EN BANC

[G.R. No. 138086. January 25, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CONDE RAPISORA

y ESTRADA, accused-appellant.

DECISION
VITUG, J.:

Before this Court, by way of automatic review, is the decision of the Regional Trial Court of
Mandaluyong City, Branch 214,[1] convicting Conde E. Rapisora of the complex crime of
"Forcible Abduction with Rape" and sentencing him to suffer the supreme penalty of death.
Rapisora was indicted in an information that read:

"That on or about the 5th day of August, 1997, in the City of Mandaluyong,
Philippines, a place within the jurisdiction of this Honorable Court, the above-named
accused, while armed with a knife, and pretending to be a relative of the private
complainant and against the will of Irene Hermo y Cajipe and with lewd design, did,
then and there willfully, unlawfully and feloniously abduct and carry away said Irene
Hermo y Cajipe, a seventeen year old girl, while she was walking along Shaw
Boulevard, this City and thereafter forced her to ride in a taxi and brought her to a
Filipinas Walk Inn and while inside, accused with lewd design and at the same time,
poking a knife at her, hence, by means of force and intimidation, did, then and there
wilfully, unlawfully and feloniously have carnal knowledge with said Irene Hermo y
Cajipe, a minor, against her will and consent for several times."[2]

The accused entered a plea of "not guilty" to the charge. Evidence was thereupon adduced
by, respectively, the prosecution and the defense.
The trial court gave a resumé of the evidence given at the trial, starting with that submitted
by the prosecution.

"At about 11:30 a.m. of August 5, 1997, Irene Hermo y Cajipe, a 17 year old
household helper of Susana Dy, was walking along the corner of Pinagtipunan St. and
Shaw Boulevard, Mandaluyong City after coming from Aling Naty's store where she
bought vegetables, when Conde Rapisora y Estrella, the accused in this case,
approached and told her `you're here' (nandito ka pala) to which she replied `who are
you?' Conde Rapisora introduced himself that he is her Tito Andy. He told her that
she could not remember him anymore because she was still small when her mother
left her to his care. Few minutes later, Conde Rapisora called a taxicab then dragged
and forced Irene Hermo to board the same. She did not, however, resist because he
poked a knife on her side (pp. 10-11 TSN Jan. 20, 1998).

"They were seated at the rear passenger seat with Conde Rapisora seated on her right
side with his knife poked on her right side. He warned her to keep quiet. He also told
her that she had grown bigger and his wife, her Ate Karen, would be very happy to
see her since they will be going to their place (pp. 11-13 TSN, ibid).

"Irene Hermo noticed that they alighted in Sta Mesa near a motel. He instructed her
to hold his waist so that his wife Karen will be very happy. He brought her to a house
with a green painted gate and a store in front (p. 14 TSN, ibid).

"Reaching the store, the accused got the key inside. She waited for the accused and
after he had returned they went inside the house. Irene Hermo thought that it was his
house. They entered a room, which according to the accused is the room of his wife
Karen. While they were about to enter a room, the accused called up the name of
Karen, then he opened it and suddenly pushed Irene inside. He poked his knife at her
and told her not to shout and resist (pp. 15-16 TSN, ibid).

"Accused ordered her to remove her clothes but when she resisted, he undressed
her. He also removed his clothes and told her to lie in bed. He ordered her to spread
her legs which the victim obeyed. He forced his penis to enter her vagina but it could
not get in because she was moving (malikot). So he inserted his finger. He ordered
the victim to masturbate him and when his penis hardened, the accused rammed it into
her vagina (pp. 17-18 TSN, ibid).

"She recalled that the accused inserted his penis to her vagina six (6) times. The
accused then placed his hardened penis inside her mouth, licked her vagina, sucked
her breast and placed her tongue insider her ears. She was shouting but the accused
placed a towel on her mouth.

"Thereafter a roomboy knocked on the door and told the accused that it was already
time.

"The accused immediately put on his clothes and left the room leaving behind the
victim. She put on her clothes too and went out and hurriedly left the place. The
accused chased her and told her that she [would] take her home, but she declined his
offer. She [ran] and took a passenger jeep (pp. 23-24, TSN, ibid)."[3]
 Rapisora did not deny that he was with Irene in the morning of 05 August 1997 and that the
two proceeded to and stayed awhile at the Filipinas Walk-in Motel. He claimed, however, that
private complainant had consented to it all. The trial court summed up Rapisora's version of the
case.

"The accused, who was a member of the Mandaluyong Fire Department since 1995
until August 5, 1997, x x x claimed that he first met the victim in the morning of
August 1, 1997 at Market Place Shopping Mall, Mandaluyong City which is infront of
Kalentong Fire Station where he was assigned. They chanced upon each other while
they were both viewing the still pictures displayed outside the moviehouse of the
shopping mall. Allegedly, the victim introduced herself to him as Jocelyn and a
cashier in a grocery in Shaw Boulevard. He gave his name as Andy Villanueva. They
had a beautiful conversation wherein the victim even kidded him that he looked like
actor Andy Poe (pp. 5-12 TSN March 18, 1998).

"They again met on August 3, 1997 at the same shopping mall at about 8:00 o'clock in
the morning. It was his day-off and the victim was there to buy something. The only
thing they talked about was that they agreed to see each other on August 5, 1997 in
front of that shopping mall (pp. 14-16 TSN, ibid).

"So, on August 5, 1997 about 10:00 in the morning, the accused was already standing
in front of the shopping mall waiting for the victim, who arrived past 10:00 in the
morning. The accused noticed that while the victim was approaching him, she was
looking for something in her pocket. He asked her what was that she was looking for,
and the victim told him that she lost her P300.00 in her pocket. She then suggested
that they looked for her money by going back to the route taken by her which was
from Kalentong to Shaw Boulevard to see if her money had dropped on the
ground. He alleged that while they were walking along Kalentong, the victim was
holding his hand and was not also looking for her lost money.

"Later, the victim told him if he can help her pay that missing money but the accused
asked her when is she going to pay him. The victim answered, later, and when he
asked what time, she merely kept quiet.

"They went back to the shopping mall, took a snack and watched a movie.

"Inside the moviehouse they sat beside each other. She leaned on his chest, kissed
and embraced each other. As he inserted his finger on her private parts her legs
spread and she embraced him tightly. She then uttered, `slowly only' (`dahan dahan
lang daw'). He then noticed that her hand was going down to his pants until she got
hold of his penis. She unzipped his pants, held his penis and asked him if she could
place it in her mouth (pp. 22-30 TSN, ibid).
"The accused told him that it could not be because of the chair (`hindi pwede kasi
nakaharang and silya') so he invited her to go somewhere else. It was the victim who
suggested that they go to a place in Sta. Mesa which is near the place where she
previously worked. She asked the accused if he had money and when the latter
answered in the affirmative they boarded a taxi and proceeded to Filipinas Walk-in
Motel.

"While they were inside the taxicab the victim reminded him of the P300.00 she will
borrow from him. So the accused took out his wallet and showed him his
money. While he was opening his wallet she saw his I.D. and she immediately
grabbed it. It was then that the victim knew his real name (pp. 31-35 TSN, ibid).

"They checked-in at the motel at about 1:00 in the afternoon. As soon as they entered
the room, the victim immediately took off her clothes because the accused told her to
take a bath first. While she was removing her panty the accused saw that she had her
menstruation. Since the comfort room was outside the room, the victim did not take a
bath anymore. Meanwhile, it was during this moment when the victim revealed her
name and worked (pp. 36-39 TSN, ibid).

"The accused refused to have sexual intercourse with the victim because of her
menstruation. So the victim instead placed herself on top of him, kissed his body,
held his penis and placed it inside her mouth. After he reached his climax, he
hurriedly went to the comfort room to wash himself (pp. 40-44 TSN, ibid).

"Thereafter, the victim put her clothes on and hurriedly left the room leaving the
accused behind."[4]

The trial court gave no weight to the narration of the accused, describing it as a “fantastic
fallacy”[5] and as having "merely showed his sexual perversity.”[6] Convicting the accused, the
trial court pronounced a death sentence on him.

"WHEREFORE, this Court finds the accused, CONDE RAPISORA Y ESTRADA

guilty beyond reasonable doubt of the crime of forcible abduction with rape, as
defined and penalized under Article 335 (as amended by R.A. 7659 and R.A. 8353)
and Article 342 in relation to Article 48 of the Revised Penal Code, and hereby
imposes upon him the penalty of DEATH, with the accessory penalties of the law, to
indemnify the private complainant, IRENE HERMO in the sum of P50,000.00 as civil
indemnity.

"Costs against the accused.

"SO ORDERED."[7]
 Accused-appellant, praying for an acquittal and a reversal of the judgment rendered by the
trial court, came up with the following assignment of errors:
"I. THE COURT A QUO ERRED IN GIVING CREDENCE TO THE INCREDIBLE AND
IMPLAUSIBLE TESTIMONY OF IRENE HERMO.
"II.THE COURT A QUO ERRED IN CONVICTING ACCUSED-APPELLANT OF THE
CRIME OF FORCIBLE ABDUCTION WITH RAPE.
"III.THE COURT A QUO ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-
APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND
REASONABLE DOUBT."[8]
The court a quo has accorded full credit to the testimony of Irene, "a simple and
unsophisticated girl," finding it to be a “straightforward, clear and x x x good account" of how
she has been "beastly attacked by the accused.”[9] The long standing rule, consistently upheld by
jurisprudential holdings, is that the assignment of values to the testimony of witnesses must aptly
be left to the trial court, it being considered to be in the best position to discharge that
function. Invariably, its findings on this issue are given the highest degree of respect and, absent
strong cogent reasons to warrant otherwise, will not ordinarily be disturbed on appeal.[10]
Appellant would urge the Court to ignore the testimony of complainant for her alleged
failure to call for help. In People vs. Akhtar,[11] similarly involving the crime of forcible
abduction with rape, the same contention was raised. This Court, rejecting the proposition made
by the alleged offender, held that -

“Complainant’s failure to ask for help when she was abducted, or to escape from
appellant’s house during her detention, should not be construed as a manifestation of
consent to the acts done by appellant. For her life was on the line. Against the armed
threats and physical abuses of appellant, she had no defense. Moreover, at a time of
grave peril, to shout could literally be to court disaster. Her silence was born out of
fear for her safety, to say the least, not a sign of approval.”[12]

