Montanir was busy removing the things of Mr.
Mendoza.
To begin with, this Court does not buy accused Montanir's explanation that he transferred to Chua
because he was looking for a permanent job is hardly credible because he himself admitted that when Q When you said things to which are you referring to?
he was brought by accused Uy to the residence of accused Chua at Ciudad Grande, it was the
A His wallet, watch, ring and all the things in his pocket and gave it to Ronald Norva.[35
understanding that it would be accused Uy who would be paying his salary. Why would accused Uy
pay the salary of accused Montanir if he was to work as a house boy of accused Chua? Evidently, the xxxx
only plausible reason why accused Uy would pay the salary of accused Montanir is because he was
A When we returned to the DILG, the persons arrested were already there and when I saw them I
actually working for the former and only posted in the house of accused Chua at Ciudad Grande to
recognized them that they were the ones.
play his part in the execution of the planned kidnapping. This conclusion is bolstered by accused
Montanir's admission that he never even spoke with accused Chua during all those times that he Q Could you tell us the people whom you said were there?
stayed at accused Chua's residence as in fact, he took orders from accused Uy.
A Dima Montanir.
Moreover, this Court finds it rather perplexing that accused Montanir would suddenly go back to the
Q Can you point to him?
house of accused Uy on 19 February 1998 on the shallow reason that he had no companion at Ciudad
Grande when precisely he said he was hired as a caretaker thereat while the regular boy was on (Witness pointing to a man inside the Courtroom, whom when asked his name, answered: Dima
vacation.[33] Montanir).

The above conclusion was bolstered by the positive identification of the same appellant and his exact Q And who else, Ms. Witness?
participation in the execution of the crime, by the witnesses for the prosecution, thus:
A Ronald Norva.
WITNESS JONARD
Q Can you point to him also?
Q Could you tell this Honorable Court what happened, Mr. Witness?
(Witness pointing to a man inside the Courtroom whom when asked his name, answered: Ronald
A When the four (4) entered after ten (10) minutes I heard like a commotion inside the house. Norva).

Q Then when you heard the commotion, Mr. Witness, what did you do? Q Then what happened, Ms. Witness, after you were able to recognize them?

A What I did was I went out of the store to peep thru the window near the lavatory. A I told that they were the ones.[36]
In like manner, appellant Eduardo's denial that he participated in the offense charged does not Q Who are these five (5), Mr. Witness?
outweigh the testimonies of the witnesses positively identifying him as one of the culprits, thus:
A Robert Uy, Ronald, Alice, Josie Herrera and Eduardo Chua.
WITNESS JONARD
Q And where did this happen, Mr. Witness?
Q Did you follow the instruction, Mr. Witness?
A When Josie Herrera tipped to the group on that December, the group made a surveillance to be
A Yes, ma'am. familiarized with the face of Mr. Mendoza and Mrs. Reyes.

Q Why did you follow the instruction? Q And all the time, Mr. Witness, where was (sic) this happened when you said they were planning?

A Because they are my Boss. A At the house of Robert Uy.

Q When you said they are my Boss, to whom, Mr. Witness, are you referring to? Q Did the surveillance took (sic) place, Mr. Witness?

A Ronald Norva, Robert Uy, Eduardo Chua, Alice Buenaflor and Josie Herrera. A Yes, ma'am.[37]

Q You mentioned the name of Josie Herrera, was she there at the vicinity? x xx

A She was not there when the incident happened on February 17, 1998 Q And where did you count the surveillance, Mr. Witness?

Q Why did you include the name of Josie Herrera as one of your bosses, Mr. Witness? A Ali Mall, at Cubao, Quezon City.

A Because, ma'am. On December 19, 1997 at the middle of that month, Josie Herrera tipped to the Q And what was the result of your surveillance, Mr. Witness?
group that Mr. Rafael Mendoza is a good victim because he has lots of money and engaged in a
A They saw the victims Mr. Mendoza and Mrs. Reyes. Robert Uy pointed to the two (2) as our victims.
lending business.
Q Aside from the planning and the surveillance, Mr. Witness, what else took place?
Q Were you there when she tipped the person of Mr. Mendoza?
A On January 3, 1998 the first stage of the kidnapping will took (sic) place on January 5, 1998
A Yes, ma'am.
because they want to make it quick.
Q Where was this, Mr. Witness?
Q Was (sic) the kidnapping take place at that time, Mr. Witness?
A At the house of Robert Uy.
A Yes, ma'am.
Q Where was the house of Mr. Robert Uy, Mr. Witness?
Q On January 5, 1998?
A Candido Homes Subdivision, West Fairview, Quezon City.
A No, ma'am, January 5, that was the first try to kidnap them when we went to Ali Mall but we were
Q That was on (sic) the middle of December, 1997? not able to see them.

A Yes, ma'am. Q You said that there was a first try, was there another try, Mr. Witness?

Q Mr. Witness, if this Josie Herrera whom you have referred as one of your Bosses is around this A Yes, ma'am.
courtroom, could you please point to her?
Q When was that, Mr. Witness?
(Witness pointing to a lady inside the Courtroom whom when asked her name, answered: Josie
A On February 5, 1998.
Herrera).
Q What happened? Was that agreed upon by the group, Mr. Witness?
Q You also mentioned the name of Eduardo Chua as one of your bosses, why do you say so that he
was one of your bosses? A Yes, ma'am.

A Because they were the ones planning how they could get Mr. Mendoza. Q Who were these people in the group, Mr. Witness?

Q And who were these people planning, Mr. Witness? A Alice Buenaflor, Robert Uy, Ronald Norva, Eduardo Chua and Josie Herrera.

A The five (5) of them, ma'am.

Q And did the kidnapping take place on the second try, Mr. Witness?

A We were not able to take them, ma'am.
Q Then what happened, Mr. Witness?
A On February 5, 1998, on our second try to kidnap them, we were not able to get them because in
Ali Mall the car of Alice Buenaflor was bumped by a taxi.
Q Was there another try after the February 5 try, Mr. Witness?
A On that February 5, when we were not able to take them; they changed the plan.
Q And who participated in the plan, Mr. Witness?
A Eduardo Chua, Robert Uy, Ronald, Alice Buenaflor and Josie Herrera.
Q Is she the same Josie Herrera whom you identified earlier, Mr. Witness?
A Yes, ma'am.
Q Then what happened, Witness?
A After the second try, we were not able to take them, so the plan was changed.
It is also bewildering to this Court why immediately after receiving the money he borrowed, he would
spend it in going to Davao with his daughter on 18 February 1988, without any previous plan
whatsoever and suspiciously, upon invitation of accused Uy who had known by then that one of the
victims, Mendoza, had died in the course of the kidnapping.
Truly, all of the foregoing facts when taken together with the testimonies of Mangelin and Montanir
unequivocally indicate accused Chua's complicity with the criminal design of accused Uy and dissolves
the said accused's plea of innocence.[40]
Each conspirator is responsible for everything done by his confederates which follows incidentally in
the execution of a common design as one of its probable and natural consequences even though it
was not intended as part of the original design.[41] Responsibility of a conspirator is not confined to
the accomplishment of a particular purpose of conspiracy but extends to collateral acts and offenses
incident to and growing out of the purpose intended.[42] Conspirators are held to have intended the
consequences of their acts and by purposely engaging in conspiracy which necessarily and directly
produces a prohibited result that they are in contemplation of law, charged with intending the
result.[43] Conspirators are necessarily liable for the acts of another conspirator even though such act
differs radically and substantively from that which they intended to commit.[44]

Q What was the plan that was changed? What was the new plan?
A They were the ones who knew it. They were the ones planning and I was only being utilized by the
syndicate.[38]
It must always be remembered that between positive and categorical testimony which has a ring of
truth to it on the one hand, and a bare denial on the other, the former generally prevails.[39]
It is also not disputed that the safe house in Ciudad Grande, Valenzuela, where the victims were
brought was owned by appellant Eduardo. The trial court was also correct in dismissing the claim of
appellant Eduardo that he merely lent his car to Robert and allowed the latter to occupy his house
because Robert had been so accommodating to him and had facilitated his loan, thus:
Regarding the criminal liability of accused Chua, while it is conceded that the said accused was
nowhere in the actual scene of the incident, this Court nonetheless finds the said accused guilty of
kidnapping as one of the conspirators to the commission of the felony who participated by furnishing
the vehicle used in abducting the victims and the house where they were held captive and where
Mendoza died.
Considering the above disquisitions, there is no doubt that conspiracy existed in the perpetration of
the crime. Thus, all of the appellants, having been proven that they each took part in the
accomplishment of the original design, are all equally liable for the crime of Kidnapping with
Homicide.
Lastly, this Court finds no error in the CA's modification of the penalty imposed by the trial court. The
penalty imposed by the trial court, which is Death is now reduced to reclusion perpetua in accordance
with Republic Act No. 9346.[45]
WHEREFORE, the Decision dated April 22, 2008 of the Court Appeals, affirming with modification the
Decision dated October 28, 2004 of the Regional Trial Court (RTC) of Valenzuela City, Branch 171 is
hereby AFFIRMED, with further MODIFICATION that all the appellants herein are equally found
GUILTY of the special complex crime of Kidnapping with Homicide.
SO ORDERED.

