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Republic of the Philippines

Supreme Court
Manila
FIRST DIVISION

PEOPLE OF THE PHILIPPINES,Plaintiff-Appellee,


- versus -
ORLITO VILLACORTA, Accused-Appellant.
G.R. No. 186412
x--------------------------------------------------x
DECISION

LEONARDO-DE CASTRO, J.:

On appeal is the Decision[1] dated July 30, 2008 of the Court of Appeals in CA-G.R. CR.-H.C. No. 02550, which affirmed the Decision[2] dated
September 22, 2006 of the Regional Trial Court (RTC), Branch 170, of Malabon, in Criminal Case No. 27039-MN, finding accused-appellant Orlito
Villacorta (Villacorta) guilty of murder, and sentencing him to suffer the penalty of reclusion perpetua and to pay the heirs of Danilo Cruz (Cruz) the
sum of P50,000.00 as civil indemnity, plus the costs of suit.

On June 21, 2002, an Information[3] was filed against Villacorta charging him with the crime of murder, as follows:

That on or about 23rd day of January 2002, in Navotas, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named
accused, armed with a sharpened bamboo stick, with intent to kill, treachery and evident premeditation, did then and there willfully, unlawfully
and feloniously attack, assault and stab with the said weapon one DANILO SALVADOR CRUZ, thereby inflicting upon the victim serious wounds
which caused his immediate death.

When arraigned on September 9, 2002, Villacorta pleaded not guilty.[4]

During trial, the prosecution presented as witnesses Cristina Mendeja (Mendeja) and Dr. Domingo Belandres, Jr. (Dr. Belandres).

Mendeja narrated that on January 23, 2002, she was tending her sari-sari store located at C-4 Road, Bagumbayan, Navotas. Both Cruz and
Villacorta were regular customers at Mendejas store. At around two oclock in the morning, while Cruz was ordering bread at Mendejas store,
Villacorta suddenly appeared and, without uttering a word, stabbed Cruz on the left side of Cruzs body using a sharpened bamboo stick. The
bamboo stick broke and was left in Cruzs body. Immediately after the stabbing incident, Villacorta fled. Mendeja gave chase but failed to catch
Villacorta. When Mendeja returned to her store, she saw her neighbor Aron removing the broken bamboo stick from Cruzs body.[5] Mendeja and
Aron then brought Cruz to Tondo Medical Center.[6]

Dr. Belandres was Head of the Tetanus Department at the San Lazaro Hospital. When Cruz sustained the stab wound on January 23, 2002, he was
taken to the Tondo Medical Center, where he was treated as an out-patient. Cruz was only brought to the San Lazaro Hospital on February 14,
2002, where he died the following day, on February 15, 2002. While admitting that he did not personally treat Cruz, Dr. Belandres was able to
determine, using Cruzs medical chart and diagnosis, that Cruz died of tetanus infection secondary to stab wound.[7] Dr. Belandres specifically
described the cause of Cruzs death in the following manner:

The wound was exposed x x spurs concerted, the patient developed difficulty of opening the mouth, spastivity of the body and abdominal pain and
the cause of death is hypoxic encephalopathy neuro transmitted due to upper G.I. bleeding x x x. Diagnosed of Tetanus, Stage III.[8]

The prosecution also intended to present Dr. Deverni Matias (Dr. Matias), who attended to Cruz at the San Lazaro Hospital, but the prosecution and
defense agreed to dispense with Dr. Matias testimony based on the stipulation that it would only corroborate Dr. Belandres testimony on Cruz
dying of tetanus.