Almost exactly could be said in the case at bar. Private complainant, Irene Hermo, testified:
"ATTY. FERRER:
Did you not think to call your employer Susana Dy?
"A I told him that I have to go home because I still have to cook, Sir.
"Q And even if you have an obligation to cook you still went with him?
"A He forced me, Sir.
"Q How did he force you?
"A He hold me and according to him we will go to their house, Sir.
"Q And you did not try to free yourself before you enter the taxi?
"A I was afraid of the knife, Sir.
"Q You did not make an outcry?
 "A No, Sir.
"Q And you did not attempt to free yourself before you boarded the taxi?
"A I tried to resist but he drag me inside the taxi, Sir.
"Q How did you resist him before you boarded that taxi?
"A He was holding my arm, Sir.
"Q You did not forcibly free yourself?
"A No, Sir.
"Q Once you were inside the taxi did you not protested to the driver?
"A I was afraid of the knife that was pointed at my side, Sir.
"Q Conde was not saying any word while he was pointing the knife to your side inside the taxi?
"A He told me that once we reach their house Auntie Karen will be happy because I am already big,
Sir.
"Q Did you not complain to the driver of the alleged poking?
"A No, Sir. I was afraid he might harm me."[13]
When the incident happened, Irene, a frail and weak girl, was only sixteen years old and just an
elementary graduate. Rapisora, thirty-six years old and a government employee at the Bureau of
Fire Protection in Mandaluyong City, was described by the trial judge as being “husky, muscular
and stronger (in built) than the complainant." Asked during the cross-examination why she did
not try to flee when she was left alone for about two minutes at the entrance of the motel, Irene
could only utter, “wala akong maisip."[14]
This Court, in several cases, has observed that behavioral psychology would indicate that
most people, confronted by unusual events, react dissimilarly to like situations. [15] Intimidation,
more subjective than not, is peculiarly addressed to the mind of the person against whom it may
be employed, and its presence is basically incapable of being tested by any hard and fast
rule. Intimidation is normally best viewed in the light of the perception and judgment of the
victim at the time and occasion of the crime.[16]
For his second and third assigned errors, Rapisora argued that the complainant “did not offer
even the slightest resistance to the bestial desire of the accused-appellant”[17] and, to support this
claim, cited the fact that the medical report showed no findings of any external physical injury on
her body. The report on the medical examination conducted on the complainant indeed
concluded that there was “no evident sign of extragenital physical injury," albeit adding the
phrase, "healing hymenal laceration present.”[18] The medico-legal officer, Dr. Alvin A. David,
who conducted the examination explained that laceration due to sexual intercourse would, under
normal circumstances, be apparent only within the first 48 hours immediately following the
act. This finding would be consistent with the testimony of Irene that she was raped two days
prior to the time that she could undergo the physical examination.
Physical resistance, in any case, need not be established in rape cases when threats and
intimidation are employed and the victim ultimately gives up to the unwanted embrace of her
rapist.[19] Even when a man lays no hand on a woman, yet if by the array of physical forces he so
overpowers her mind that she does not resist or she ceases resistance through fear of greater
harm, the consummation of unlawful intercourse by the man would still be nothing less than
rape.[20] Rapisora cowed Irene into silence and submission from the time of abduction until the
consummation of the rape. While they were in the taxicab, Rapisora was poking a knife at her
side. Inside the motel room, accused-appellant once more threatened Irene with the weapon,
ordering her neither to resist nor to shout. When Irene made a loud cry because she could no
longer stand the pain of her assailant’s abuses, Rapisora unmindfully shoved a towel into her
mouth to mute her cries.
The way Irene acted after the incident would show consistency in her story. From the motel,
she immediately went to her employer and recounted the incident. Irene also told her aunt, who
later arrived, about what the accused had done to her. She, together with her aunt, then went
back to the Filipinas Walk-in Motel and inquired from the motel roomboys about the identity of
the accused. Irene and her aunt were informed that the man had been frequenting the
place. Forthwith, they reported the matter at the Mandaluyong City police station. The
following day, they proceeded to the National Bureau of Investigation for the medical
examination of Irene but since there was no physician available at the time, she was examined
only the following day. Four days later, Irene was informed that a man was arrested and
detained at the Western Police District jail for an incident similar to what had befallen her at the
Filipinas Walk-in Motel. Accompanied by her uncle, she immediately repaired to the police
station and there personally identified the accused to be the person who had abducted and raped
her.
The conduct of the woman immediately after an alleged sexual assault can be crucial in
establishing the truth or falsity of her charge.[21] For instance, the victim's instant willingness, as
well as courage, to face interrogation and medical examination could be a mute but eloquent
proof of the truth of her claim.[22]
The Court is satisfied that the trial court has correctly evaluated the evidence and been right
in finding the accused guilty beyond reasonable doubt. The crime committed, however, is not
the complex crime of "forcible abduction with rape." Forcible abduction is absorbed in the crime
of rape if the real objective of the accused is but to rape the victim,[23] a fact that is here clearly
evident given the circumstances of the case.
The information against the accused has charged him with multiple rape, at least six times
according to the trial court in its findings. Section 3, Rule 120, of the Rules of Court[24] provides
that “when two or more offenses are charged in a single complaint or information, and the
accused fails to object to it before trial, the court may convict the accused of as many offenses as
are charged and proved, and impose on him the penalty for each and every one of them x x x.”
Rapisora can thus be held responsible for as many rapes as might have been committed by him
which are duly proven at the trial.
The rapes have been committed with the use of a deadly weapon, a knife, for which
Republic Act 7659 prescribes the penalty of reclusion perpetua to death. There being neither
aggravating nor mitigating circumstance shown, appellant should only be sentenced to reclusion
perpetua, not death, for each of the six counts of rape.
 Conformably with prevailing jurisprudence, an award of P50,000.00 moral damages should
be awarded to the victim for each of the offenses established in addition to the P50,000.00 civil
indemnity already ordered by the trial court.
WHEREFORE, the Court AFFIRMS the decision of the Regional Trial Court of
Mandaluyong City, Branch 214, in Criminal Case No. 115-H-MD finding accused-appellant
Conde Rapisora y Estrada guilty beyond reasonable doubt of six counts of rape but MODIFIES
the death penalty imposed by it on said accused-appellant by reducing it to reclusion
perpetua for each count and to pay the victim, Irene Hermo y Cajipe, the amount of P50,000.00,
by way of moral damages, in addition to the P50,000.00 civil indemnity awarded by the trial
court, for each count of rape, or a grand total of P600,000.00 damages.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez,
JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 84163 October 19, 1989

LITO VINO, petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES and THE COURT OF
APPEALS, respondents.

Frisco T. Lilagan for petitioner.

RESOLUTION

GANCAYCO, J.:

The issue posed in the motion for reconsideration filed by petitioner of the resolution
of this Court dated January 18, 1989 denying the herein petition is whether or not a
finding of guilt as an accessory to murder can stand in the light of the acquittal of the
alleged principal in a separate proceeding.

At about 7:00 o'clock in the evening of March 21, 1985, Roberto Tejada left their
house at Burgos Street, Poblacion, Balungao, Pangasinan to go to the house of
Isidro Salazar to watch television. At around 11:00 P.M., while Ernesto, the father of
Roberto, was resting, he heard two gunshots. Thereafter, he heard Roberto cry out
in a loud voice saying that he had been shot. He saw Roberto ten (10) meters away
so he switched on the lights of their house. Aside from Ernesto and his wife, his
children Ermalyn and Julius were also in the house. They went down to meet
Roberto who was crying and they called for help from the neighbors. The neighbor
responded by turning on their lights and the street lights and coming down from their
houses. After meeting Roberto, Ernesto and Julius saw Lito Vino and Jessie Salazar
riding a bicycle coming from the south. Vino was the one driving the bicycle while
Salazar was carrying an armalite. Upon reaching Ernesto's house, they stopped to
watch Roberto. Salazar pointed his armalite at Ernesto and his companions.
Thereafter, the two left.

Roberto was brought to the Sacred Heart Hospital of Urdaneta. PC/Col. Bernardo
Cacananta took his ante-mortemstatement. In the said statement which the victim
signed with his own blood, Jessie Salazar was Identified as his assailant.

The autopsy report of his body shows the following-

Gunshot wound

POE Sub Scapular-5-6-ICA. Pal

1 & 2 cm. diameter left

Slug found sub cutaneously,

2nd ICS Mid Clavicular line left.

CAUSE OF DEATH

Tension Hemathorax 1

Lito Vino and Sgt. Jesus Salazar were charged with murder in a complaint filed by
PC Sgt. Ernesto N. Ordono in the Municipal Trial Court of Balungao, Pangasinan.
However, on March 22, 1985, the municipal court indorsed the case of Salazar to
the Judge Advocate General's Office (JAGO) inasmuch as he was a member of the
military, while the case against Vino was given due course by the issuance of a
warrant for his arrest. Ultimately, the case was indorsed to the fiscal's office who
then filed an information charging Vino of the crime of murder in the Regional Trial
Court of Rosales, Pangasinan.

Upon arraignment, the accused Vino entered a plea of not guilty. Trial then
commenced with the presentation of evidence for the prosecution. Instead of
presenting evidence in his own behalf, the accused filed a motion to dismiss for
insufficiency of evidence to which the prosecutor filed an answer. On January 21,
1986, 2 a decision was rendered by the trial court finding Vino guilty as an accessory
to the crime of murder and imposing on him the indeterminate penalty of
imprisonment of 4 Years and 2 months of prision correccional as minimum to 8
years ofprision mayor as maximum. He was also ordered to indemnify the heirs of
the victim in the sum of P10,000.00 being a mere accessory to the crime and to pay
the costs.

The motion for reconsideration filed by the accused having been denied, he
interposed an appeal to the Court of Appeals. In due course, a Decision was
rendered affirming the judgment of the lower court. 3

Hence, the herein petition for review wherein the following grounds are invoked:

1. THAT AN ACCUSED CAN NOT BE CONVICTED AS AN

ACCESSORY OF THE CRIME OF MURDER FOR HAVING AIDED IN
THE ESCAPE OF THE PRINCIPAL IF SAID ACCUSED IS BEING
CHARGED SOLELY IN THE INFORMATION AS PRINCIPAL FOR
THE SIMPLE REASON THAT THE CRIME PROVED IS NOT
INCLUDED IN THE CRIME CHARGED.