Again, this Court applied the time-honored principle that evidence to be believed must come from the
mouth of a credible witness which accused Chua is not. Indeed, this Court finds no iota of truth on the
protestation of accused Chua that he knew nothing of accused Uy's plans. It is simply too good to be
true that he allowed Mangelin and accused Montanir to stay at his house to guard it and attend to his
store while his caretakers were having a vacation. Neither could this Court find cogent reason why
accused Chua would allow accused Uy to use his vehicle and house totally oblivious of any
plan/design or purpose of accused Uy. Nor is it credible that accused Chua would allow accused Uy to
use his vehicle just to follow up his loan application and then after the same had been released he
(accused Chua) did not come home either to Santa Maria, Bulacan or to Ciudad Grande, instead, he
went straight to the residence of accused Uy, waited for him until the wee hours of the morning of the
following day, 18 February 1998, only to tell accused Uy he was going home.
G.R. No. L-7618 March 27, 1913
MARIANO UY CHACO SONS, plaintiff-appellant,
vs.
THE INSULAR COLLECTOR OF CUSTOMS, defendant-appellee
Hartford Beaumont, for appellant.
Office of the Solicitor-General Harvey, for appellee.
TRENT, J.:
This is an appeal by Mariano Uy Chaco Sons from a judgment of the Court of First Instance of Manila
confirming a decision of the Collector of Customs to the effect that white lead manufactured in a
bounded warehouse in the United States from pig lead imported from Spain without the payment of
duty is not entitled to free entry into the Philippine Islands.
This case was submitted upon the following agreed statement of facts:
That the white lead referred to in above-entitled proceedings was imported into the Philippine Islands
directly from the United States in one bottom without transshipment en route; that same was
produced in the United States from pig lead imported into the United States from Spain, and that no
duty was paid upon said pig lead upon its importation into United States, notwithstanding the fact
that the tariff law of the United States in force at the time of its importation imposed a tax thereon;
that same was put into a bonded warehouse upon its arrival in the Untied States, and was then
subjected to what is known as the "Dutch" of "Stack" process. This consist in putting the pig lead into
a building constructed for the purpose, in tiers or layers of the said lead pigs, spent tanbark, and
boards; in the layers of spent tanbark are certain earthenware pots containing acetic and other acids;
the acids in a short time corrode the metallic lead through and through, causing it to turn white in
color; the white lead was then ground and mixed with linseed oil, and in this condition imported into
the Philippine Islands; no duty was paid upon any of the foreign material imported into the United
States, and which was used in the production of the white lead as imported into the Philippine
Islands.
The duty prescribed by the United States Tariff Law of 1909 was not applied to the pig lead in
question because the importers took advantage of the provisions of section 23 (quoted post) of the
said law. This section permits of the importation of foreign materials for the manufacture of articles in
the United States without the payment of duty, provided the finished article is exported directly to
foreign countries or to the Philippine Islands, such manufacturing process being made under strict
supervision of the Secretary of the Treasury, to whom an account must be rendered of the disposition
of all such foreign material. The white lead which is the subject of this controversy was manufactured
under these conditions, and the pig lead entering into its composition thereby escaped the imposition
of the duty prescribed for that article by paragraph 182 of the United States Tariff Law. It is now to be
decided whether the manufactured article is to be admitted into Philippine Islands free of duty under
the above facts.
Section 5 of the United States Tariff Law, which was first relied upon by the appellant to show that
the shipment in question should be admitted free of duty, reads in part as follows:
That in consideration of the exemption aforesaid, all articles, the growth, product, or manufacture of
the United States, upon which no drawback of customs duties has been allowed therein, shall be
admitted to the Philippine Islands from the United States free of duty.
The appellant now relies also upon section 12 of the Philippine Tariff Law of 1909, which reads in part
as follows:
That all articles, except rice, the growth, product, or manufacture of the United States and its
possessions to which the customs tariff in force in the United States is applied and upon which no
drawback of custom duties had been allowed therein, going into the Philippine Islands shall hereafter
be admitted therein free of customs duty when the same are shipped directly from the country of
origin to the country of destination.
It is now claimed by the appellant that both these provisions of law are consistent and harmonious,
and by the appellee that they are inconsistent and that section 12 must prevail because the Philippine
Tariff Law of which it is a part was passed subsequent to the United States Tariff Law.
It is a well-recognized rule of construction that a statute repeals prior enactments in so far as the
same are inconsistent and irreconcilable with it. That is, if by no construction can the provisions of
both stand together, the later Act must prevail as expressing the latest will of the Legislature. Both
Acts were approved on August 5, 1909, the United States Tariff Law at 5:05 p.m., to take effect the
following day; and the Philippine Tariff Law at 5:08 p.m., to take effect after sixty days. The Philippine
tariff was therefore subsequent both as the time of passage and the time of taking effect. This Act
further contains a repealing clause (sec. 27) reading in part as follows:
That all existing decrees, laws, regulations, orders, or parts thereof, inconsistent with the provisions
of this Act, are hereby repealed . . . .
If there be as a matter of fact any repugnancy between the provisions of section 5 of the one and of
section 12 of the other, the latter must unquestionably prevail. If, as is contended by the appellant,
the two sections are not only harmonious and consistent, but section 12 (so far as the issues of this
case are concerned) is practically a reenactment of section 5, the authority for our decision must
nevertheless be found in section 12, as this case has arisen since the latter took effect. Upon either
argument section 12 is the current law on the subject.
It is urged by the applicant that the clause "to which the customs tariff in force in the United States is
applied" (this clause will hereafter be referred to as the "to which" clause) in section 12 qualifies the
word "possessions" and restricts the meaning of that word to those possessions of the United States
where the United States Tariff Law is operative. On the other hand, it is contended by the appellee
that the clause "to which the customs tariff in force in the United States is applied and upon which no
drawback of customs duties has been allowed therein" limits the word "articles." It will be noted that
this construction includes the "to which" clause relied upon by the appellant. In other words, the
question is as whether the "to which" clause limits the word "possessions" or the word "articles."
On first impression, the grammatical construction appears to require that the "to which " clause must
modify "articles," since it is apparently joined to the "upon which" clause by the conjunction "and,"
and it is conceded that the latter clause must necessarily modify "articles." But after a careful
examination of the meaning the section would have upon this construction we are convinced that it
cannot possibly be correct. We are led to this conclusion by two reasons. First, because the section as
it would then stand would prevent the admission into the Philippine Islands free of duty of those
articles of American growth, product, or manufacture of purely domestic origin. For it must be
considered that this construction of the section imposes two conditions upon an article which would
enter the Philippine Islands free of duty: (1) It must be an article of American growth, product, or
manufacture "to which the customs tariff in force in the United States is applied;" and (2) "upon
which no drawback of customs duties has been allowed." The tariff in force in the United States is not
applied to any article of purely domestic origin. And in the preamble of the Philippine Tariff Law it is
provided that all goods entering the Philippine Islands must pay duty except as otherwise specifically
provided. As American articles of purely domestic origin would fail to comply with the first condition, it
would be unnecessary to consider whether they could comply with the second. It is hardly necessary
to say that this result was not contemplated by Congree, and that this customs tariff has now been in
force for a matter of year, during which time no attempt has ever been made to levy tribute upon
articles, wholly of American growth, product, or manufacture. It appears that by the merest chance,
the inadvertent insertion of the word "and" permits of a construction, perhaps grammatically correct,
whereby a clause which the draftsman intended should modify some other word appears to modify
"articles," a possibility not contemplated when the section was prepared. The result such a
construction would entail as shown above is the most convincing evidence that such a construction
did not occur to the author of the section or to any member of the Legislature.
For the purpose of illustrating some further remarks, we quote the pertinent portion of section 12,
italicizing the words which are not found in the similar clause of section 5:
That all articles, except rice, the growth, product, or manufacture of the United States and its
possessions to which the customs tariff in force in the United States is applied and upon which no
drawback of customs duties has been allowed therein . . . .
Clearly, by the addition of the words "and its possessions" it was desired to further extend the
privilege of free entry into Philippine Islands of American articles by including not only what might be
called the United States proper, but something additional. So the words "and its possessions" were