For its part, the defense presented Villacorta himself, who denied stabbing Cruz. Villacorta recounted that he was on his way home from work at
around two oclock in the morning of January 21, 2002. Upon arriving home, Villacorta drank coffee then went outside to buy cigarettes at a nearby
store. When Villacorta was about to leave the store, Cruz put his arm around Villacortas shoulder. This prompted Villacorta to box Cruz, after
which, Villacorta went home. Villacorta did not notice that Cruz got hurt. Villacorta only found out about Cruzs death upon his arrest on July 31,
2002.[9]

On September 22, 2006, the RTC rendered a Decision finding Villacorta guilty of murder, qualified by treachery. The dispositive portion of said
Decision reads:

WHEREFORE, in the light of the foregoing, the Court finds accused Orlito Villacorta guilty beyond reasonable doubt of the crime of Murder and is
hereby sentenced to suffer the penalty of reclusion perpetua and to pay the heirs of Danilo Cruz the sum of P50,000.00 as civil indemnity for the
death of said victim plus the costs of suit.[10]

Villacorta, through his counsel from the Public Attorneys Office (PAO), filed a notice of appeal to assail his conviction by the RTC.[11] The Court of
Appeals directed the PAO to file Villacortas brief, within thirty days from receipt of notice.

Villacorta filed his Appellants Brief[12] on May 30, 2007; while the People, through the Office of the Solicitor General (OSG), filed its Appellee's
Brief[13] on October 2, 2007.

On July 30, 2008, the Court of Appeals promulgated its Decision affirming in toto the RTC judgment of conviction against Villacorta.

Hence, Villacorta comes before this Court via the instant appeal.

Villacorta manifested that he would no longer file a supplemental brief, as he was adopting the Appellant's Brief he filed before the Court of
Appeals.[14] The OSG, likewise, manifested that it was no longer filing a supplemental brief. [15]

In his Appellants Brief, Villacorta raised the following assignment of errors:


I

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE CRIME CHARGED DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY.

III

ASSUMING ARGUENDO THAT THE ACCUSED COMMITTED A CRIME, HE COULD ONLY BE HELD LIABLE FOR SLIGHT PHYSICAL INJURIES.[16]

Villacorta assails the credibility of Mendeja, an eyewitness to the stabbing incident. It was Mendeja who positively identified Villacorta as the one
who stabbed Cruz in the early morning of January 23, 2002. Villacorta asserts that Mendejas account of the stabbing incident is replete with
inconsistencies and incredulities, and is contrary to normal human experience, such as: (1) instead of shouting or calling for help when Villacorta
allegedly stabbed Cruz, Mendeja attempted to run after and catch Villacorta; (2) while, by Mendejas own account, there were other people who
witnessed the stabbing and could have chased after Villacorta, yet, oddly, only Mendeja did; (3) if Cruz was stabbed so swiftly and suddenly as
Mendeja described, then it would have been physically improbable for Mendeja to have vividly recognized the perpetrator, who immediately ran
away after the stabbing; (4) after the stabbing, both Villacorta and Cruz ran in opposite directions; and (5) Mendeja had said that the bamboo stick,
the alleged murder weapon, was left at her store, although she had also stated that the said bamboo stick was left embedded in Cruzs body.
Villacorta maintains that the aforementioned inconsistencies are neither trivial nor inconsequential, and should engender some doubt as to his
guilt.

We are not persuaded.

To begin with, it is fundamental that the determination by the trial court of the credibility of witnesses, when affirmed by the appellate court, is
accorded full weight and credit as well as great respect, if not conclusive effect. Such determination made by the trial court proceeds from its first-
hand opportunity to observe the demeanor of the witnesses, their conduct and attitude under grilling examination, thereby placing the trial court
in the unique position to assess the witnesses' credibility and to appreciate their truthfulness, honesty and candor.[17]

In this case, both the RTC and the Court of Appeals gave full faith and credence to the testimony of prosecution witness Mendeja. The Court of
Appeals rejected Villacortas attempts to impugn Mendejas testimony, thus:

Appellants reason for concluding that witness Mendejas testimony is incredible because she did not shout or call for help and instead run after the
appellant, fails to impress the Court because persons who witness crimes react in different ways.

x x x the makings of a human mind are unpredictable; people react differently and there is no standard form of behavior when one is confronted by
a shocking incident.

Equally lacking in merit is appellants second reason which is, other persons could have run after the appellant after the stabbing incident. As
explained by witness Mendeja, the other person whom she identified as Aron was left to assist the appellant who was wounded. Further, the
stabbing occurred at 2:00 oclock in the morning, a time when persons are expected to be asleep in their house, not roaming the streets.