2. THAT "AIDING THE ESCAPE OF THE PRINCIPAL" TO BE

CONSIDERED SUFFICIENT IN LAW TO CONVICT AN ACCUSED
UNDER ARTICLE 19, PARAGRAPH 3 OF THE REVISED PENAL
CODE MUST BE DONE IN SUCH A WAY AS TO DECEIVE THE
VIGILANCE OF THE LAW ENFORCEMENT AGENCIES OF THE
STATE AND THAT THE "ESCAPE" MUST BE ACTUAL;

3. THE CONVICTION OF AN ACCESSORY PENDING THE TRIAL OF THE PRINCIPAL

VIOLATES PROCEDURAL ORDERLINESS. 4

During the pendency of the appeal in the Court of Appeals, the case against Salazar
in the JAGO was remanded to the civil court as he was discharged from the military
service. He was later charged with murder in the same Regional Trial Court of
Rosales, Pangasinan in Criminal Case No. 2027-A. In a supplemental pleading
dated November 14, 1988, petitioner informed this Court that Jessie Salazar was
acquitted by the trial court in a decision that was rendered on August 29, 1988.

The respondents were required to comment on the petition. The comment was
submitted by the Solicitor General in behalf of respondents. On January 18, 1989,
the Court resolved to deny the petition for failure of petitioner to sufficiently show
that respondent court had committed any reversible error in its questioned judgment.
Hence, the present motion for reconsideration to which the respondents were again
required to comment. The required comment having been submitted, the motion is
now due for resolution.
The first issue that arises is that inasmuch as the petitioner was charged in the
information as a principal for the crime of murder, can he thereafter be convicted as
an accessory? The answer is in the affirmative.

Petitioner was charged as a principal in the commission of the crime of murder.

Under Article 16 of the Revised Penal Code, the two other categories of the persons
responsible for the commission of the same offense are the accomplice and the
accessory. There is no doubt that the crime of murder had been committed and that
the evidence tended to show that Jessie Salazar was the assailant. That the
petitioner was present during its commission or must have known its commission is
the only logical conclusion considering that immediately thereafter, he was seen
driving a bicycle with Salazar holding an armalite, and they were together when they
left shortly thereafter. At least two witnesses, Ernesto and Julius Tejada, attested to
these facts. It is thus clear that petitioner actively assisted Salazar in his escape.
Petitioner's liability is that of an accessory.

This is not a case of a variance between the offense charged and the offense
proved or established by the evidence, and the offense as charged is included in or
necessarily includes the offense proved, in which case the defendant shall be
convicted of the offense proved included in that which is charged, or of the offense
charged included in that which is proved. 5

In the same light, this is not an instance where after trial has begun, it appears that
there was a mistake in charging the proper offense, and the defendant cannot be
convicted of the offense charged, or of any other offense necessarily included
therein, in which case the defendant must not be discharged if there appears to be a
good cause to detain him in custody, so that he can be charged and made to answer
for the proper offense. 6

In this case, the correct offense of murder was charged in the information. The
commission of the said crime was established by the evidence. There is no variance
as to the offense committed. The variance is in the participation or complicity of the
petitioner. While the petitioner was being held responsible as a principal in the
information, the evidence adduced, however, showed that his participation is merely
that of an accessory. The greater responsibility necessarily includes the lesser. An
accused can be validly convicted as an accomplice or accessory under an
information charging him as a principal.

At the onset, the prosecution should have charged the petitioner as an accessory
right then and there. The degree of responsibility of petitioner was apparent from the
evidence. At any rate, this lapse did not violate the substantial rights of petitioner.

The next issue that must be resolved is whether or not the trial of an accessory can
proceed without awaiting the result of the separate charge against the principal. The
answer is also in the affirmative. The corresponding responsibilities of the principal,
accomplice and accessory are distinct from each other. As long as the commission
of the offense can be duly established in evidence the determination of the liability of
the accomplice or accessory can proceed independently of that of the principal.

The third question is this-considering that the alleged principal in this case was
acquitted can the conviction of the petitioner as an accessory be maintained?

In United States vs. Villaluz and Palermo, 7 a case involving the crime of theft, this
Court ruled that notwithstanding the acquittal of the principal due to the exempting
circumstance of minority or insanity (Article 12, Revised Penal Code), the accessory
may nevertheless be convicted if the crime was in fact established.

Corollary to this is United States vs. Mendoza, 8 where this Court held in an arson
case that the acquittal of the principal must likewise result in the acquittal of the
accessory where it was shown that no crime was committed inasmuch as the fire
was the result of an accident. Hence, there was no basis for the conviction of the
accessory.

In the present case, the commission of the crime of murder and the responsibility of
the petitioner as an accessory was established. By the same token there is no doubt
that the commission of the same offense had been proven in the separate case
against Salazar who was charged as principal. However, he was acquitted on the
ground of reasonable doubt by the same judge who convicted Vino as an accessory.
The trial court held that the identity of the assailant was not clearly established. It
observed that only Julius Tejada identified Salazar carrying a rifle while riding on the
bicycle driven by Vino, which testimony is uncorroborated, and that two other
witnesses, Ernesto Tejada and Renato Parvian who were listed in the information,
who can corroborate the testimony of Julius Tejada, were not presented by the
prosecution.

The trial court also did not give due credit to the dying declaration of the victim
pinpointing Salazar as his assailant on the ground that it was not shown the victim
revealed the identity of Salazar to his father and brother who came to his aid
immediately after the shooting. The court a quo also deplored the failure of the
prosecution and law enforcement agencies to subject to ballistic examinations the
bullet slug recovered from the body of the victim and the two empty armalite bullet
empty shells recovered at the crime scene and to compare it with samples taken
from the service rifle of Salazar. Thus, the trial court made the following observation:

There appears to be a miscarriage of justice in this case due to the ineptitude of the law
enforcement agencies to gather material and important evidence and the seeming lack of
concern of the public prosecutor to direct the production of such evidence for the
successful prosecution of the case. 9

Hence, in said case, the acquittal of the accused Salazar is predicated on the failure
of the prosecution to adduce the quantum of evidence required to generate a
conviction as he was not positively identified as the person who was seen holding a
rifle escaping aboard the bicycle of Vino.

A similar situation may be cited. The accessory was seen driving a bicycle with an
unidentified person as passenger holding a carbine fleeing from the scene of the
crime immediately after the commission of the crime of murder. The commission of
the crime and the participation of the principal or assailant, although not identified,
was established. In such case, the Court holds that the accessory can be
prosecuted and held liable independently of the assailant.

We may visualize another situation as when the principal died or escaped before he
could be tried and sentenced. Should the accessory be acquitted thereby even if the
commission of the offense and the responsibility of the accused as an accessory
was duly proven? The answer is no, he should be held criminally liable as an
accessory.

Although in this case involving Vino the evidence tended to show that the assailant
was Salazar, as two witnesses saw him with a rifle aboard the bicycle driven by
Vino, in the separate trial of the case of Salazar, as above discussed, he was
acquitted as the trial court was not persuaded that he was positively identified to be
the man with the gun riding on the bicycle driven by Vino. In the trial of the case
against Vino, wherein he did not even adduce evidence in his defense, his liability as
such an accessory was established beyond reasonable doubt in that he assisted in
the escape of the assailant from the scene of the crime. The identity of the assailant
is of no material significance for the purpose of the prosecution of the accessory.
Even if the assailant can not be identified the responsibility of Vino as an accessory
is indubitable.

WHEREFORE, the motion for reconsideration is denied and this denial is FINAL.

SO ORDERED.

Narvasa and Medialdea, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 96025 May 15, 1991

OSCAR P. PARUNGAO, petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

Herminio Z. Canlas for petitioner.

GUTIERREZ, JR., J.:p

May the Sandiganbayan, after finding that a municipal treasurer charged with
malversation of public funds is not guilty thereof, nevertheless convict him, in the
same criminal case, for illegal use of public funds?

The petitioner, a former municipal treasurer of Porac, Pampanga, was charged with
malversation of public funds allegedly committed as follows:

That on or about the month of September, 1980, or sometime

subsequent thereto, in the Municipality of Porac, Province of
Pampanga, Philippines, and within the jurisdiction of this Honorable
Court, OSCAR PARUNGAO, Municipal Treasurer of Porac, Pampanga,
hence a public officer having been appointed and qualified as such,
having custody or control of and accountable for the public funds
collected and received by him by reason of the duties of his office, did
then and there wilfully, unlawfully, feloniously and with abuse of
confidence, take, appropriate and convert to his own personal use and
benefit the amount of ONE HUNDRED EIGHTY-FIVE THOUSAND
TWO HUNDRED FIFTY PESOS (P185,250.00), Philippine Currency, to
the damage and prejudice of the government in the said amount.
(Rollo, p. 26)

The petitioner entered a plea of not guilty. During the pretrial conference, he
admitted that on September 29, 1980, as municipal treasurer of Porac, Pampanga,
he received from the Ministry of Public Works and Highways the amount of
P185,250 known as the fund for construction, rehabilitation, betterment and
improvement (CRBI) for the concreting of Barangay Jalung Road located in Porac,
Pampanga.

The prosecution presented six witnesses and tried to establish that the petitioner
misappropriated the fund for his personal use because while the fund was already
completely exhausted, the concreting of Barangay Jalung Road remained
unfinished.

In his defense, the petitioner accounted for the P185,250 fund as follows:
1. P126,095.59 was disbursed for materials delivered by the contractor under
Voucher Numbers 41-80-12-440 and 41-80-12-441 for P86,582.50 and P39,513.09
respectively.

2. P59,154.41 was used to pay, upon the insistence of the then Porac Mayor
Ceferino Lumanlan, the labor payrolls of the different barangays in the municipality.