added to avoid any doubt that it was the intention of Congress that not only articles from the
mainland should be permitted to enter the Philippine Islands free, but also articles from other
territories within the jurisdiction of the United States. But had Congress stopped there (as they who
favor the construction which we have disapproved would have had it do), the term would still be too
indefinite to say exactly what was meant. "The United States and its possessions" is itself a
comprehensive term. The necessity of defining exactly what was meant by this expression in a tariff
act, where the greatest precision is necessary, undoubtedly appealed to the framers of this clause.
Unrestricted, the phrase "the United States and its possessions" would include the Philippine Islands
themselves, as well as the Islands of Guam and Tutuila, which were meant to be excluded. But if we
allow the "to which" clause to modify "possessions" all ambiguity immediately disappears. We are
then told that articles of American origin coming from the mainland or from any territory under the
jurisdiction of the United States, to which the tariff in force in the United States is applied, are to be
admitted free, provided only there is not drawback of customs duties. We have only to turn to the
United States Tariff Law of 1909, which is the customs tariff in force in the United States, to ascertain
what possessions of the United States are referred to in section 12. The preamble of that Act provides
that it (the Act) shall apply to the United States and all of its possessions except the Philippine Islands
and the Islands of Guam and Tutuila. Used in this way, the "to which" clause performs not only a
useful but a necessary function in order to clear up the uncertainty as to what is meant by the term
"United States and its possessions." What more appropriate way could be devised in which to define
exactly how much of the territory was to be included in the term for the purposes of section 12?
Again, it will be noted that the words "is applied" are used in the "to which" clause, while in the "upon
which" clause the verb is "has been allowed." Now, while we are ready to concede that the United
States Tariff is applied to every article of American growth, product, or manufacture containing
foreign material, in the sense that the tariff was applied to the foreign material contained in such
article upon its importation into the country, we cannot assent to the statement that the tariff is
applied to the finished article which seeks entrance into the Philippine Islands; the tariff spends its
force when the foreign material contained in the finished article enters the country as raw material,
and has nothing further to do with it. Certainly, if the two clauses should be read together and modify
"articles," it would be a more logical arrangement and tend to greater purity of diction to have verb in
the "to which" clause in the past tense also. In point of time, the application of the tariff to the article
occurs before a drawback of duties, and there is therefore more reason to place the verb of the "to
which" clause in the past than there is for expressing the action of the "upon which" clause in the
past.
By adopting the second construction, we remove the unseemly absurdity of the first, which would
force articles of strictly American origin to pay duty upon entering the Philippine Islands. The most
ardent advocate of the first construction would scarcely insist that such is the literal meaning of the
section if that construction be given it. These considerations lead us to reject the proposition that the
"to which" clause modifies "articles" and to hold that it modifies "possessions." If it be asked what
disposition is to be made of the copulative "and," we answer that it may be disregarded as
surplusage, or it may held that there is an ellipsis of the words "which are" preceding "the growth,
product, or manufacture of the United States and its possessions." In the latter case, a relative clause
is provided and allows the conjunction "and" to perform the function of uniting it to the "upon which"
clause. We are of the opinion that the most that can be said against the construction of the section
which we have adopted is that a more appropriate setting might have found for the object sought to
be attained.
The real difficulty of this case now presents itself. The section as we think it should be read has
exactly the same meaning, with a slight enlargement of the territory from which articles, except rice,
may be shipped to the Philippines for free entry, as section 5. That is, it admits articles of American
growth, product, or manufacture upon which no drawback of customs duties has been allowed.
American articles wholly of domestic origin cannot possibly labor under the disqualification of a
drawback of United States customs duties, as none are ever assessed. American articles made wholly
or in part of foreign materials — which foreign materials enter the United States without the payment
of duty by reason of their being on the free list — may enter the Philippines free of duty for the same
reason. And American articles made wholly or in part of foreign materials, which foreign materials
paid the regular duty upon entering the United States, may also enter the Philippines free, provided
they can show that no drawback of the duty collected has been allowed. But the shipment of white
lead, which is the subject of this controversy, although in one sense an article of American
manufacture, is not comprehended within any of these three classes. Nevertheless, it has been
argued that under the construction of the section we have adopted, it must be admitted free into
Philippine Islands because it is not laboring under a drawback of United States customs duties. We
admit the force of this argument without subscribing to it. This white lead belongs to that class of
articles manufactured within the territorial limits of the United States Tariff Law. That article reads as
follows:
SEC. 23. That all articles manufactured in whole or in part of imported materials, or of materials
subject to internal-revenue tax, and intended for exportation without being charged with duty, and
without having an internal-revenue stamp affixed thereto, shall, under such regulations as the
Secretary of the Treasury may prescribe, in order to be so manufactured and exported, be made and
manufactured in bonded warehouses similar to those known and designated in Treasury Regulations
as bonded warehouses, class six: Provided, That the manufacturer of such articles shall first give
satisfactory bonds for the faithful observance of all the provisions of law and of such regulations as
shall be prescribed by the Secretary of the Treasury: Provided further, That the manufacture of
distilled spirits from grain, starch, molasses or sugar, including all dilutions or mixtures of them or
either of them, shall not be permitted in such manufacturing warehouses.
Whenever goods manufactured in any bonded warehouse established under the provisions of the
preceding paragraph shall be exported directly therefrom or shall be duly laden for transportation and
immediate exportation under the supervision of the proper officer who shall be duty designated for
that purpose, such goods shall be exempt from duty and from the requirements relating to revenue
stamps.
Any materials used in the manufacture of such goods, and any packages, coverings, vessels, brands,
and labels used in putting up the same may, under the regulations of the Secretary of the Treasury,
be conveyed without the payment of revenue tax or duty into any bonded manufacturing warehouse,
and imported goods may, under the aforesaid regulations, be transferred without the exaction of duty
from any bonded warehouse into any bonded manufacturing warehouse; but this privilege shall not
be held to apply to implements, machinery, or apparatus to be used in the construction or repair of
any bonded manufacturing warehouse or for the prosecution of the business carried on therein.
No articles or materials received into such bonded manufacturing warehouse shall be withdrawn or
removed therefrom except for direct shipment and exportation or for transportation and immediate
exportation in bond to foreign countries or to the Philippine Islands under the supervision of the
officer duly designated therefor by the collector of the port, who shall certify to such shipment and
exportation, or ladening for transportation, as the case may be, describing the articles by their mark
or otherwise, the quantity, the date of exportation, and the name of the vessel: Provided, That the
waste material or by-products incident to the processes of manufacture in said bonded warehouses
may be drawn for domestic consumption on the payment of duty equal to the duty which would be
assessed and collected, by law, if such waste or by-products were imported from a foreign country.
All labor reformed and services rendered under these provisions shall be under the supervision of a
duly designated officer of the customs and at the expense of the manufacturer.
A careful account shall be kept by the collector of all merchandise delivered by him to any bonded
manufacturing warehouse, and a sworn monthly return, verified by the customs officer in charge,
shall be made by the manufacturers containing a detailed statement of all imported merchandise used
by him in the manufacture of exported articles.
Before commencing business the proprietor of any manufacturing warehouse shall with the Secretary
of the Treasury a list of all the articles intended to be manufactured in such warehouse, and state the
formula of manufacture and the names and quantities of the ingredients to be used therein.
Article manufactured under these provisions may be withdrawn under such regulations as the
Secretary of the Treasury may prescribe for transportation and delivery into any bonded warehouse at
an exterior port for the sole purpose of immediate export therefrom.
The provisions of Revised Statutes thirty-four hundred and thirty-three shall, so far as may be
practicable, apply to any bonded manufacturing warehouse established under this Act and to the
merchandise conveyed therein.
It will be noted that the most stringent precautions are required to be taken to prevent the possibility
of articles imported under the provisions of this section being disposed of in the home market. One of
the obvious advantages of the section is that it allows the American manufacturer to compete with