His [Villacortas] other argument that the swiftness of the stabbing incident rendered impossible or incredible the identification of the assailant
cannot likewise prosper in view of his admission that he was in the store of witness Mendeja on January 23, 2002 at 2:00 oclock in the morning and
that he assaulted the victim by boxing him.

Even if his admission is disregarded still the evidence of record cannot support appellants argument. Appellant and the victim were known to
witness Mendeja, both being her friends and regular customers. There was light in front of the store. An opening in the store measuring 1 and
meters enables the person inside to see persons outside, particularly those buying articles from the store. The victim was in front of the store
buying bread when attacked. Further, immediately after the stabbing, witness Mendeja ran after the appellant giving her additional opportunity to
identify the malefactor. Thus, authorship of the attack can be credibly ascertained.[18]

Moreover, Villacorta was unable to present any reason or motivation for Mendeja to fabricate such a lie and falsely accuse Villacorta of stabbing
Cruz on January 23, 2002. We have ruled time and again that where the prosecution eyewitness was familiar with both the victim and accused, and
where the locus criminis afforded good visibility, and where no improper motive can be attributed to the witness for testifying against the accused,
then her version of the story deserves much weight.[19]

The purported inconsistencies in Mendejas testimony pointed out by Villacorta are on matters that have no bearing on the fundamental fact which
Mendeja testified on: that Villacorta stabbed Cruz in the early morning of January 23, 2002, right in front of Mendejas store.

In the face of Mendejas positive identification of Villacorta as Cruzs stabber, Villacorta could only muster an uncorroborated denial. Denial, like
alibi, as an exonerating justification, is inherently weak and if uncorroborated, regresses to blatant impotence. Like alibi, it also constitutes self-
serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testify on
affirmative matters.[20]

Hence, we do not deviate from the foregoing factual findings of the RTC, as affirmed by the Court of Appeals.

Nevertheless, there is merit in the argument proffered by Villacorta that in the event he is found to have indeed stabbed Cruz, he should only be
held liable for slight physical injuries for the stab wound he inflicted upon Cruz. The proximate cause of Cruzs death is the tetanus infection, and
not the stab wound.

Proximate cause has been defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have occurred.[21]
In this case, immediately after he was stabbed by Villacorta in the early morning of January 23, 2002, Cruz was rushed to and treated as an out-
patient at the Tondo Medical Center. On February 14, 2002, Cruz was admitted to the San Lazaro Hospital for symptoms of severe tetanus
infection, where he died the following day, on February 15, 2002. The prosecution did not present evidence of the emergency medical treatment
Cruz received at the Tondo Medical Center, subsequent visits by Cruz to Tondo Medical Center or any other hospital for follow-up medical
treatment of his stab wound, or Cruzs activities between January 23 to February 14, 2002.

In Urbano v. Intermediate Appellate Court,[22] the Court was confronted with a case of very similar factual background as the one at bar. During an
altercation on October 23, 1980, Urbano hacked Javier with a bolo, inflicting an incised wound on Javiers hand. Javier was treated by Dr. Meneses.
On November 14, 1980, Javier was rushed to the hospital with lockjaw and convulsions. Dr. Exconde, who attended to Javier, found that Javiers
serious condition was caused by tetanus infection. The next day, on November 15, 1980, Javier died. An Information was filed against Urbano for
homicide. Both the Circuit Criminal Court and the Intermediate Appellate Court found Urbano guilty of homicide, because Javier's death was the
natural and logical consequence of Urbano's unlawful act. Urbano appealed before this Court, arguing that Javiers own negligence was the
proximate cause of his death. Urbano alleged that when Dr. Meneses examined Javiers wound, he did not find any tetanus infection and that Javier
could have acquired the tetanus germs when he returned to work on his farm only two (2) weeks after sustaining his injury. The Court granted
Urbanos appeal.

We quote extensively from the ratiocination of the Court in Urbano:

The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time Javier was wounded until his death which
would exculpate Urbano from any liability for Javier's death.