After hearing, the respondent Sandiganbayan rendered a decision acquitting the

petitioner of the crime of malversation of public funds but convicting him of the crime
of illegal use of public funds. The relevant parts of the decision are set forth below:

The Certificate of Settlement (Exh. 5) issued to the accused certified

that his money, property and accountable forms as Municipal Treasurer
of Porac, Pampanga for the period from February 6,1980 to December
31, 1980, have been audited and found correct. It was signed by
Auditor 1 Rolando A. Quibote and approved by Provincial Auditor Jose
C. de Guzman. Being public officers with official duties to perform in the
exercise of the functions of their office, the presumption is in favor of
the lawful exercise of their functions and the regular performance of
their duties. (Sec. 5, par. m, Rule 131, Rules of Court). And quite apart
from that presumption of regularity in the performance of official duty
which necessarily extends to the correctness of the said certificate
issued in the course of the discharge of such duty, there exists no
serious ground to impugn the aforesaid document in the context of the
admission of prosecution witnesses Homer Mercado and District
Engineer Lacsamana regarding the delivery of materials and the
grading thereof on the project site by the contractor, the findings of
investigating NBI Agent Azares, that accused Parungao had submitted
disbursement vouchers and supporting documents from the CRBI
barangay Jalung fund to the Provincial Auditor's Office which were
audited and found in order by Auditor Quibote, and the
acknowledgments of Emerenciana Tiongco and auditing examiner Jose
Valencia that the disbursements of P86,582.50 and P39,513.09 under
vouchers 4180-12-440 and 4180-12-441 were duly entered in accused
Parungao's Treasurer's Journal of Cash Disbursements and Cashbook.
The foregoing considerations, and the presumption of innocence
accorded to every accused in a criminal prosecution, would not allow a
finding that the accused appropriated the P185,250.00 fund for his
personal use and benefit.

But while the accused could be deemed to have fully accounted for the
amount in question, the fact sticks out from the evidence like a sore
thumb that he allowed the use of part of the funds for a purpose other
than what it was intended. The said amount of P185,250.00 was
specifically allotted for the concreting of the barangay Jalung road in
 Porac, Pampanga. Instead of applying it fully to that particular project,
he gave P59,154.41 of it to the municipal mayor of Porac to pay the
labor payrolls of the different barangays of the municipality, resulting in
the non-completion of the project. He thereby violated the following
provision of Article 220 of the Revised Penal Code. (Rollo, pp. 48-49)

The petitioner filed a motion for reconsideration which was denied by the
Sandiganbayan, hence this petition for review. The petitioner raises the following
issues:

I. RESPONDENT SANDIGANBAYAN GRAVELY ABUSED ITS

DISCRETION AMOUNTING TO LACK OF JURISDICTION AND/OR IN
EXCESS OF JURISDICTION IN DENYING PETITIONER'S MOTION
FOR RECONSIDERATION AND IN AFFIRMING ITS DECISION
FINDING PETITIONER GUILTY OF TECHNICAL MALVERSATION.

II. RESPONDENT SANDIGANBAYAN GRAVELY ABUSED ITS

DISCRETION AMOUNTING TO LACK OF JURISDICTION AND/OR IN
EXCESS OF JURISDICTION IN NOT CONSIDERING IN FAVOR OF
THE PETITIONER DOCUMENTS WHICH ARE MUTE BUT
ELOQUENT PROOF OF HIS INNOCENCE. (Rollo, p. 14)

The petitioner argues that he cannot be convicted of a crime different and distinct
from that charged in the information.

The petitioner is correct. As recommended by the Solicitor General in his

manifestation, the Court grants the petition.

The 1987 Constitution mandates that the accused, in all criminal prosecutions, shall
enjoy the right to be informed of the nature and cause of accusation against him.
(Article III, Section 14 [21) From this fundamental precept proceeds the rule that the
accused may be convicted only of the crime with which he is charged.

An exception to this rule, albeit constitutionally permissible, is the rule on variance in

Section 4, Rule 120 of the Rules on Criminal Procedure which provides:

Sec. 4. Judgment in case of variance between allegation and proof.—

When there is variance between the offense charged in the complaint
or information, and that proved 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. (4a)
Section 5 of the same Rule indicates when an offense includes or is included in
another:

Sec. 5. When an offense includes or is included in another.—An

offense charged necessarily includes that which is proved, when some
of the essential elements or ingredients of the former, as this is alleged
in the complaint or information, constitute the latter. And an offense
charged is necessarily included in the offense proved, when the
essential ingredients of the former constitute or form a part of those
constituting the latter. (5)

Is the decision of the Sandiganbayan convicting the petitioner of the crime of illegal
use of public funds justified by the rule on variance? Does the crime of malversation
of public funds include the crime of illegal use of public funds, or is the former
included in the latter?

To both questions, the Court answers in the negative.

As gleaned from the information, the petitioner, a public officer, was accused of
wilfully, unlawfully, feloniously and with abuse of confidence, taking, appropriating or
converting to his own personal use, public funds for which he was accountable. The
alleged acts constitute malversation of public funds punishable under Article 217 of
the Revised Penal Code, which reads:

Art. 217. Malversation of public funds or property.— Presumption of

malversation.—Any public officer who, by reason of the duties of his
office, is accountable for public funds or property, shall appropriate the
same, or shall take or misappropriate or shall consent, or through
abandonment or negligence, shall permit any other person to take such
public funds or property, wholly or partially, or shall otherwise be guilty
of the misappropriation or malversation of such funds or property, shall
suffer: . . .

The essential elements of this crime are:

(a) the offender is a public officer; (b) by reason of his duties he is accountable for
public funds and property; and (c) he appropriates, takes, or misappropriates, or
permits other persons to take such public funds or property, or otherwise is guilty of
misappropriation or malversation of such funds or property.

On the other hand, Article 220 of the Revised Penal Code, for which the petitioner
was convicted, reads:

Art. 220. Illegal use of public funds or property. — Any public officer
who shall apply any public fund or property under his administration to
 any public use other than that for which such fund or property were
appropriated by law or ordinance shall suffer the penalty of prision
correccional in its minimum period or a fine ranging from one-half to the
total of the sum misapplied, if by reason of such misapplication, any
damage or embarrassment shall have resulted to the public service. In
either case, the offender shall also suffer the penalty of temporary
special disqualification.

The essential elements of this crime, more commonly known as technical

malversation, are:

(a) the offender is an accountable public officer; (b) he applies public funds or
property under his administration to some public use; and (c) the public use for
which the public funds or property were applied is different from the purpose for
which they were originally appropriated by law ordinance.

A comparison of the two articles reveals that their elements are entirely distinct and
different from the other. In malversation of public funds, the offender
misappropriates public funds for his own personal use or allows any other person to
take such public funds for the latter's personal use. In technical malversation, the
public officer applies public funds under his administration not for his or another's
personal use, but to a public use other than that for which the fund was appropriated
by law or ordinance.

Technical malversation is, therefore, not included in nor does it necessarily include
the crime of malversation of public funds charged in the information.

Since the acts constituting the crime of technical malversation were not alleged in
the information, and since technical malversation does not include, or is not included
in the crime of malversation of public funds, he cannot resultantly be convicted of
technical malversation.

The Sandiganbayan found that the petitioner had not taken, appropriated nor
converted the CRBI fund for his personal use and benefit. It, however, was of the
belief that based on the evidence given during trial, the petitioner was guilty of
technical malversation. What the respondent court should have done was to follow
the procedure laid down in Section 11, Rule 119 of the Rules on Criminal Procedure.

Sec. 11. When mistake has been made in charging the proper
offense — When it becomes manifest at any time before judgment, that
a mistake has been made in charging the proper offense, and the
accused cannot be convicted of the offense charged, or of any other
offense necessarily included therein, the accused shall not be
discharged, if there appears to be good cause to detain him. In such
case, the court shall commit the accused to answer for the proper
 offense and dismiss the original case upon the filing of the proper
information.(12a)

The Sandiganbayan therefore erred in not ordering the filing of the proper
information against the petitioner, and in convicting him of technical malversation in
the original case for malversation of public funds.

Ordinarily, the Court's recourse would be to acquit the petitioner of the crime of
illegal use of public funds without prejudice, but subject to the laws on prescription,
to the filing of a new information for such offense.

Considering however that all the evidence given during the trial in the malversation
case is the same evidence that will be presented and evaluated to determine his
guilt or innocence in the technical malversation case in the event that one is filed
and in order to spare the petitioner from the rigors and harshness compounded by
another trial, not to mention the unnecessary burden on our overloaded judicial
system, the Court deems it best to pass upon the issue of whether or not the
petitioner indeed is guilty of illegal use of public funds.

The petitioner alleged that the amount of P59,154.41, which was actually intended
for the concreting of the Barangay Jalung Road, was used to defray the labor
payrolls of the different barangays of the municipality of Porac and presented
documents fully supporting the disbursement. This allegation was not rebutted by
the prosecution.

The Sandiganbayan found him guilty of technical malversation.

However, Article 220 of the Revised Penal Code provides that for technical
malversation to exist it is necessary that public funds or properties had been
diverted to any public use other than that provided for by law or
ordinance. (Emphasis supplied. See Palma Gil v. People of the Philippines, 177
SCRA 229 [1989])

The testimony of the prosecution witness Armando Lacsamana, as summarized by

the Sandiganbayan, is as follows:

. . . The Province of Pampanga receives an annual CRBI (Construction,

Rehabilitation, Betterment and Improvement) fund. In 1980, Barangay
Jalung, Porac, was one of the recipients of the fund in the amount of
P185,250.00. CRBI funds are released to the provincial treasurer and
withdrawn by the municipal treasurer of the municipality where a
project is to be implemented. With regard to the CRBI fund for
Barangay Jalung, their office, through Engr. Anselmo Fajardo,
conferred with the barangay captain on what project the barangay
wanted to undertake. It was agreed that the fund be utilizied for
 concreting the barangay Jalung road. (TSN May 9, 1989, pp. 3-5). The
project to be implemented having been determined, their office
prepared a program of work (Exh. 1-10) which included the following
supporting documents:

1. Chart for an item of work (Exh. I-11);

2. Schedule of equipment (Exh. I-12)

3. Schedule of equipment and labor (Exhs. I-13, I-14, I-15);

4. Working schedule for laborers and technical men (Exh. I-16);

5. Schedule of materials (Exh. I-17);

6. Schedule of equipment (I-18);

7. Summary of the project (Exh. I-1 9). (TSN May 9, 1989, pp. 6-7).
(Rollo, pp. 38-39)

Lacsamana's testimony shows that the CRBI fund is a general fund, and the
utilization of this fund specifically for the concreting of the Barangay Jalung Road
was merely an internal arrangement between the Department of Public Works and
Highways and the barangay captain and was not particularly provided for by law or
ordinance. There is no dispute that the money was spent for a public purpose—
payment of the wages of laborers working on various projects in the municipality. It
is pertinent to note the high priority which laborers' wages enjoy as claims against
the employers' funds and resources. In the absence of a law or ordinance
appropriating the CRBI fund for the concreting of the Barangay Jalung Road, the
petitioner cannot be declared guilty of the crime of illegal use of public funds.