the manufacturer of any other nation in the markets of the world, without allowing him to injure the
business of those who manufacture for domestic consumption. Yet, the result, if we accede to the
proposition that articles so manufactured are admitted free into the Philippines under section 12, is
not only to afford these bonded manufacturing warehousemen a better market in the Philippine
Islands than is allowed to foreign manufacturers, but to give them a preference in that market over
those American industries which manufacture the same article of materials have paid duty. And this
advantage over legitimate manufacturers may be greater than might at first be supposed.
That it is not possible for a manufacturer to dedicate his factory to the business of manufacturing
articles in bond and at the same time produce the same article in the same plant for home
consumption is made apparent from the conditions of section 23. And we would hesitate to say that
there are no American manufacturers except those engaged in the bonded manufacturing business
who are interested in the Philippine Islands as a market for their wares. It is clear that under the
proposed exemption from Philippine customs duties of articles manufactured in bond, those American
manufacturers who are not conducting their business under bond are placed at a distinct
disadvantage in competing with their bonded brothers in the Philippine market. If the manufactured
article (white lead in this case) produced under bond in the United States is to be allowed free entry
into the Philippines, it is subject to no duty at all. The only intermediate expense between the mines
in Spain and the market in the Philippines is the manufacturing process. This, we may assume, is
equal to the cost of the same process in a factory not bonded. Yet the latter must pay the duty
required by the American tariff on the raw material in addition to the expense entitled by the
manufacturing process before he can offer the manufactured article for sale in the Philippine market.
We ask, Why this discrimination at the expense of legitimate American industries, which should have
the first opportunity in the home markets?
An examination of the reciprocal free trade arrangement between the United States and the Philippine
Islands as provided in the United States Tariff Law amy throw further light upon the object of
Congress in perfecting it. By section 5 of its own customs tariff, the United States remits the duty
upon certain articles coming from the Philippine Islands. In the same section, and "in consideration"
for the exemptions provided, it is set forth that all articles of American growth, product, or
manufacture upon which no drawback of customs duties has been allowed in the United States shall
be admitted to the Philippines free of duty. These articles entering the United States free from the
Philippines may and doubtless do effect, to some extent, the home producer. He is required to meet
in equal competition articles over which, before the passage of that Act, he had a distinct advantage.
But a balsam was afforded him for this hurt by giving him greater market for his own goods. Did the
bonded manufacturer object when it was proposed to allow Philippine goods to enter the United
States free? And was the "in consideration" proviso tacked on to the concessions made to Philippine
goods for his benefit? Decidedly not. It was immaterial to him if the United States was flooded with
Philippine goods under the exempting clause. Such an event would not affect his business in the least.
Yet he would go still further, and claim an advantage over him who carries the burden. We cannot
believe that it was the intention of Congress to so discriminate in his favor.
But counsel for appellant says:
The appeal to the principle of protection as a guide to construction is proper, but it must not be
forgotten that protection is supposed to be for the benefit of labor. The system of manufacture in
bond is a system which is consistent with the protective principle in this, that it gives extra work to
labor. Under this law raw material may be imported free and after benefiting from a liberal application
of American labor, be exported again. In the present case the American policy would seem best
subserved by the liberal application of American labor to imported lead which was afterwards re-
exported. If the American workman is to get the full value of his work it would also seem good policy
to give for the product of his pure labor a free market in the Philippines. It is certainly arguable that
Congress was sufficiently solicitous for the welfare of the American workman to enact this policy into
law, and that they have actually done so. No one supposes Congress intended to foster the non-
existent "infant industry" of white lead manufacture in the Philippine Islands.
While the bonded manufacturing business is without doubt a benefit to American workmen and does
not derogate the principle of protection, this business cannot be said to render any active assistance
to that principle. It is a neutral element, which neither strengthens nor weakens the principle
appealed to. While it has a tendency to increase the number of manufacturing establishments, and
thus creates a demands for additional labor, it has no effect whatever upon domestic consumption,
which requires just as many factories and just as many workmen as though the bonded
manufacturing business did not exist. In any event, its effect upon American labor must be the same
as its effect upon American manufacturers. If articles manufactured under bond be given preference
in the Philippine market, they will, as has been shown, have an advantage over legitimate home
industries in that market. The output of such industries will consequently not be so large, and as a
result less work will be afforded the workmen in such industries. If this be protection, it is
synonymous with discrimination; but that discrimination protects cannot be admitted. It is doubtful if
the bonded manufacturing business logically comes within the purview of a protective tariff. At least,
that section 23, which gives it being, could as well be a part of the internal-revenue law of the United
States as a part of its customs tariff is certain, since section provides equally for a remission of the
internal revenue tax or of the customs duty, as the case may be. It finds no place in the Philippine
Tariff Law, which is as avowedly and completely protective as the United States Tariff Law. Yet the
privilege of conducting such a business is not wanting in the Philippine Islands; it is granted by Act
No. 1782 of the Philippine Legislature.
When we examine the registration placed upon the free entry of American merchandise into the
Philippine Islands, i.e., that there shall be no drawback of customs duties thereon, we find further
indication of the view Congress took upon this question. A drawback of customs duty presupposes a
collection of customs duty, and a customs duty can only be collected upon imports. If it was
considered undesirable to allow goods which had paid the regular duty but which had later accepted a
drawback to enter the Philippines under the free trade arrangement, would it be consistent with that
ruling to allow goods which had paid no duty at all to so enter? By section 25 of the United States
Tariff Law, articles manufactured in the United States containing foreign material are entitled to a
drawback of all the customs duty paid upon such foreign materials, less 1 per cent, upon the
exportation of the finished article. That this is the drawback which is placed under the ban by section
12 can hardly be questioned. Congress decided that when such articles had accepted the drawback to
which they were entitled under section 25 of the United States Tariff Law, they should not be entitled
to free entry into the Philippines. If it would be against the will of Congress to admit articles into the
Philippines which had accepted a 99 per cent drawback of customs duty, is it reasonable to suppose
that body nevertheless intended to admit into the same territory the same articles which had paid no
duty at all? Articles which in one sense were suffering a 100 per cent drawback of duty? While strictly
speaking, it is perhaps incorrect to say that articles manufactured under bond receive a drawback of
customs duties because the tariff is, as a matter of fact, never applied, the actual result is the same
as though it had been applied. Indeed, the definitions which we have been able to find of this word as
applied to customs duties would seem to indicate that it includes those articles manufactured under
bond. In United States vs. Passavant (169 U.S., 16; 42 L. ed., 646) the court said:
A drawback is a device resorted to for enabling a commodity affected by taxes to be exported and
sold in the foreign markets upon the same terms as if it had not been taxed at all.
The difference, at best, is highly technical, and there is no substance to it. If articles of American
manufacture which still have to their credit 1 per cent customs duties upon the foreign material
contained therein are to be denied free entry into the Philippine Islands, there can be no justification
for construing section 12 so as to allow articles which have paid anything less than 1 per cent that
privilege
Again, section 5 provides that the internal-revenue taxes ordinarily collected in the United States are
not to be collected when the articles upon which they are applicable are shipped to the Philippine
Islands, but that such articles shall be subject to the internal-revenue law of that country. As to
merchadise of purely American origin, then, Congress places the manufacturer who is not bonded
upon same plane with him who is bonded. As to both, the obligations imposed by the internal-revenue
law are discharged by the shipment of the merchandise to the Philippine Islands. Yet it is urged that
as to customs duties the bonded manufacturer is exempt, while the manufacturer not under bond is
required to pay them.
Section 5 also provides that Philippine goods entitled to free entry into the United States shall be
exempt from internal-revenue taxes in that country, but shall be subject to the internal-revenue taxes
of the United States. By the remission of the internal-revenue taxes in the country of origin and the
prohibition against articles laboring under a drawback of customs duties, both countries are thrown
open to the producers of each to the extent that free trade is allowed. Obviously, if an article were