We look into the nature of tetanus-

The incubation period of tetanus, i.e., the time between injury and the appearance of unmistakable symptoms, ranges from 2 to 56 days. However,
over 80 percent of patients become symptomatic within 14 days. A short incubation period indicates severe disease, and when symptoms occur
within 2 or 3 days of injury the mortality rate approaches 100 percent.

Non-specific premonitory symptoms such as restlessness, irritability, and headache are encountered occasionally, but the commonest presenting
complaints are pain and stiffness in the jaw, abdomen, or back and difficulty swallowing. As the disease progresses, stiffness gives way to rigidity,
and patients often complain of difficulty opening their mouths. In fact, trismus is the commonest manifestation of tetanus and is responsible for
the familiar descriptive name of lockjaw. As more muscles are involved, rigidity becomes generalized, and sustained contractions called risus
sardonicus. The intensity and sequence of muscle involvement is quite variable. In a small proportion of patients, only local signs and symptoms
develop in the region of the injury. In the vast majority, however, most muscles are involved to some degree, and the signs and symptoms
encountered depend upon the major muscle groups affected.

Reflex spasm usually occur within 24 to 72 hours of the first symptoms, an interval referred to as the onset time. As in the case of the incubation
period, a short onset time is associated with a poor prognosis. Spasms are caused by sudden intensification of afferent stimuli arising in the
periphery, which increases rigidity and causes simultaneous and excessive contraction of muscles and their antagonists. Spasms may be both
painful and dangerous. As the disease progresses, minimal or inapparent stimuli produce more intense and longer lasting spasms with increasing
frequency. Respiration may be impaired by laryngospasm or tonic contraction of respiratory muscles which prevent adequate ventilation. Hypoxia
may then lead to irreversible central nervous system damage and death.

Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of more than 6 days. Trismus is usually present, but
dysphagia is absent and generalized spasms are brief and mild. Moderately severe tetanus has a somewhat shorter incubation period and onset
time; trismus is marked, dysphagia and generalized rigidity are present, but ventilation remains adequate even during spasms. The criteria for
severe tetanus include a short incubation time, and an onset time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent prolonged,
generalized convulsive spasms. (Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005; Emphasis supplied)

Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the incubation period of the disease.

In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo which Urbano used in hacking him. This
incident took place on October 23, 1980. After 22 days, or on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle
spasms. The following day, November 15, 1980, he died.

If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at the time, it is more medically probable that
Javier should have been infected with only a mild case of tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking
incident or more than 14 days after the infliction of the wound. Therefore, the onset time should have been more than six days. Javier, however,
died on the second day from the onset time. The more credible conclusion is that at the time Javier's wound was inflicted by the appellant, the
severe form of tetanus that killed him was not yet present. Consequently, Javier's wound could have been infected with tetanus after the hacking
incident. Considering the circumstance surrounding Javier's death, his wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22
days before he died.[23]

The incubation period for tetanus infection and the length of time between the hacking incident and the manifestation of severe tetanus infection
created doubts in the mind of the Court that Javier acquired the severe tetanus infection from the hacking incident. We explained in Urbano that:

The rule is that the death of the victim must be the direct, natural, and logical consequence of the wounds inflicted upon him by the accused.
(People v. Cardenas, supra) And since we are dealing with a criminal conviction, the proof that the accused caused the victim's death must convince
a rational mind beyond reasonable doubt. The medical findings, however, lead us to a distinct possibility that the infection of the wound by tetanus
was an efficient intervening cause later or between the time Javier was wounded to the time of his death. The infection was, therefore, distinct and
foreign to the crime. (People v. Rellin, 77 Phil. 1038).

Doubts are present. There is a likelihood that the wound was but the remote cause and its subsequent infection, for failure to take necessary
precautions, with tetanus may have been the proximate cause of Javier's death with which the petitioner had nothing to do. As we ruled in Manila
Electric Co. v. Remoquillo, et al. (99 Phil. 118).