WHEREFORE, the petition is hereby GRANTED. The decision of the

Sandiganbayan is REVERSED. The petitioner is ACQUITTED of the crime of illegal
use of public funds.

SO ORDERED.

Fernan C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Gancayco, Padilla, Bidin,

Sarmiento, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
 THIRD DIVISION

G.R. No. 108811 May 31, 1994

APOLINARIO GONZALES, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, PEOPLE OF THE PHILIPPINES and
IMELDA CARATAO, respondents.

Teofilo C. Villarico for petitioner.

Sison Q. Jarapa for private respondent.

VITUG, J.:

This petition for review on certiorari assails the decision, dated

12 February 1993, of the Court of Appeals, sustaining the validity of the order, dated
15 June 1992, of the Regional Trial Court (Branch 9) of Malolos, Bulacan, which has
reconsidered and set aside its previous order of 30 March 1992 provisionally
dismissing criminal cases for multiple rape filed against petitioner.

The backdrop settings may be briefly recited; thus:

A criminal complaint for qualified seduction (of private complainant Imelda Caratao),
following a preliminary investigation, was filed (docketed Criminal Case No. 2560)
with the Municipal Trial Court of Obando, Bulacan, against herein petitioner
Apolinario Gonzales. The latter, upon arraignment, pleaded "not guilty" to the
charge. The presentation of evidence by the prosecution started in May 1983 and
was concluded in November 1988. Thereafter, the defense took its turn. When the
defense was about to rest its case, the prosecution filed a motion to instead commit
the accused to answer to a charge for rape since the evidence submitted indicated
that rape, not
qualified seduction, was evidently committed. Petitioner opposed the motion. On 17
January 1990, the trial court issued an order which, in part, read:

The evidence adduced in the prosecution of this case clearly and

manifestly show that the crime of Qualified Seduction as defined and
penalized under the provisions of Art. 337 of the Revised Penal Code
has not been proven. The crime of rape is an offense beyond the
jurisdiction of this Court.
 If there was a mistake in the charging of the proper offense against the
accused, thus the motion, to commit and detain him under the authority
of section 11 Rule 119 of the Rules of Court, the trying Court must
have jurisdiction to hear the original case and that of the subsequent
case to be filed against the accused.

The Court having no jurisdiction to institute nor try the offense of rape,
cannot, and will not, assume the jurisdiction of the Public Prosecutor,
for it is their prerogative to file necessary complaint or information
against any accused, jurisdiction of which falls exclusively with the
Regional Trial Court.

WHEREFORE, premises considered, there being no sufficient evidence to prove the

1
crime of Qualified Seduction as charged in the complaint, this case is hereby dismissed.

Following the dismissal of Criminal Case No. 2560, the prosecution filed six (6)
separate informations for rape, alleged to have been committed on 15, 16, 17, 18,
19 and 20 November 1982, before different branches of the Regional Trial Court
(RTC) of Malolos, Bulacan. These cases were later consolidated (docketed Criminal
Cases No. 1858-M-90 to No. 1864-M-90, inclusive).

When arraigned, Gonzales pleaded "not guilty" to the charges. In the hearing of 01
July 1991, the prosecution presented its first witness, a brother of private
complainant. On 23 March 1992, the private complainant and her counsel not having
appeared, the public prosecutor requested a postponement of the hearing. Petitioner
did not object to the postponement. On 30 March 1992, the public prosecutor again
requested that the hearing be postponed on the same ground. This time, the
defense objected and moved for the dismissal of the cases, claiming that the delay
would violate petitioner's right to a speedy trial. The trial court issued an order, which
read:

On motion to this effect of the defense counsel predicated on the

constitutional right of the accused to a speedy trial as viewed against
the repeated absences of the complaining witness despite due notice,
and without objection on the part of the Trial Prosecutor, the above-
entitled case is hereby DISMISSED PROVISIONALLY with the express
consent of the accused and with costs de oficio.

SO ORDERED. 2

On the very same day, private counsel for private complainant filed a motion for the
reconsideration of the court's order, alleging that they (the complainant and private
counsel) "were already within the Court premises but complainant was afraid to
enter the courtroom in the absence of (her) counsel who was then attending a
hearing before another branch of (the) Court." On
15 June 1992, the trial court, finding the motion for reconsideration to be impressed
with merit, issued an order lifting and setting aside the 30 March 1992 order of
dismissal.

A petition for certiorari was filed by Gonzales with the Court of Appeals. On 12
February 1993, respondent appellate court issued its questioned decision which
dismissed the petition and affirmed the trial court's order of
15 June 1992.

Hence, the instant petition.

We uphold the appealed decision.

Section 11, Rule 119 of the Revised Rules of Court provides:

Sec. 11. When mistake has been made in charging the proper offense.
— When it becomes manifest at any time before judgment, that a
mistake has been made in charging the proper offense, and the
accused cannot be convicted of the offense charged, or of any other
offense necessarily included therein, the accused shall not be
discharged, if there appears to be good cause to detain him. In such
case, the court shall commit the accused to answer for the proper
offense and dismiss the original case upon the filing of the proper
information.

The dismissal of the charge for qualified seduction is clearly sanctioned by the
above-quoted rule in order to pave the way for the filing of the proper offense for the
crime of rape. The accused cannot invoke double jeopardy; for that kind of jeopardy
to arise, the following requisites must be extant:

(1) The previous complaint or information or other formal charge is sufficient in form
and substance to sustain a conviction;

(2) The court has jurisdiction to try the case;

(3) The accused has been arraigned and has pleaded to the charge; and

(4) The accused is convicted or acquitted or the case is dismissed without his
express consent.

When all the above elements concur, a second prosecution for (a) the same offense,
or (b) an attempt to commit the said offense, or (c) a frustration of the said offense,
or (d) any offense which necessarily includes, or is necessarily included in, the first
offense charged, can be rightly barred.
Here, there is no question that the Municipal Trial Court did not have the requisite
jurisdiction to try the offense of rape, a crime that lies instead within the province of
the Regional Trial Court to take cognizance of. Moreover, the dismissal of Criminal
Case No. 2560 for qualified seduction by the Municipal Trial Court not only was
provisional but likewise with the express consent of the accused (herein petitioner).

Then, too, rape and qualified seduction are not identical offenses. The elements of
rape — (1) that the offender has had carnal knowledge of a woman; and (2) that
such act is accomplished (a) by using force or intimidation, or
(b) when the woman is deprived of reason or otherwise unconscious, or (c) when the
woman is under twelve (12) years of age — substantially differ from the elements of
qualified seduction. The letter requires (1) that the offended party is a virgin, which is
presumed if she is unmarried and of good reputation; (2) that she must be over
twelve (12) and under eighteen (18) years of age; (3) that the offender has sexual
intercourse with her; and (4) that there is abuse of authority, confidence or
relationship on the part of the offender. While the two felonies have one common
element, i.e., carnal knowledge of a woman, they significantly vary in all other
respects.

Contrary to the assertion of accused-petitioner, the case of People vs. Samillano (56
SCRA 573), did not hold that qualified seduction is necessarily included in rape;
what this Court has said is that one who is charged with rape may be found guilty of
qualified seduction when the "verified complaint for rape contains allegations which
aver the crime of seduction."

We recognize, and we have thus heretofore upheld, 3 an accused's right to speedy

trial; in this instance, however, we see no transgression thereof. The appellate court
itself has found, and later concluded, that "with only two (2) postponements in the
same month entailing an interval of just seven (7) days, the proceedings have not
been unreasonably delayed in violation of the right to speedy trial." Looking at the
records ourselves, we find no cogent reason to rule otherwise.

WHEREFORE, the appealed decision of respondent appellate court is AFFIRMED.

No special pronouncement on costs.

SO ORDERED.

Feliciano, Bidin, Romero and Melo, JJ., concur.

THIRD DIVISION
 [G.R. No. 116736. July 24, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENJAMIN

ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and JOHN
DOE, accused, BENJAMIN ORTEGA, JR. y CONJE and MANUEL
GARCIA y RIVERA, accused-appellants.

DECISION
PANGANIBAN, J.:

A person who commits a felony is liable for the direct, natural and logical
consequences of his wrongful act even where the resulting crime is more
serious than that intended. Hence, an accused who originally intended to
conceal and to bury what he thought was the lifeless body of the victim can be
held liable as a principal, not simply as an accessory, where it is proven that
the said victim was actually alive but subsequently died as a direct result of
such concealment and burial. Nonetheless, in the present case, Appellant
Garcia can not be held liable as a principal because the prosecution failed to
allege such death through drowning in the Information. Neither may said
appellant be held liable as an accessory due to his relationship with the
principal killer, Appellant Ortega, who is his brother-in-law.

Statement of the Case

This case springs from the joint appeal interposed by Appellants Benjamin
Ortega, Jr. and Manuel Garcia from the Decision, dated February 9, 1994
[1]

written by Judge Adriano R. Osorio, finding them guilty of murder.

[2]

Appellants were charged by State Prosecutor Bernardo S. Razon in an

Information dated October 19, 1992, as follows:
[3]

“That on or about October 17, 1992 in Valenzuela, Metro Manila, Philippines

and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring together and mutually helping one another, without any justifiable
cause, with treachery and evident premeditation and with abuse of superior
strenght (sic) and with deliberate intent to kill, did then and there willfully,
unlawfully and feloniously attack, assault and stab repeatedly with a pointed
weapon on the different parts of the body one ANDRE MAR MASANGKAY
y ABLOLA, thereby inflicting upon the latter serious physical injuries which
directly caused his death.”
 During arraignment, Appellants Ortega and Garcia, assisted by counsel de
oficio, pleaded not guilty to the charge. Accused “John Doe” was then at
[4] [5]

large. After trial in due course, the court a quo promulgated the questioned
[6]

Decision. The dispositive portion reads: [7]

“WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel

Garcia y Rivera [g]uilty beyond reasonable doubt of the crime charged, the
Court hereby sentenced (sic) them to suffer the penalty ofRECLUSION
PERPETUA and to pay the costs of suit.
Accused are hereby ordered to pay the offended party the sum of P35,000.00
for funeral expenses of deceased Andre Mar Masangkay and death indemnity
of P50,000.00.”
The Notice of Appeal, dated March 9, 1994, was thus filed by Atty.
Evaristo P. Velicaria who took over from the Public Attorney’s Office as
[8]

counsel for the accused.