subject to the payment of internal-revenue tax in the country of origin as well as in the country of
destination, it would be handicapped in obtaining a market; and by accepting a drawback of customs
duties it would have an advantage over the same article produced in the country of destination. The
whole intention of Congress as reflected in the various provisions of this section was to give an article
allowed free entry from the Philippines into United States, or vise versa, an equal opportunity — not
an unequal opportunity either to its advantage or disadvantage — with articles produced locally, so
far as the general revenue laws of the country in which it was sold were concerned.
But there is another side to this question which addresses itself to us with peculiar earnestness. The
Philippines were provided by Congress with a separate revenue tariff. The political relations of the
United States and the Philippine Islands alone would have made it impossible for both countries to
operate under the same tariff. No doubt considerations arising from the different requirements of the
two countries would have also made it inconvenient if not impracticable to confer the same tariff upon
both. This may be inferred from the difference in the free lists of the two tariffs. But one of the chief
objects of both the United States Tariff Law and the Philippine Tariff Law was to raise revenue for the
support of the respective governments. Inducements of mutual advantage were sufficient to
overcome this object as to articles of home production. But where these inducements were wanting,
for what purpose should the avowed object of either tariff be defeated? A distinct loss in revenues
would concur to the Philippine Government were articles manufactured in bond to be admitted free of
duty. How great this loss would be we can only conjecture. But theoretically, at least, it would throw
the Islands open to the producers of the whole world. Every article imported into the Philippines and
from which revenue is obtained for the support of our Government could escape the payment of this
revenue by simply being subjected to a manufacturing process under bond in the United States. Not
only would this pro tanto deprive the Philippine Government of its revenues make its revenue tariff a
"vain and useless thing," but in exact proportion to the magnitude of such a movement it would
deprive the United States of a preferential market in the Philippines, which was the "consideration" for
the exemption from duty coming into the United States of certain Philippine products.
We are urged that where an ambiguity arises in a revenue law, all doubt must be resolved in favor of
the taxpayer. But does not this mean an ambiguity of grammar merely, or does it mean an ambiguity
as to what the intention of the lawmakers was? The clearest language may be pervented from its
original meaning of the metaphysical reasoning. As is said by Chief Justice Marshall, "the intent of the
legislature is the law." This is not a case of doubt as to the intention of the legislature. No particular
effort has been made in the present case to demonstrate that it was the intention of Congress to
admit such articles as this shipment of white lead into the Philippine Islands under the provisions of
section 12. In fact, we find in the record the statement by a representative of the appellant company:
"It may be that Congress intended that articles manufactured from foreign raw materials of the
United States upon which no duty was paid should pay duty in the Philippine Islands, but the law does
not state."
There is ample authority for excluding from the operation of general language cases which are
inconsistent with the legislature purpose. The Act of February 26, 1885, prohibited the "importation
and migration of foreigners and aliens under contract or agreement to perform labor in the United
States." The Supreme Court of the United States, while admitting that the general language used
would prohibit the immigration of a minister of a religious denomination under contract to exercise his
calling, held, in Trinity Church vs. United States (143 U.S., 457), that this was a case not within the
meaning of the Act and that the Act did not, therefore, extend to it. But the principle invoked in that
decision of the United States Supreme Court is too well-recognized to require discussion, and the
review of authorities therein presented is comprehensive. In the case of Jones vs. Guaranty, etc., Co.,
(101 U.S., 622, 626; 25 L. ed., 1030, 1034) the principles is sententiously stated as follows:
A thing may be within a statute but not within its letter, or within the letter and yet not within the
statute. The intent of the lawmaker is the law.
In the present case, Congress was considering the vast bulk of American merchandise when it
enacted section 5 of the United States Tariff Law and section 12 of the Philippine Tariff Law. It was
not intended that such language should be so construed as to make for discrimination between
American manufacturers and to provide an avenue of ingress into the Philippines of every article
dutiable under the schedules of the Philippine Tariff Law without the payment of duty. We are of the
opinion that nothing short of a specific provision in the said tariff law would justify a court in holding
that articles manufactured under bond in the United States should be admitted into the Philippines
free of duty.
But it may be said that the white lead which is the subject of this controversy is not open to the
objection of diminishing the revenues of the Philippine Islands because the raw material contained in
the manufactured article would not have been subject to duty in the Philippines had it come direct
from Spain. While this is true, it is still open to the objection that it would discriminate between
American manufacturers. Nor is it any the less true that no distinction can be made between bonded
manufactured articles, the raw material of which might enter the Philippine Islands under free list,
and such articles, the raw material of which is subject to duty. If one such article be admitted, all
must be admitted. The pig lead contained in the manufactured article lost its identity upon being
subjected to the manufacturing process in the United States, and also its right to free entry into the
Philippine Islands. The tariff deals not with any past condition or form of an article, but its condition it
be argued that any other manufactured article containing material which, in the raw, is on the free
list, is entitled to free entry into the Philippine Islands.
Judgment affirmed, without costs. So ordered.
Arellano, C.J., Torres, and Moreland, JJ., concur.
G.R. No. 16805 September 16, 1921
THE UNITED STATES, plaintiff-appellee,
vs.
CALIXTO D. BERBARI, defendant-appellant.
Juan Sumulong, Francisco A. Delgado and J. E. Blanco for appellant.
Acting Attorney-General Tuason for appellee.
STREET, J.:
The appellant, Calixto D. Berbari, a native of Syria and Turkish subject resident in the Philippine
Islands, was convicted in the Court of First Instance of Manila of the offense of estafa and was there
sentenced to undergo imprisonment for one year, eight months and twenty-one days, presidio
correccional, with corresponding accessories, to indemnify the complaining witness, Alfredo Chicote,
in the sum of P18,750, with the appropriate subsidiary imprisonment in case of insolvency, and to pay
the costs.
It appears in evidence that, prior to January of the year 1919, the accused, Calixto D. Berbari, and
the complaining witness, Alfredo Chicote, had been associated together in more than one profitable
commercial enterprise, among which may be mentioned the Oil Manufacturing Corporation, the
Tayabas Land Company, and the "Compañia de Aceites de Manila;" and apparently in view of the
success that had attended these ventures, they decided in the latter part of the year 1918 to establish
a plant for the production of coconut oil in the city of Lucena, Tayabas, to be conducted under the
management of Berbari. One of the motives that led Chicote to embark on this project was the fact
that he had an ice factory in Lucena, which it was thought could be profitably converted into a factory
for the production of coconut oil.
In order successfully to promote the establishment of this enterprise, it was found necessary to enlist
the cooperation of persons of means in the vicinity of Lucena; and accordingly after a few trips to that
city, Berbari succeeded in laying the foundation for the organization of a company to be known as the
Tayabas Oil Company, Inc. Among the individuals committed to the organization of said company,
who were residents either of Lucena or the neighboring city of Sariaya, we note the names of
Gregorio Marquez, Filemon Perez, Florencio Changco, Moises Gala, Daniel Marquez, Julian Gala,
Maximo Rodriguez, Cayo Alzona, and Federico Unson. As Berbari was the chief promoter of the
company and as it was understood that he would be manager, he subscribed, with the consent of
Chicote, for 1,500 shares of the company of the par value of P150,000, all in his own name, with the
understanding that the subscription was equally in the interest of both.
It further appears that Berbari, apart from the interest which he claims to have in the profit of the
enterprises previously promoted by himself and Chicote, commands no independent resources; and
inasmuch as Chicote at the time now under consideration had in his own hands or under his own
control practically all of the remaining assets and profits pertaining to Berbari in said enterprises, it
resulted that the money which Chicote and Berbari intended to use in the purchase of the 1,500
shares of the Tayabas Oil Company, Inc., necessarily had to come from the hands of Chicote; and so
it was understood and agreed between them. Indeed, according to Berbari, Chicote had expressly
promised to turn over to him the exact sum of P150,000, to be used in the new enterprise, which sum
represented the profits which had been gained by them in the purchase and sale of certain lands and
machinery in the district of Pandacan, Manila.
When the time approached for the first payment upon the subscription to the capital stock of the
Tayabas Oil Company, Inc., Chicote delivered to Berbari a check upon the Bank of the Philippine
Islands in the sum of P37,500, this being 25 per cent of the amount that would be due upon the
subscription to the 1,500 shares taken in the name of Berbari. Contemporaneously with the delivery