"A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to
the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive,
unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger
existed in the condition except because of the independent cause, such condition was not the proximate cause. And if an independent negligent
act or defective condition sets into operation the instances, which result in injury because of the prior defective condition, such subsequent act or
condition is the proximate cause." (45 C.J. pp. 931-932). (at p. 125)[24]

We face the very same doubts in the instant case that compel us to set aside the conviction of Villacorta for murder. There had been an interval of
22 days between the date of the stabbing and the date when Cruz was rushed to San Lazaro Hospital, exhibiting symptoms of severe tetanus
infection. If Cruz acquired severe tetanus infection from the stabbing, then the symptoms would have appeared a lot sooner than 22 days later. As
the Court noted in Urbano, severe tetanus infection has a short incubation period, less than 14 days; and those that exhibit symptoms with two to
three days from the injury, have one hundred percent (100%) mortality. Ultimately, we can only deduce that Cruzs stab wound was merely the
remote cause, and its subsequent infection with tetanus might have been the proximate cause of Cruz's death. The infection of Cruzs stab wound
by tetanus was an efficient intervening cause later or between the time Cruz was stabbed to the time of his death.

However, Villacorta is not totally without criminal liability. Villacorta is guilty of slight physical injuries under Article 266(1) of the Revised Penal
Code for the stab wound he inflicted upon Cruz. Although the charge in the instant case is for murder, a finding of guilt for the lesser offense of
slight physical injuries may be made considering that the latter offense is necessarily included in the former since the essential ingredients of slight
physical injuries constitute and form part of those constituting the offense of murder.[25]

We cannot hold Villacorta criminally liable for attempted or frustrated murder because the prosecution was not able to establish Villacortas intent
to kill. In fact, the Court of Appeals expressly observed the lack of evidence to prove such an intent beyond reasonable doubt, to wit:

Appellant stabbed the victim only once using a sharpened bamboo stick, hitting him on the left side of the body and then immediately fled. The
instrument used is not as lethal as those made of metallic material. The part of the body hit is not delicate in the sense that instant death can ensue
by reason of a single stab wound. The assault was done only once. Thus, there is doubt as to whether appellant had an intent to kill the victim,
which should be resolved in favor of the appellant. x x x.[26]

The intent must be proved in a clear and evident manner to exclude every possible doubt as to the homicidal (or murderous) intent of the
aggressor. The onus probandi lies not on accused-appellant but on the prosecution. The inference that the intent to kill existed should not be
drawn in the absence of circumstances sufficient to prove this fact beyond reasonable doubt. When such intent is lacking but wounds were
inflicted, the crime is not frustrated murder but physical injuries only.[27]

Evidence on record shows that Cruz was brought to Tondo Medical Center for medical treatment immediately after the stabbing incident. Right
after receiving medical treatment, Cruz was then released by the Tondo Medical Center as an out-patient. There was no other evidence to establish
that Cruz was incapacitated for labor and/or required medical attendance for more than nine days. Without such evidence, the offense is only
slight physical injuries.[28]

We still appreciate treachery as an aggravating circumstance, it being sufficiently alleged in the Information and proved during trial.

The Information specified that accused, armed with a sharpened bamboo stick, with intent to kill, treachery and evident premeditation, did then
and there willfully, unlawfully and feloniously attack, assault and stab with the said weapon one DANILO SALVADOR CRUZ x x x.

Treachery exists when an offender commits any of the crimes against persons, employing means, methods or forms which tend directly or
especially to ensure its execution, without risk to the offender, arising from the defense that the offended party might make. This definition sets
out what must be shown by evidence to conclude that treachery existed, namely: (1) the employment of such means of execution as would give
the person attacked no opportunity for self-defense or retaliation; and (2) the deliberate and conscious adoption of the means of execution. To
reiterate, the essence of qualifying circumstance is the suddenness, surprise and the lack of expectation that the attack will take place, thus,
depriving the victim of any real opportunity for self-defense while ensuring the commission of the crime without risk to the aggressor.[29] Likewise,
even when the victim was forewarned of the danger to his person, treachery may still be appreciated since what is decisive is that the execution of
the attack made it impossible for the victim to defend himself or to retaliate.[30]

Both the RTC and the Court of Appeals found that treachery was duly proven in this case, and we sustain such finding. Cruz, the victim, was
attacked so suddenly, unexpectedly, and without provocation. It was two oclock in the morning of January 23, 2002, and Cruz, who was out buying
bread at Mendejas store, was unarmed. Cruz had his guard down and was totally unprepared for an attack on his person. Villacorta suddenly
appeared from nowhere, armed with a sharpened bamboo stick, and without uttering a word, stabbed Cruz at the left side of his body, then swiftly
ran away. Villacortas treacherous mode of attack left Cruz with no opportunity at all to defend himself or retaliate.