The Facts
Evidence for the Prosecution

The trial court summarized the testimonies of the prosecution witnesses

as follows:[9]

“Diosdado Quitlong substantially testified that on October 15, 1992 at about

5:30 in the afternoon, he, the victim Andre Mar Masangkay, Ariel Caranto,
Romeo Ortega, Roberto San Andres were having a drinking spree in the
compound near the house of Benjamin Ortega, Jr. at Daangbakal, Dalandanan,
Valenzuela, Metro Manila. That while they were drinking, accused Benjamin
Ortega, Jr. and Manuel Garcia who were [already] drunk arrived and joined
them. That victim Andre Mar Masangkay answered the call of nature and
went to the back portion of the house. That accused Benjamin Ortega, Jr.
followed him and later they [referring to the participants in the drinking
session] heard the victim Andre Mar shouted, ‘Don’t, help me!’ (Huwag,
tulungan ninyo ako!) That he and Ariel Caranto ran towards the back portion
of the house and [they] saw accused Benjamin Ortega, Jr., on top of Andre
Mar Masangkay who was lying down in a canal with his face up and stabbing
the latter with a long bladed weapon. That Ariel Caranto ran and fetched
Benjamin Ortega, Sr., the father of accused Benjamin, Jr. That he [Quitlong]
went to Romeo Ortega in the place where they were having the drinking
session [for the latter] to pacify his brother Benjamin, Jr. That Romeo Ortega
went to the place of the stabbing and together with Benjamin Ortega, Jr. and
Manuel Garcia lifted Andre Mar Masangkay from the canal and brought
Andre Mar to the well and dropped the latter inside the well. That Romeo
Ortega, Benjamin Ortega, Jr. and Manuel Garcia then dropped stones
measuring 11 to 12 inches high, 2 feet in length and 11 to 12 inches in weight
to the body of Andre Mar Masangkay inside the well. That Romeo Ortega
warned him [Quitlong] not to tell anybody of what he saw. That he answered
in the affirmative and he was allowed to go home. That his house is about 200
meters from Romeo Ortega’s house. That upon reaching home, his conscience
bothered him and he told his mother what he witnessed. That he went to the
residence of Col. Leonardo Orig and reported the matter. That Col. Orig
accompanied him to the Valenzuela Police Station and some police officers
went with them to the crime scene. That accused Benjamin Ortega, Jr. and
Manuel Garcia were apprehended and were brought to the police station.
On cross-examination, he said that he did not talk to the lawyer before he was
presented as witness in this case. That he narrated the incident to his mother
on the night he witnessed the killing on October 15, 1992. That on October
15, 1992 at 5:30 in the afternoon when he arrived, victim Andre Mar
Masangkay, Romeo Ortega, Serafin and one Boyet were already having [a]
drinking spree and he joined them. That accused Benjamin Ortega, Jr. and
Manuel Garcia were not yet in the place. That the stabbing happened between
12:00 midnight and 12:30 a.m. That they drank gin with finger foods such as
pork and shell fish. That he met the victim Andre Mar Masangkay only on that
occasion. That accused Benjamin Ortega, Jr. and Manuel Garcia joined them
at about 11:00 p.m. That there was no altercation between Benjamin Ortega,
Jr. and Manuel Garcia in one hand and Andre Mar Masangkay, during the
drinking session. That at about 12:30 a.m. Andre Mar Masangkay answered
the call of nature and went to the back portion of the house. That he cannot
see Andre Mar Masangkay from the place they were having the drinking
session. That he did not see what happened to Andre Mar Masangkay. That
he only heard Masangkay asking for help. That accused Manuel Garcia was
still in the drinking session when he heard Masangkay was asking for
help. That Benjamin Ortega, Jr. and Manuel Garcia are his friends and
neighbors. That when he heard Andre Mar Masangkay was asking for help,
he and Ariel Caranto ran to the back portion of the house and saw Benjamin
Ortega, Jr. on top of Andre Mar Masangkay and stabbing the latter. That
Andre Mar Masangkay was lying down with his back in the canal and
Benjamin Ortega, Jr. on top stabbing the former. That he did not see any
injuries on Benjamin Ortega, Jr. That he called Romeo Ortega to pacify his
brother Benjamin, Jr. That he did not do anything to separate Benjamin
Ortega, Jr. and Masangkay. That he knows that Andre Mar Masangkay was
courting Raquel Ortega. That Raquel Ortega asked permission from Andre
Mar Masangkay when she left between 8:00 and 9:00 p.m. That there was no
trouble that occurred during the drinking session.
PNP Superintendent Leonardo Orig substantially testified that Diosdado
Quitlong is his neighbor for about 9 years. That on October 16, 1992 at 5:00
in the morning, he was summoned by Diosdado Quitlong and reported to him
the stabbing incident that occurred at Daangbakal near the subdivision he is
living. That he relayed the information to the Valenzuela Police Station and a
police team under police officer Param accompanied them to the place. That
he asked the police officers to verify if there is a body of person inside the
well. That the well was covered with stones and he asked the police officers
to seek the help of theneighbors (sic) to remove the stones inside the
well. That after the stones were removed, the body of the victim was found
inside the well. That the lifeless body was pulled out from the well. That the
body has several stab wounds. That he came to know the victim as Andre Mar
Masangkay. That two men were arrested by the police officers.
On cross-examination, he said that he saw the body when taken out of the well
with several stab wounds. That Diosdado Quitlong told him that he was
drinking with the victim and the assailants at the time of the incident. That
Benjamin Ortega, Jr. stabbed the victim while the latter was answering the call
of nature.
NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that he
conducted [an] autopsy on the cadaver of Andre Mar Masangkay on October
16, 1992 at the Valenzuela Memorial Homes located at Macarthur
Highway. That he prepared the autopsy report and the sketch of human head
and body indicating the location of the stab wounds. That the cause of death is
multiple stab wounds, contributory, [a]sphyxia by submersion in water. That
there were 13 stab wounds, 8 of which were on the frontal part of the body, 2
at the back and there were contused abrasions around the neck and on the left
arm. There was stab wound at the left side of the neck. That the contused
abrasion could be produced by cord or wire or rope. That there is (an) incised
wound on the left forearm. That the stab wounds which were backward
downward of the body involved the lungs. That the victim was in front of the
assailant. That the stab wound on the upper left shoulder was caused when the
assailant was in front of the victim. That the assailant was in front of the
victim when the stab wound near the upper left armpit was inflicted as well as
the stab wound on the left chest wall. That the stab wound on the back left
side of the body and the stab wound on the back right portion of the body may
be produced when the assailant was at the back of the victim. That the
assailant was in front of the victim when the stab wound[s] on the left elbow
and left arm were inflicted. That the large airway is filled with muddy
 particles indicating that the victim was alive when the victim inhaled the
muddy particles. The heart is filled with multiple hemorrhage, loss of blood
or decreased of blood. The lungs is filled with water or muddy particles. The
brain is pale due to loss of blood. The stomach is one half filled with muddy
particles which could [have been] taken in when submerged in water.
On cross-examination, he said that he found 13 stab wounds on the body of
the victim. That he cannot tell if the assailant or the victim were
standing. That it is possible that the stab wounds was (sic) inflicted when both
[referring to participants] were standing or the victim was lying down and the
assailant was on top. That he cannot tell the number of the assailants.”

Evidence for the Appellants

Appellant Manuel Garcia testified that in the early morning of October 15,
1992, he and his wife, Maritess Garcia, brought their feverish daughter,
Marjorie, to the Polo Emergency Hospital. He left the hospital at seven o’
clock in the morning, went home, changed his clothes and went to
work. After office hours, he and Benjamin Ortega, Jr. passed by the canteen
[10]

at their place of work. After drinking beer, they left at eight o’ clock in the
evening and headed home. En route, they chanced on Diosdado Quitlong
alias Mac-mac and Andre Mar Masangkay, who invited them to join their own
drinking spree. Thereupon, Appellant Garcia’s wife came and asked him to
go home because their daughter was still sick. To alleviate his daughter’s
illness, he fetched his mother-in-law who performed a ritual called
“tawas.” After the ritual, he remained at home and attended to his sick
daughter. He then fell asleep but was awakened by police officers at six o’
clock in the morning of the following day.
Maritess Garcia substantially corroborated the testimony of her
husband. She however added two other participants in the drinking session
aside from Diosdado Quitlong alias Mac-mac and Andre Mar Masangkay,
namely, a Mang Serafin and Boyet Santos. [11]

Benjamin Ortega, Jr. likewise substantially corroborated the testimony of

Appellant Manuel Garcia. According to him, between eleven and twelve o’
[12]

clock in the evening, Masangkay left the drinking session. Thirty (30) minutes
after Masangkay left, he also left the drinking place to urinate. He went [13]

behind the house where he saw Masangkay peeping through the room of his
sister Raquel. He ignored Masangkay and continued urinating. After he was
[14]

through, Masangkay approached him and asked where his sister was. He
answered that he did not know. Without warning, Masangkay allegedly boxed
him in the mouth, an attack that induced bleeding and caused him to fall on
his back. When he was about to stand up, Masangkay drew a knife and
stabbed him, hitting him on the left arm, thereby immobilizing
him. Masangkay then gripped his neck with his left arm and threatened to kill
him. Unable to move, Ortega shouted for help. Quitlong came and, to avoid
being stabbed, grabbed Masangkay’s right hand which was holding the
knife. Quitlong was able to wrest the knife from Masangkay and, with it, he
stabbed Masangkay ten (10) times successively, in the left chest and in the
middle of the stomach. When the stabbing started, Ortega moved to the left
side of Masangkay to avoid being hit. Quitlong chased Masangkay who ran
[15]

towards the direction of the well. Thereafter, Ortega went home and treated
his injured left armpit and lips. Then, he slept.
When he woke up at six o’ clock the following morning, he saw police
officers in front of his house. Taking him with them, the lawmen proceeded to
the well. From the railroad tracks where he was asked to sit, he saw the
police officers lift the body of a dead person from the well. He came to know
the identity of the dead person only after the body was taken to the police
headquarters. [16]

The Trial Court’s Discussion

The trial court explained its basis for appellants’ conviction as follows: [17]

“The Court is convinced that the concerted acts of accused Benjamin Ortega,
Jr., Manuel Garcia, Jr. and one Romeo Ortega in lifting, carrying and dumping
the victim Andre Mar Masangkay who was still alive and breathing inside the
deep well filled with water, head first and threw big stones/rocks inside the
well to cover the victim is a clear indication of the community of design to
finish/kill victim Andre Mar Masangkay. Wounded and unarmed victim
Andre Mar Masangkay was in no position to flee and/or defend himself
against the three malefactors. Conspiracy and the taking advantage of superior
strength were in attendance. The crime committed by the accused is Murder.
Concert of action at the moment of consummating the crime and the form and
manner in which assistance is rendered to the person inflicting the fatal wound
may determine complicity where it would not otherwise be evidence (People
vs. Yu, 80 SCRA 382 (1977)).
Every person criminally liable for a felony is also civilly liable. Accused
(m)ust reimburse the heirs of victim Andre Mar Masangkay the amount
of P35,000.00 for the funeral expenses of the deceased.”
 The Issues

In their ten-page brief, appellants fault the trial court with the following: [18]

“I. The trial court erred in holding that there is conspiracy on the basis
of the prosecution’s evidence that at the time both accused and one
Romeo Ortega lifted the body of Andrew Masangkay from where he
succumbed due to stab wounds and brought and drop said body of
Andrew Masangkay to the well to commit murder;
II. The trial court erred in finding and holding that Andrew
Masangkay was still alive at the time his body was dropped in the
well;
III. The trial court erred in convicting Manuel Garcia and in not
acquitting the latter of the crime charged; and
IV. The trial court erred in not finding that if at all Benjamin Ortega Jr.
is guilty only of homicide alone.”