of this check, Berbari signed and delivered to Chicote a receipt (Exhibit E) conceived in the following
terms:
Received of D. Alfredo Chicote the sum of thirty-seven thousand five hundred pesos (P37,500) with
which to pay the first installment of my subscription for stocks of the Tayabas Oil Co., Inc., that is,
the 25% of the sum of P150,000 subscribed for by me. Said subscription shall be in the following
proportion: 50% shall be for D. Alfredo Chicote and the other 50% shall be for Calixto Berbari. But all
the shares shall be in my name.
Manila, December 7, 1918.
(Sgd.) CALIXTO BERBARI.
A few weeks later, to wit, on January 3, 1919, on the eve of the rupture of friendly relations that
presently occurred, a document, prepared by Chicote for the purpose of further elucidating the
arrangement between them, was signed by both parties, as follows:
Be it known by these presents that we, Alfredo Chicote and Calixto Berbari, both being of age and
residents of Manila, by this document, declare, execute and make known:
1. That Mr. Calixto Berbari subscribed, by common consent, to the "Tayabas Oil Co., Inc.," an
incorporated association for the manufacture of coconut oil in Lucena, Tayabas, for the sum of one
hundred fifty thousand pesos (P150,000).
2. Said subscription is for both Chicote and Berbari in equal shares, that is, P75,5000, seventy-
five thousand pesos for Mr. Chicote and the other seventy-five thousand pesos for Mr. Berbari.
3. For the better running and management of the business, it was agreed that the shares
should be in the name of Mr. Calixto Berbari.
4. In case the board of directors of said corporation should make a call upon the unpaid
subscription on the one hundred and fifty thousand pesos (P150,000) then Mr. Chicote shall pay what
corresponds to him of his share only of seventy-five thousand pesos and Mr. Berbari shall also pay
what corresponds to him of his part of seventy-five thousand pesos (P75,000).
The check above-mentioned appears to have been delivered to Berbari after banking hours on
Saturday, December 7, 1918; and on the Monday following he deposited the same to his own credit in
the same bank, intending to use the money for the proposed payment on the capital stock of the
Tayabas Oil Company. Owing, however, to some legal technicalities in the organization of the
company, payment could not be immediately made; and in a meeting of the board of directors of the
company, which occurred in Lucena on December 18, it was agreed that certain shareholders, among
whom was Berbari, should pay into the treasury of the company 25 per centum of their subscription
within the period of fifteen days thereafter, that is, on or before January 2, 1919. Immediately after
the adoption of this resolution, Berbari informed Julian Gala, the treasurer of the company, that he
was then prepared to pay the sum of P37,500, due from himself, and offered to deliver to the
treasurer a check upon a bank in Manila for that amount. Gala replied that, having refused to receive
checks from others, he could not accept Berbari's check, and that the latter would have to bring the
money himself from Manila to Lucena in paper bills of large denomination. Berbari was therefore
compelled to make provision to this end; and upon his return to Manila he withdrew the deposit of
P37,500 from the Bank of the Philippine Islands and placed it in safe his office in order to have it
immediately at his disposal. On December 23, 1918, a meeting of the board of directors of the
Tayabas Oil Company was held at Lucena, which was attended by Berbari. On this occasion, however,
he did not take the money along and at the meeting contended himself with informing his associates
as to certain measures taken by him in furtherance of the plans for the company. After returning to
Manila from this trip to Lucena, he had a conference with Chicote, on December 26, and informed the
latter that he had the money in his hands, and observed upon the great difficulty of obtaining money
in large bills. Chicote thereupon said that such the same day Berbari took the money to the Philippine
Treasury and caused it to be there changed into bills of the denomination of P500, for the more
convenient transportation of the same to Lucena. At this time Berbari contemplated returning to
Lucena on January 1, 1919, in order to be present at the meeting of the board which was to be held
on the next day.
Chicote says that for sometime after the delivery by him of the check for P37,500 to Berbari, he
supposed that the latter had made immediate payment of said amount to the Tayabas Oil Company,
and he claims that Berbari had on one or more occasions during the month of December intimated to
him that payment had in fact been made when such was not the case. Upon the evidence before us it
is doubtful whether any such false impression was made, or intended to be made, by Berbari on the
mind of Chicote; but if in this respect there was any lack of candor on the part of Berbari, it was
probably due to an uneasiness in his mind as to the situation between him and Chicote, which is
readily understandable in the light of subsequent developments.
As already stated, Berbari and Chicote had been associated together in more than one venture before
the project of the Tayabas Oil Company was undertaken, and there is a dispute between the two as to
the extent of their respective interests in those previous adventures. Upon this point it is not
necessary here to state any settled conclusion, more especially in view of the fact that the trial judge
excluded important evidence directed precisely to this point. It is, however, necessary to define
clearly the respective contentions of the two parties. Berbari says that they were joint adventurers
throughout, and that both were equally entitled to share in the profits. Chicote on the other hand
declares that apart from the ownership of certain shares which Berbari admittedly held in one or more
of the corporate enterprises already alluded to, Berbari had no defined interest, and especially that he
had no interest in the profits of the deal in the Pandacan land and machinery, except such as the
generosity of Chicote might bestow.
In this connection it is well to state that for some time prior to the transaction which gave rise to this
prosecution Chicote and Berbari occupied towards each other not only a relation of business intimacy
but also a confidential relation like that between attorney and client; and Berbari asserts that Chicote
prevailed upon him in April, 1918, to transfer to Chicote, upon a simulated consideration, 280 shares
in the corporation "Compañia de Aceites de Manila," for the purpose of hiding the ownership of said
shares in case the Government of the United States should take steps to sequester the property of
Turkish subjects as had been done in the case of the subjects of other enemy powers. The transfer in
question was, in fact, made, but Chicote denies that the consideration was simulated and that the
purpose of the transaction was to hide Berbari's property from the alien property custodian.
Whatever the truth may be upon this and other points of contention between the two, there can be no
dispute that with reference to the protection of his interests, — supposing the same to be such as he
claims — was sufficiently delicate and dangerous.
Accordingly in the latter autumn of 1918, after the Ottoman power had been crushed by the Allies and
the Armistice had been concluded, Berbari began to exhibit signs of restiveness, and he more than
once asked Chicote to liquidate the accounts of their previous transactions and in particular to pay the
value of Berbari's shares in the "Compañia de Aceites de Manila." These insistencies of Berbari were
met by evasions and procrastinations, and it was precisely in the latter half of December, 1918, that
Berbari apparently began to sense danger in his relations with Chicote. For this reason he determined,
if possible, to get Chicote to liquidate their accounts before he himself should finally go to Lucena on
January 1, 1919, where he expected to take charge of the affairs of the Tayabas Oil Company, Inc.,
as manager.
As Berbari is now the man at the bar, it is but fair to him to give his account of the efforts made by
him at this time to get Chicote to account for the shares which Berbari claims to have placed in
Chicote's name on the books of the "Compania de Aceites de Manila" as well as for the profits gained
in the deal in the Pandacan property and machinery, which deal had been effected by means of a
credit for P200.000 obtained at the Bank of the Philippine Islands the assistance of the corporation of
the Dominican Fathers.
At the interview between Chicote and Berbari which occurred on December 26, 1918, the former,
instead of rendering an account along the lines insisted upon by Berbari, presented to the latter
certain partial written statements (Exhibits 17, 18, 19, and 20), relating to business matters between
them, and promised that not later than December 31, he would finish the intended liquidation and
deliver the same to Berbari. But on that date the promised statement was not forthcoming; and
Chicote suggested that he would send it later to Berbari in Lucena by mail. To this Berbari strenuously
objected, insisting upon a settlement before leaving for Tayabas, and in view of this insistence a
telegram was sent to Lucena, requesting a postponement of the corporate meeting until January 6,
1919, which was arranged.
On the morning of January 2, 1919, Berbari again sought but Chicote at the latter's home, and was
there told that the statement of the accounts between them was already finished in he rough, and
ready to be put into final form. Berbari asked to be shown the rough draft, which Chicote then held in
his hands, but the latter refused to exhibit it to Berbari. The two then went to Chicote's office for the
purpose of having the papers put in final form; and Berbari was directed by Chicote to call again at
noon when the papers would be finished. Berbari, however, stimulated by anxiety, returned at 11.30
a.m., and though the statements of account were not ready Chicote assured him that they would be
handed to him if he would call again in the afternoon. upon again returning between 3 and 4 p.m.
Berbari found Chicote absent, and the statements of account unfinished. Nevertheless Berbari
prevailed upon the clerk in Chicote's office, after the latter had interposed some objections, to deliver
to Berbari the papers in the handwriting of Chicote from which the final statement of account should