Article 266(1) of the Revised Penal Code provides:

ART. 266. Slight physical injuries and maltreatment. The crime of slight physical injuries shall be punished:

1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate the offended party from labor from one to nine days,
or shall require medical attendance during the same period.

The penalty of arresto menor spans from one (1) day to thirty (30) days.[31] The Indeterminate Sentence Law does not apply since said law
excludes from its coverage cases where the penalty imposed does not exceed one (1) year.[32] With the aggravating circumstance of treachery, we
can sentence Villacorta with imprisonment anywhere within arresto menor in the maximum period, i.e., twenty-one (21) to thirty (30) days.
Consequently, we impose upon Villacorta a straight sentence of thirty (30) days of arresto menor; but given that Villacorta has been in jail since July
31, 2002 until present time, already way beyond his imposed sentence, we order his immediate release.

Under paragraph (1), Article 2219 of the Civil Code, moral damages may be recovered in a criminal offense resulting in physical injuries. Moral
damages compensate for the mental anguish, serious anxiety, and moral shock suffered by the victim and his family as being a proximate result of
the wrongful act. An award requires no proof of pecuniary loss. Pursuant to previous jurisprudence, an award of Five Thousand Pesos (P5,000.00)
moral damages is appropriate for less serious, as well as slight physical injuries.[33]

WHEREFORE, the Decision dated July 30, 2008 of the Court of Appeals in CA-G.R. CR.-H.C. No. 02550, affirming the Decision dated September 22,
2006 of the Regional Trial Court, Branch 170, of Malabon, in Criminal Case No. 27039-MN, is REVERSED and SET ASIDE. A new judgment is entered
finding Villacorta GUILTY beyond reasonable doubt of the crime of slight physical injuries, as defined and punished by Article 266 of the Revised
Penal Code, and sentenced to suffer the penalty of thirty (30) days arresto menor. Considering that Villacorta has been incarcerated well beyond
the period of the penalty herein imposed, the Director of the Bureau of Prisons is ordered to cause Villacortas immediate release, unless Villacorta
is being lawfully held for another cause, and to inform this Court, within five (5) days from receipt of this Decision, of the compliance with such
order. Villacorta is ordered to pay the heirs of the late Danilo Cruz moral damages in the sum of Five Thousand Pesos (P5,000.00).