On the basis of the records and the arguments raised by the appellants and the
People, we believe that the question to be resolved could be simplified thus: What are
the criminal liabilities, if any, of Appellants Ortega and Garcia?

The Court’s Ruling

We find the appeal partly meritorious. Appellant Ortega is guilty only of

homicide. Appellant Garcia deserves acquittal.

First Issue: Liability of Appellant Ortega

The witnesses for the prosecution and defense presented conflicting

narrations. The prosecution witnesses described the commission of the crime
and positively identified appellants as the perpetrators. The witnesses for the
defense, on the other hand, attempted to prove denial and alibi. As to which
of the two contending versions speaks the truth primarily rests on a critical
evaluation of the credibility of the witnesses and their stories. In this regard,
the trial court held: [19]

“The Court has listened intently to the narration of the accused and their
witnesses and the prosecution witnesses and has keenly observed their
 behavior and demeanor on the witness stand and is convinced that the story of
the prosecution is the more believable version. Prosecution eyewitness
Diosdado Quitlong appeared and sounded credible and his credibility is
reinforced by the fact that he has no reason to testify falsely against the
accused. It was Diosdado Quitlong who reported the stabbing incident to the
police authorities. If Quitlong stabbed and killed the victim Masangkay, he
will keep away from the police authorities and will go in hiding. x x x”
Because the trial court had the opportunity to observe the witnesses’
demeanor and deportment on the stand as they rendered their testimonies, its
evaluation of the credibility of witnesses is entitled to the highest
respect. Therefore, unless the trial judge plainly overlooked certain facts of
substance and value which, if considered, might affect the result of the case,
his assessment of credibility must be respected. [20]

In the instant case, we have meticulously scoured the records and found
no reason to reverse the trial court’s assessment of the credibility of the
witnesses and their testimonies insofar as Appellant Ortega is
[21]

concerned. The narration of Eyewitness Diosdado Quitlong appears to be

spontaneous and consistent. It is straightforward, detailed, vivid and
logical. Thus, it clearly deserves full credence.
On the other hand, in asserting alibi and denial, the defense bordered on
the unbelievable. Appellant Ortega claimed that after he was able to free
himself from Masangkay’s grip, he went home, treated his injuries and
slept. This is not the ordinary reaction of a person assaulted. If Ortega’s
[22]

version of the assault was true, he should have immediately reported the
matter to the police authorities, if only out of gratitude to Quitlong who came to
his rescue. Likewise, it is difficult to believe that a man would just sleep after
someone was stabbed in his own backyard. Further, we deem it incredible
that Diosdado Quitlong would stab Masangkay ten (10) times successively,
completely ignoring Benjamin Ortega, Jr. who was grappling with
Masangkay. Also inconsistent with human experience is his narration that
Masangkay persisted in choking him instead of defending himself from the
alleged successive stabbing of Quitlong. The natural tendency of a person
[23]

under attack is to defend himself and not to persist in choking a defenseless

third person.

Murder or Homicide?
 Although treachery, evident premeditation and abuse of superior strength
were alleged in the information, the trial court found the presence only of
abuse of superior strength.
We disagree with the trial court’s finding. Abuse of superior strength
requires deliberate intent on the part of the accused to take advantage of such
superiority. It must be shown that the accused purposely used excessive
force that was manifestly out of proportion to the means available to the
victim’s defense. In this light, it is necessary to evaluate not only the physical
[24]

condition and weapon of the protagonists but also the various incidents of the
event. [25]

In his testimony, Witness Dominador Quitlong mentioned nothing about

Appellant Ortega’s availment of force excessively out of proportion to the
means of defense available to the victim to defend himself. Quitlong
described the assault made by Appellant Ortega as follows: [26]

“ATTY. ALTUNA:
Q Will you please tell me the place and date wherein you have a drinking spree with
Andrew Masangkay and where you witnessed a stabbing incident?
A It was on October 15, 1992, sir, at about 5:30 in the afternoon we were drinking in
the house of Mr. Benjamin Ortega, Sr., because the house of Benjamin Ortega Sr.
and the house of his son Benjamin Ortega, Jr. are near each other.

xxx xxx xxx

Q Mr. Witness, who were the companions of said persons, Benjamin Ortega, Jr.,
Manuel Garcia, you (sic) in drinking in said place?
A The other companions in the drinking session were Ariel Caranto y Ducay,
Roberto San Andres and Romeo Ortega.
Q What about this victim, Andrew Masangkay, where was he at that time?
A Also the victim, Andrew Masangkay, he was also there.
Q You said that the two accused, Manuel Garcia and Benjamin Ortega, Jr. arrived
drunk and joined the group?
A Yes, sir.
Q What happened next?
A While we were there together and we were drinking ... (interrupted by Atty. Altuna)
Q Who is that ‘we’?
A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto, Romeo Ortega,
Roberto San Andres, myself and Andrew Masangkay. Andrew Masangkay answer
to a call of nature and went to the back portion of the house, and Benjamin
Ortega, Jr. followed him where he was.
Q What happened next?
 A And afterwards we heard a shout and the shout said ‘Huwag, tulungan n’yo ako’.
Q From whom did you hear this utterance?
A The shout came from Andrew Masangkay.
Q After Benjamin Ortega, Jr. followed Andrew Masangkay to answer a call of nature
and after you heard ‘huwag, tulungan n’yo ako’ coming from the mouth of the late
Andrew Masangkay, what happened next?
A Ariel Caranto and I ran towards the back portion of the house.
Q And what did you see?
A And I saw that Benjamin Ortega, Jr. was on top of Andrew Masangkay and he was
stabbing Andrew Masangkay.
Q Will you please demonstrate to the Honorable Court how the stabbing was done
telling us the particular position of the late Andrew Masangkay and how Benjamin
Ortega, Jr proceeded with the stabbing against the late victim, Andrew
Masangkay?
INTERPRETER:
(At this juncture, the witness demonstrating.)
Andrew Masangkay was lying down on a canal with his face up, then Benjamin Ortega,
Jr. was ‘nakakabayo’ and with his right hand with closed fist holding the weapon,
he was thrusting this weapon on the body of the victim, he was making downward
and upward motion thrust.
ATTY. ALTUNA: (To the witness)
Q How many times did Benjamin Ortega, Jr. stabbed Andrew Masangkay?
A I cannot count the number of times.”

It should be noted that Victim Masangkay was a six-footer, whereas

Appellant Ortega, Jr. was only five feet and five inches tall. There was no
[27]

testimony as to how the attack was initiated. The accused and the victim were
already grappling when Quitlong arrived. Nothing in the foregoing testimony
and circumstances can be interpreted as abuse of superior strength. Hence,
Ortega is liable only for homicide, not murder.

Second Issue: Liability of Appellant Manuel Garcia

Appellants argue that the finding of conspiracy by the trial court “is based
on mere assumption and conjecture x x x.” Allegedly, the medico-legal
[28]

finding that the large airway was “filled with muddy particles indicating that the
victim was alive when the victim inhaled the muddy particles” did not
necessarily mean that such muddy particles entered the body of the victim
while he was still alive. The Sinumpaang Salaysay of Quitlong stated,
“Nilubayan lang nang saksak nang mapatay na si Andrew ni Benjamin Ortega,
Jr.” Thus, the prosecution evidence shows Masangkay was already “dead”
when he was lifted and dumped into the well. Hence, Garcia could be held
liable only as an accessory. [29]

We do not agree with the above contention. Article 4, par. 1, of the

Revised Penal Code states that criminal liability shall be incurred by “any
person committing a felony (delito) although the wrongful act done be different
from that which he intended.” The essential requisites for the application of
this provision are that (a) the intended act is felonious; (b) the resulting act is
likewise a felony; and (c) the unintended albeit graver wrong was primarily
caused by the actor’s wrongful acts. In assisting Appellant Ortega, Jr. carry
the body of Masangkay to the well, Appellant Garcia was committing a
felony. The offense was that of concealing the body of the crime to prevent its
discovery, i.e. that of being an accessory in the crime of homicide. Although [30]

Appellant Garcia may have been unaware that the victim was still alive when
he assisted Ortega in throwing the body into the well, he is still liable for the
direct and natural consequence of his felonious act, even if the resulting
offense is worse than that intended.
True, Appellant Garcia merely assisted in concealing the body of the
victim. But the autopsy conducted by the NBI medico-legal officer showed
that the victim at that time was still alive, and that he died subsequently of
drowning. That drowning was the immediate cause of death was medically
[31]

demonstrated by the muddy particles found in the victim’s airway, lungs and
stomach. This is evident from the expert testimony given by the medico-legal
[32]

officer, quoted below: [33]