have been made. With these papers in his possession Berbari at once withdrew from the office and
caused photographs of the same to be taken. The reason for the taking of this step was that Berbari
admittedly had no written document signed by Chicote by which he could prove the existence of the
alleged partnership; and, being in a state of uncertainty as to what disposition Chicote might make of
these papers, Berbari wished to secure the evidence supplied by the memoranda here stated in
Chicote's handwriting. Having thus procured the photographs to be made, Berbari returned the papers
to the clerk to be replaced on Chicote's desk. Presently Chicote arrived; and in response to Berbari's
inquiry, Chicote said, "My boy, I have forgotten it for the second time," and promised to have the
statement ready by the next forenoon without fail. Again, at 11 a.m. of the next day (Jan. 3, 1919)
Berbari returned to Chicote's office but still the statement was not ready. Instead, Chicote asked
Berbari to sign the document Exhibit F, already copied in this opinion, at the same time promising
that he would pay Berbari what he owed him. Upon this assurance Berbari affixed his signature to
that paper. At the same time Chicote said he would find out the state of his account at the bank and
that by the next day (January 4) everything would be settled.
On that day Chicote submitted to Berbari a document (Exhibit 22) by which shares of the Oil
Manufacturing Corporation to the amount of P85,000 were conceded to Berbari, on condition that the
latter would be responsible jointly with Chicote for the loan of P200,000 obtained from the Bank of
the Philippine Islands for the purchase of the land in Pandacan and machinery, as heretofore stated.
Berbari refused to sign this document, believing that "it stripped him of everything;" and he stated to
Chicote that he could not accept as a gift a thing that was his own, remainding him at the same time
that two days previously Chicote had told him (Berbari) that the profits of the latter in the deal last
above-mentioned were P58,900 and not P48,900 as now claimed. Chicote thereupon somewhat
ambiguously observed that Berbari should give his conformity to that document, otherwise he would
have to wait for a better opportunity. The next day (January 5) Chicote confessed to Berbari that he
did have the money to meet the latter's claims and asked him to wait for better times. From this point
of time dates the final rupture of their relations and he commencement of the hostilities of which this
criminal action is the leading feature.
In view of the developments narrated above, Berbari saw clearly that in subscribing for P150,000, par
value of the shares of the Tayabas Oil Company, he had assumed an obligation which he now could
not reasonably hope to fulfill, for it was easily perceptible that Chicote had in some way become
involved to such an extent that he was then unable to supply the promised capital and in all
probability would withhold it altogether. Indeed, the last conversation between the two clearly
amounts to notification from Chicote to Berbari that anything the latter might thereafter get out of
Chicote could be obtained only by litigation, which might be of lengthy duration and doubtful issue.
Moreover, it was obvious to Berbari that, if he should deliver to the Tayabas Oil Company the money
then held by him for application to the payment of the first installment of 25 per cent due upon his
subscription of P150,000, the natural, if not inevitable, result would be that this money would be
totally lost, for his shares could be put up and sold for nonpayment of the subsequent calls.
Berbari therefore at once decided to withhold payment to the Tayabas Oil Company of the amount of
P37,500, which he had received from Chicote on December 7, 1918, until some satisfactory
adjustment should be effected of the contention between himself and Chicote; and he was supported
in this resolution by the concurrent advice of at least five able lawyers of the Manila Bar to the effect
that he could properly hold this money in suspense under the conditions above set forth.
Accordingly on January 11, 1919, Berbari wrote a letter to Chicote in which his position was explicitly
defined in the following language:
MY DEAR SIR:
In conformity with what was agreed upon in the document of sale of the business of the "Compañia
de Aceites de Manila," acquired by you, and in conformity with what was decided in the special
general meetings of said corporation, I hereby demand of you the payment of forty-six thousand four
hundred and eighty pesos, Philippine currency (P46,480), which belong to me for the two hundred
and eighty (280) shares remaining of the three hundred and thirty-five (335) shares which I had the
account of which is as follows:
Nominal value of the 280 shares ......................................
P28,000
50% of the declared dividend ...........................................
14,000
Distributable sum, P16 per share ......................................
4,480
Total .........................................................................………
46,480
I also demand that you send me as soon as possible a detailed account of the profits obtained by the
sum withdrawn by you from the credit of P200,000 taken from the Bank of the Philippine Islands and
guaranteed by the Dominican Friars, in relation to the organization of the Oil Manufacturing Co., as
per agreement.
As to the certificate of title No. 64 for two hundred and eleven shares of the Oil Manufacturing Co.,
Inc., which a few moments after their issue in my favor I insisted in returning to you as president of
said corporation "Oil Manufacturing Co., Inc.," for, as I have already stated to you, the value of the
shares which I had in the "Compañia de Aceites de Manila" placed and depository of said price, just as
you yourself promised to me.
With respect to the P37,500 which you furnished me in order to pay the 25% of my subscription to
the capital stock of the Tayabas Oil Co., Inc., I must tell you that for reasons imputable to yourself
alone, the contribution could not be made on time and I have determined to hold this account in
suspense until the final settlement of our account, with respect to which the balance in my favor is
very much greater than said amount.
After the preceding letter was written Berbari brought an ordinary civil action in the Court of First
Instance of the city of Manila against Chicote for the recovery of the value of his shares in the
"Compañia de Aceites de Manila" and for the liquidation of the partnership with P200.000 capital
formed between them for the purchase of lands in Pandacan and machinery for the Oil Manufacturing
Co.; and Chicote, on his part, caused the present prosecution for estafa to be instituted against
Berbari. The latter thereupon in turn caused a criminal action to be instituted against Chicote for
perjury; and Chicote apparently in reprisal instituted against Berbari and the Tayabas Land Company
other civil actions.
From the facts above stated, in connection with other matters in evidence before us, the following
conclusions are deduced by us pertinent to the determination of this case:
1. By the agreement between Chicote and Berbari with reference to the organization of the
Tayabas Oil Company, the two became equally interested in the 1,500 shares of capital stock for
which Berbari subscribed; and a relation between them was thus created such as exists between the
participants in a joint account under articles 239 et seq. of the Code of Commerce. The managing
partner of this joint account was intended to be Berbari, and in his personal name accordingly the
subscription was entered.
2. It was understood and agreed that the money necessary to pay for these shares would be
supplied by Chicote out of the proceeds of certain profitable transactions in the past in which be and
Berbari were interested, and in this connection it is unnecessary to determine whether they were
equally interested in those profits or not.
3. The sum of P37,500 was delivered by Chicote to Berbari in December, 1918, for the express
purpose of being applied to the first payment of 25 per centum on the subscription referred to.
4. Early in the month of January, 1919, Berbari learned that Chicote could not, or would not,
place at Berbari's disposal the means necessary to enable the latter to comply with his engagement to
the Tayabas Oil Company, and he further learned that Chicote did not recognize his claim to share
equally in the profits of the former venture, or ventures, from which the capital for the new enterprise
should have been derived.
5. In view of these developments Berbari determined not to apply the money which he had
received, as above stated, to the purpose for which it was detained; and he also afterwards refused
upon demand to return the same to Chicote, retaining it under his control, subject to the adjustment
of his contention with Chicote.
6. This position was assumed by Berbari in good faith not only with a view to saving this
capital, which otherwise would have been exposed to the danger of less from the inability of Berbari
to pay the future installments of his subscription, but also with a view to his protection in the
impending controversy over his alleged interest in the profits of former ventures.
In the light of these findings, which we believe to be incontrovertible, the offense of estafa has not
been committed. It is undoubtedly true that upon receiving the money in question (P37,500), Berbari
became obligated to apply it to the purpose for which it was destined, and if that obligation be viewed
as an isolated thing, it might appear that his failure to apply the money as agreed, coupled with his
refusal to return it to Chicote, makes out a case under subsection 5 of article 535 of the Penal Code.
But the engagement of Berbari to apply the money to the purpose agreed cannot be properly viewed
as an isolated fact; for that obligation was intimately connected with the obligation which Berbari had
assumed to pay for the whole 1,500 shares; and when it became evident that Chicote could not, or
did not, intend to supply the means which alone would have made possible the fulfillment of Berbari's
entire obligation, the latter was necessarily released from the obligation to apply the money in
question to the payment of the first installment of the shares. In other words the specific obligation to
apply the money to the destined purpose has been arrested by the threatened default of Chicote with