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 181052 November 14, 2012
RODOLFO BELBIS, JR. y COMPETENTE and ALBERTO BRUCALES, Petitioners,
vs.
PEOLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This is a Petition for Review on Certiorari1 under Rule 45, dated February 22, 2008, of Rodolfo Belbis, Jr. and Alberto Brucales that seeks to reverse
and set aside the Decision2 of the Court of Appeals (CA), dated August 17, 2007, and its Resolution dated January 4, 2008, at1irrning with
modification the Decision3 dated December 23, 2004 of the Regional Trial Court (RTC), Tabaco City, AI bay, Branch 17, finding petitioners guilty
beyond reasonable doubt of the crime off Homicide.
The factual antecedents follow.
Jose Bahillo (Jose), the victim, was a Barangay Tanod of Sitio Bano, Barangay Naga, Tiwi, Albay. Around 9:00 p.m. of December 9, 1997, Jose left his
house and proceeded to the area assigned to him. Later on, around 10:00 p.m., Veronica Dacir (Veronica), Jose's live-in partner, heard Jose
shouting and calling her name and went to where Jose was and saw blood at his back and shorts. It was there that Jose told Veronica that he was
held by Boboy (petitioner Alberto Brucales), while Paul (petitioner Rodolfo Belbis, Jr.) stabbed him. Jose was taken to St. Claire Medical Clinic at
Tiwi, Albay, about four kilometers from Barangay Naga where he was initially attended by Dr. Bernardo Corral (Dr. Corral). Jose was later referred
to Ziga Memorial District Hospital at Tabaco, Albay and, thereafter, was referred to Albay Provincial Hospital on December 10, 1997 at 2:00 a.m. He
was confined therein for six (6) days. Dr. Sancho Reduta (Dr. Reduta), his attending physician, issued a medical certificate, which stated the
following wounds found on Jose's body: (1) stab wound, 3 cm., lumbar area, right; (2) stab wound, 3 cm., lumbar area, left; (3) stab wound, 3 cm.,
left buttock, medial aspect; and (4) stab wound, 3 cm., left buttock, lateral aspect. He was also found positive for alcoholic breath, his blood level
was monitored and was given I.V. (intravenous) fluids and antibiotics. He was finally discharged on December 15 1997. Dr. Reduta issued Jose
prescriptions and instructed the latter to go back to the hospital after the medicines prescribed are consumed. Jose remained bedridden and
should have returned to the hospital on December 22, 1997, but failed to do so due to financial constraints. During that time, the wounds of Jose
were not yet fully healed.
Veronica brought Jose back to St. Claire Medical Clinic on January 1, 1998, because the latter was complaining of urinary retention and pains in his
left and right lumbar regions. Dr. Corral suspected that Jose had septicemia; thus, he was given I.V. fluids, antibiotics and diuretics, and a catheter
was used to relieve Jose of urinary retention. Upon Jose's request, he was discharged on January 3, 1998. He was brought back to the same hospital
on January 7, 1998 and was diagnosed by Dr. Corral as having advanced Pyelonephritis, his kidney was inflamed and with pus formation and
scarring. Around 10:30 a.m. on January 8, 1998, SPO1 Lerma Bataller of the Philippine National Police-Tiwi went to the hospital to secure Jose's
ante-mortem statement. Later, in the afternoon of the same day, Jose was brought to the clinic of Dr. Marilou Compuesto upon the advice of Dr.
Corral where he underwent ultrasound scanning. It was found that Jose's kidney had acute inflammation due to infection. He was returned to St.
Claire Medical Clinic and was advised to go to Manila. However, Jose died at 10:00 p.m. of the same day.
Dr. Corral issued a Death Certificate which shows the following:
a) Immediate cause – Uremia, secondary to renal shutdown
b) Antecedent cause – Septicemia, renal inflammatory disease.
Dr. Wilson Moll Lee, Medical Officer III of the National Bureau of Investigation (NBI) of Naga City, Region V, conducted an autopsy on the victim's
cadaver on January 14, 1998 and issued Autopsy Report No. BRO No. 98-02, which indicated multiple organ failure as the cause of the victim's
death. Thus, petitioners were charged with the crime of homicide. The Information reads:
That on or about the 9th day of December 1997, at about 10:30 o'clock in the evening, more or less, at Barangay Naga, Municipality of Tiwi,
Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, conspiring,
confederating and helping one another, did then and there willfully, unlawfully, and feloniously assault, attack, and stab JOSE BAHILLO, thereby
inflicting upon the latter stab wounds which caused his death on January 8, 1998, to the damage and prejudice of the latter's heirs.