ATTY. ALTUNA:
“Q Will you please explain this in simple language the last portion of Exhibit N,
beginning with ‘tracheo-bronchial tree’, that is sentence immediately after
paragraph 10, 2.5 cms. Will you please explain this?
A The trancheo-bronchial tree is filled with muddy particles.
Q I ask you a question on this. Could the victim have possibly get this particular
material?
A No, sir.
Q What do you mean by no?
A A person should be alive so that the muddy particles could be inhaled.
Q So, in short, you are telling or saying to us that if there is no inhaling or the taking
or receiving of muddy particles at that time, the person is still alive?
A Yes, sir.
Q Second point?
A The heart is pale with some multiple petechial hemorrhages at the anterior
surface.
Q And this may [be] due to stab wounds or asphyxia?
A These are the effects or due to asphyxia or decreased amount of blood going to
the heart.
Q This asphyxia are you referring to is the drowning?
A Yes, sir.
Q Next point is the lungs?
A The lungs is also filled with multiple petechial hemorrhages.
Q What could have caused this injury of the lungs?
A This is due to asphyxia or the loss of blood.
Q Are you saying that the lungs have been filled with water or muddy particles?
A Yes, sir.
Q And, precisely, you are now testifying that due to stab wounds or asphyxia, the
lungs have been damaged per your Report?
A Yes, sir.
Q Continuing this brain and other visceral organs, pale. What is this?
A The paleness of the brain and other visceral organs is due to loss of blood.
Q And, of course, loss of blood could be attributed to the stab wound which is
number 13?
A Yes, sir.
Q And the last one, under the particular point ‘hemothorax’?
A It indicates at the right side. There are around 1,400 cc of blood that accumulate
at the thoraxic cavity and this was admixed with granular materials?
Q And what cause the admixing with granular materials on said particular portion of
the body?
A Could be muddy particles.
Q Due to the taking of maddy (sic) materials as affected by asphyxia? Am I correct?
A It’s due to stab wounds those muddy particles which set-in thru the stab wounds.
Q So, because of the opening of the stab wounds, the muddy particles now came in,
in that particular portion of the body and caused admixing of granular materials?
A Yes, sir.
Q Continuing with your report, particularly, the last two portions, will you please
explain the same?
 A The hemoperitoneum there are 900 cc of blood that accumulated inside the
abdomen.
Q And what could have cause the same?
A [T]he stab wound of the abdomen.
Q The last one, stomach 1/2 filled with muddy particles. Please explain the same?
A The victim could have taken these when he was submerged in water.
Q What is the take in?
A Muddy particles.
Q And he was still alive at that time?
A Yes, sir.” (Underscoring supplied)

A Filipino authority on forensic medicine opines that any of the following

medical findings may show that drowning is the cause of death: [34]

“1. The presence of materials or foreign bodies in the hands of the

victim. The clenching of the hands is a manifestation
of cadaveric spasm in the effort of the victim to save himself from
drowning.
2. Increase in volume (emphysema aquosum) and edema of the lungs
(edema aquosum).
3. Presence of water and fluid in the stomach contents corresponding
to the medium where the body was recovered.
4. Presence of froth, foam or foreign bodies in the air passage found in
the medium where the victim was found.
5. Presence of water in the middle ear.”
The third and fourth findings were present in the case of Victim Masangkay. It
was proven that his airpassage, or specifically his tracheo-bronchial tree, was
filled with muddy particles which were residues at the bottom of the
well. Even his stomach was half-filled with such muddy particles. The
unrebutted testimony of the medico-legal officer that all these muddy particles
were ingested when the victim was still alive proved that the victim died of
drowning inside the well.
The drowning was the direct, natural and logical consequence of the
felony that Appellant Garcia had intended to commit; it exemplifies praeter
intentionem covered by Article 4, par. 1, of the Revised Penal Code. Under
this paragraph, a person may be convicted of homicide although he had no
original intent to kill.
[35]
 In spite of the evidence showing that Appellant Garcia could be held liable
as principal in the crime of homicide, there are, however, two legal obstacles
barring his conviction, even as an accessory – as prayed for by appellants’
counsel himself.
First. The Information accused Appellant Garcia (and Appellant Ortega) of
“attack[ing], assault[ing], and stab[bing] repeatedly with a pointed weapon on
the different parts of the body one ANDRE MAR MASANGKAY y
ABLOLA” The prosecution’s evidence itself shows that Garcia had nothing to
do with the stabbing which was solely perpetrated by Appellant Ortega. His
responsibility relates only to the attempted concealment of the crime and the
resulting drowning of Victim Masangkay. The hornbook doctrine in our
jurisdiction is that an accused cannot be convicted of an offense, unless it is
clearly charged in the complaint or information. Constitutionally, he has a
right to be informed of the nature and cause of the accusation against him. To
convict him of an offense other than that charged in the complaint or
information would be a violation of this constitutional right. Section 14, par. 2,
[36]

of the 1987 Constitution explicitly guarantees the following:

“(2) In all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved, and shall enjoy the right to be heard by himself
and counsel, to be informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet the witnesses face to
face, and to have compulsory process to secure the attendance of witnesses
and the production of evidence in his behalf. However, after arraignment, trial
may proceed notwithstanding the absence of the accused provided that he has
been duly notified and his failure to appear is unjustifiable.” (Underscoring
supplied)
In People vs. Pailano, this Court ruled that there can be no conviction for
[37]

rape on a woman “deprived of reason or otherwise unconscious” where the

information charged the accused of sexual assault “by using force or
intimidation,” thus:
“The criminal complaint in this case alleged the commission of the crime
through the first method although the prosecution sought to establish at the
trial that the complainant was a mental retardate. Its purpose in doing so is not
clear. But whatever it was, it has not succeeded.
If the prosecution was seeking to convict the accused-appellant on the ground
that he violated Anita while she was deprived of reason or unconscious, such
conviction could not have been possible under the criminal complaint as
worded. This described the offense as having been committed by ‘Antonio
Pailano, being then provided with a scythe, by means of violence and
 intimidation, (who) did, then and there, wilfully, unlawfully and feloniously
have carnal knowledge of the complainant, Anita Ibañez, 15 years of age,
against her will.’ No mention was made of the second circumstance.
Conviction of the accused-appellant on the finding that he had raped Anita
while she was unconscious or otherwise deprived of reason -- and not through
force and intimidation, which was the method alleged -- would have violated
his right to be informed of the nature and cause of the accusation against
him.[Article IV, Sec. 19, Constitution of 1973; now Article III, Sec.
14(2)] This right is safeguarded by the Constitution to every accused so he
can prepare an adequate defense against the charge against him. Convicting
him of a ground not alleged while he is concentrating his defense against the
ground alleged would plainly be unfair and underhanded. This right was, of
course, available to the herein accused-appellant.
In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person charged with
rape could not be found guilty of qualified seduction, which had not been
alleged in the criminal complaint against him. In the case of People vs.
Montes, [fn: 122 SCRA 409] the Court did not permit the conviction for
homicide of a person held responsible for the suicide of the woman he was
supposed to have raped, as the crime he was accused of -- and acquitted -- was
not homicide but rape. More to the point is Tubb v. People of the Philippines,
[fn: 101 Phil. 114] where the accused was charged with the misappropriation
of funds held by him in trust with the obligation to return the same under
Article 315, paragraph 1(b) of the Revised Penal Code, but was convicted of
swindling by means of false pretenses, under paragraph 2(b) of the said
Article, which was not alleged in the information. The Court said such
conviction would violate the Bill of Rights.”
By parity of reasoning, Appellant Garcia cannot be convicted of homicide
through drowning in an information that charges murder by means of
stabbing.
Second. Although the prosecution was able to prove that Appellant Garcia
assisted in “concealing x x x the body of the crime, x x x in order to prevent its
discovery,” he can neither be convicted as an accessory after the fact defined
under Article 19, par. 2, of the Revised Penal Code. The records show that
Appellant Garcia is a brother-in-law of Appellant Ortega, the latter’s sister,
[38]

Maritess, being his wife. Such relationship exempts Appellant Garcia from
[39]

criminal liability as provided by Article 20 of the Revised Penal Code:

“ART. 20. Accessories who are exempt from criminal liability. -- The
penalties prescribed for accessories shall not be imposed upon those who are
such with respect to their spouses, ascendants, descendants, legitimate, natural,
 and adopted brothers and sisters, or relatives by affinity within the same
degrees with the single exception of accessories falling within the provisions
of paragraph 1 of the next preceding article.”
On the other hand, “the next preceding article” provides:
“ART. 19. Accessories. – Accessories are those who, having knowledge of
the commission of the crime, and without having participated therein, either as
principals or accomplices, take part subsequent to its commission in any of the
following manners:
1. By profiting themselves or assisting the offender to profit by the
effects of the crime.
2. By concealing or destroying the body of the crime, or the effects
or instruments thereof, in order to prevent its discovery.
3. By harboring, concealing, or assisting in the escape of the
principal of the crime, provided the accessory acts with abuse of
his public functions or whenever the author of the crime is
guilty of treason, parricide, murder, or an attempt to take the life
of the Chief Executive, or is known to be habitually guilty of
some other crime.”
Appellant Garcia, being a covered relative by affinity of the principal
accused, Benjamin Ortega, Jr., is legally entitled to the aforequoted exempting
provision of the Revised Penal Code. This Court is thus mandated by law to
acquit him.

Penalty and Damages

The award of actual damages should be reduced to P31,790.00

from P35,000.00. The former amount was proven both by documentary
evidence and by the testimony of Melba Lozano, a sister of the victim. Of the [40]

expenses alleged to have been incurred, the Court can give credence only to
those that are supported by receipts and appear to have been genuinely
incurred in connection with the death of the victim. However, in line with
[41]

current jurisprudence, Appellant Ortega shall also indemnify the heirs of the
[42]

deceased in the sum of P50,000.00. Indemnity requires no proof other than

the fact of death and appellant’s responsibility therefor. [43]

The penalty for homicide is reclusion temporal under Article 249 of the
Revised Penal Code, which is imposable in its medium period, absent any
aggravating or mitigating circumstance, as in the case of Appellant
Ortega. Because he is entitled to the benefits of the Indeterminate Sentence
Law, the minimum term shall be one degree lower, that is, prision mayor.
WHEREFORE, premises considered, the joint appeal
is PARTLY GRANTED. Appellant Benjamin Ortega, Jr. is found GUILTY of
homicide and sentenced to ten (10) years of prision mayor medium, as
minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal medium, as maximum. Appellant Ortega, Jr. is also ORDERED to
pay the heirs of the victim P50,000.00 as indemnity and P31,790.00 as actual
damages. Appellant Manuel Garcia is ACQUITTED. His immediate release
from confinement is ORDERED unless he is detained for some other valid
cause.
SO ORDERED.
Narvasa C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.