respect to the subscription as a whole. It was not without reason, therefore, that Berbari asserted in
his letter of January 11, 1919, to Chicote, that the failure to apply the money as agreed was due to
causes imputable to the latter.
In applying subsection 5 of article 535 of the Penal Code, it must not be forgotten that this provision
annexes a penalty to the infringement of a certain class of civil obligation; and in considering whether
a civil obligation supposedly infringed has been nullified or arrested, reference must be had to the
conceptions of obligation which inform the civil law. In the case before us Chicote was bound to
supply the capital for the joint adventure, and when it became evident that he would default in the
performance of that obligation, Berbari was necessarily released from the obligation to pay the
P37,500 upon the subscribed shares.
Viewed in the light of this probable eventuality, the act of Berbari in refusing to apply the money must
be considered legitimate, as a discreet exercise of the power vested in his as manager (gestor) of the
joint account, and for the protection of both participants; for, be it noted, by defaulting in the making
of this first payment, the joint account would indeed become civilly liable to the Tayabas Oil
Company; but the responsibility thus incurred could hardly in any event have been anything like as
great as the total loss of the money here involved. Under these circumstances is doubtful whether a
civil court would have made a decree compelling Berbari to apply the money to the payment as
agreed, and certainly under the circumstances stated no criminal responsibility under subsection 5 of
article 535 of the Penal Code can attach for failure to comply with that obligation.
We note that in paragraph 4 of the document prepared by Chicote and signed by both parties on
January 3, 1919 (Exhibit F), it is agreed that in case of future calls upon Berbari's subscription of
P150,000 to the capital stock of the Tayabas Oil Company, each party shall pay the part proportional
to his own half-interest in that subscription. The purpose in framing this paragraph evidently was to
indicate thereby a severance of the obligations of the parties for the future; but in view of the
circumstance that the entire subscription was in the name of Berbari and that Berbari had no other
means than those to be supplied by Chicote to meet that obligation; the paragraph referred to is of no
significance.
It will be observed that in case now under consideration the accused has in favor not only the
circumstance that, as manager, he had actual and lawful control of the joint account with respect to
the 1,500 shares subscribed by him, but further circumstance that independent accounts are pending
unsettled between the two; and his refusal to apply or surrender the money in question is in our
opinion justified by these circumstances.
The discussion in cases of this kind must always revolve more or less around the question of the good
or bad faith with which the accused has acted; and it is fundamental here that, to be characterized as
estafa, the reprobated act must have been done with fraudulent intent. The authorities upon this
point are entirely clear. (III Viada, 4th ed., pp. 515, et seq., especially Questions XIII, XV, XXIII,
XXX, and XXXV.) And no case can be cited where a person believed by the court to have acted
honestly, under reasonable necessity for self-protection, has ever been condemned under the
provision of law (art. 535, subs. 5, Penal Code) which supplies the basis of this prosecution.
In considering the application of that provision both judges and lawyers are prone to proceed upon
the assumption that the mere detention of property by one who has received it under the conditions
there defined makes out a prima facie case of estafa; but as pointed out in United States vs. Bleibel
(34 Phil., 227), this is not absolutely correct. It is the fraudulent misapplication, appropriation, or
conversion of the property which really constitutes the crime of estafa. The mere delay in the
fulfillment of the trust, without a fraudulent conversion, involves only a civil liability. In this class of
cases perhaps more than any other is applicable the maxim non est reus nisi meñs sit rea.
In the case of United States vs. Santiago (27 Phil., 408), the accused was an insurance agent who
had collected premiums with the obligation to remit them intact to the company. While acting in this
capacity he collected a certain sum which he failed to turn over to the company. The justification for
this retention of the money was based on the ground that the company had failed to give him credit
on certain policies written by him. This court held that no estafa had been committed, saying:
The real question for determination in this case is, therefore whether the accused, in good faith
believed the company to be indebted to him in the amount which it is charged and admitted he
collected and failed to turn over. Upon this point we are of opinion that the evidence is not sufficiently
conclusive to sustain a finding beyond a reasonable doubt. It is quite evident that there were
differences between the accused and the company's local and general agents as to whom the
commissions on various policies should be paid; and giving the accused the benefit of the doubt, we
do not think that the evidence of record is sufficient to maintain a finding that his claim of
indebtedness against the company was not made in good faith, in the honest belief that he entitled to
the commissions claimed by him.
A court of last resort naturally hesitates to announce any hard and fast rule that might tend to impair
the efficacy of article 535, subsection 5, as a deterrent to dishonesty. Each case must be decided on
its own particular facts. All that can be here safely stated is that a conviction for estafa under that
provision cannot be sustained against any person — be he agent, partner or what not — who has in
good faith retained the property committed to his care for the purposes of reasonable self-protection
against his principal in the same or related matters.
In the case before us it appears that the accused has not in fact misappropriated the money in
question, in the sense of squandering it or applying it to his own personal use, though it does appear
that he has remitted it, subject to recall, to a foreign country — evidently for the purpose of placing it
beyond the reach of attachment at the instance of Chicote. The adoption of this precautionary
measure whether justifiable in law or not, does not in our opinion vitiate the bona fides of his position
in general.
It should not escape attention that the estafa supposedly committed in this case consists primarily of
the failure of the accused to deliver the money in question to the Tayabas Oil Company; but, as has
been shown, this offense was not committed. Equally illusory is the idea that the same offense has
been committed by the failure of the accused to return the money on demand to Chicote; for the
express undertaking of the accused was to apply the money to the purpose agreed upon, and if the
situation is such as destroy the penal consequences that might ordinarily have followed from the
nonperformance of the obligation, the subsequent failure to return the money cannot be followed by
penal consequences. Upon this point the article referred to must be interpreted to mean that where a
person is obligated to deliver or make specific application of money or property committed to his care,
the unjustified failure to make such delivery or application constitutes estafa; and likewise where a
person is obligated to return money or property committed to his case unjustified failure to return the
same will constitute estafa. But this provision cannot be construed to mean that a person who has
obligated himself to make specific application of property, but is justified in refusing to make such
application, can be held liable for estafa in refusing to return the same on demand. In other words,
the estafa contemplated in the law consists, in either alternative, of the breach of the primary civil
obligation to which the person supposedly guilty is subject, not in the breach of a secondary
obligation like that if returning property on demand after breach of the original obligation. If the
failure to apply the property as agreed creates only a civil obligation, the obligation to return is also
exclusively of a civil nature.
In the course of the argument attention has been directed to the case of United States vs. Clarin (17
Phil., 84), where this court held that the failure of an industrial partner to return to the capitalist
partner the capital brought into the partnership by the latter is not an act constituting the crime of
estafa under the article cited. Evidently so, because the estafa contemplated in that provision
contemplates the breach of the duty to deliver or return the specific money or property received by
the person to whom it is entrusted; and as between partners there is a mere duty to account, not a
duty to return the very money received. In the case before us there was an express undertaking on
the part of Berbari to pass on to the Tayabas Oil Company the money which he had received from
Chicote, and we would hesitate to hold that this express obligation was affected by the circumstance
that they were partners. Justification must therefore be sought in other incidents of the case than the
mere fact that the parties were partners in a joint account.

In conclusion we have merely to add that the trial judge erred in excluding evidence offered by the
attorneys of the accused for the purpose of showing that he was joint owner with Chicote of the
profits resulting from their previous commercial ventures as well as other evidence showing that he
acted under the advice of competent attorneys in retaining the money that had been committed to his
hands. This matter was entirely competent as tending to show the good faith of the accused, and as
such we have considered it. But, as already suggested, we must not be understood as having made
any pronouncement upon the disputed question whether or not the accused really has the interest
claimed by him in the profits of the enterprises mentioned.

From what has been it follows that the judgment must be reversed and the appellant will be absolved
from the complaint. It is so ordered with costs of both instances de oficio.

Johnson, Araullo, Avanceña and Villamor, JJ., concur.