CONTRARY TO LAW.
On February 17, 1999, petitioners entered a plea of not guilty. Thereafter, trial on the merits ensued.
The prosecution presented documentary evidence as well as the testimonies of Dr. Marilou Compuesto, Dr. Sancho Reduta, Dr. Bernardo Corral,
Dr. Wilson Moll Lee, SPO1 Lerma Bataller and Calixto Dacullo.
Petitioners claimed that they are entitled to the justifying circumstance of self-defense. Through the testimonies of petitioners, Dr. Olga Bausa and
Dr. Edwin Lino Romano, their version of the incident is as follows:
Around 10:00 p.m. of December 9, 1997, petitioners were outside a store in Naga, Tiwi, Albay, engaged in a conversation with other people when
Jose went to them and told them to go home. While on their way home, they heard Jose's whistle go off as the latter was following them.
Petitioner Rodolfo asked Jose what is the matter and the latter replied, "What about?" Suddenly, Jose thrust a nightstick on petitioner Rodolfo, but
the latter was able to evade it. Afterwards, Jose held the nightstick horizontally with both hands and tried to hit petitioner Rodolfo's forehead.
Petitioner Rodolfo held the nightstick which was in reality, a bolo sheathed on a scabbard. Jose pulled the bolo inside and the wooden scabbard
was detached from it, thus, the blade thereof injured his left hand. Petitioner Rodolfo kept holding the wooden scabbard and when Jose thrust the
bolo to petitioner Rodolfo, the latter parried it with the wooden scabbard he was holding. Petitioner Rodolfo managed to take the bolo away from
Jose and, thereafter, the latter embraced petitioner Rodolfo while trying to get the bolo back. Petitioner Rodolfo held the bolo with his right hand
and swung it away from Jose. Thereafter, Jose pushed petitioner Rodolfo causing the bolo to slip from the latter's hand. Jose tried to pick the bolo
up, but petitioner Rodolfo was able to hold it first, thus, Jose stepped back. During that commotion, petitioner Alberto was only watching and told
Jose and petitioner Rodolfo to stop fighting.
Thereafter, petitioner Alberto accompanied petitioner Rodolfo to the latter's house because he suffered a hand injury. Petitioner Rodolfo was then
brought to Tabaco General Hospital before he was referred to Albay Provincial Hospital. Dr. Reduta sutured the top layer of his wound and the
following day, he went back to Tabaco General Hospital where he was operated on his left hand injury by Dr. Romano.
Petitioner Rodolfo brought the bolo used in the incident with him in his house and reported the matter to the police station of Tiwi and
surrendered the same bolo to the police authorities.
The RTC convicted the petitioners of the crime charged against them, but appreciated the mitigating circumstance of incomplete self-defense. The
dispositive portion of the decision follows:
WHEREFORE, premises considered, the accused Rodolfo Belbis, Jr. and Alberto Brucales are found guilty beyond reasonable doubt for the death of
Jose Bahillo. Considering the privileged mitigating circumstance of incomplete self-defense in their favor, and applying the Indeterminate
Sentence Law, they are hereby sentenced to suffer the indeterminate penalty of four (4) years and two (2) months of prision correccional as
minimum to eight (8) years and one (1) day of prision mayor as maximum, and to pay the heirs of Jose Bahillo the amounts of P50,000.00 as civil
indemnity and P50,000.00 as moral damages.
Costs against the accused.
SO ORDERED.4
After the denial of their motion for reconsideration, the petitioners elevated the case to the CA. However, the latter denied their appeal and
affirmed the RTC decision with modification that there was no mitigating circumstance of incomplete self-defense. The decretal portion of the
decision reads:
WHEREFORE, the decision dated 23 December 2004 of the Regional Trial Court of Tabaco City, Albay, Branch 17 is hereby AFFIRMED with
MODIFICATION as to the penalty imposed. Accused-appellants Rodolfo C. Belbis, Jr. and Alberto Brucales are sentenced to suffer the indeterminate
sentence of six (6) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal as maximum.
Costs de oficio.
SO ORDERED.5
Petitioners' motion for reconsideration was denied. Hence, the present petition.
Raised are the following issues:
I
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT THE STATEMENTS MADE BY THE VICTIM TO VERONICA DACIR, ONE MONTH
PRIOR TO THE VICTIM'S DEATH. CONSTITUTES A DYING DECLARATION WITHIN THE CONTEMPLATION OF SECTION 37, RULE 130 OF THE RULES OF
COURT?
II
WHETHER OR NOT THE COURT OF APPEALS ERRED IN RULING THAT PETITIONERS-APPELLANTS ARE NOT ENTITLED TO THE JUSTIFYING
CIRCUMSTANCE OF SELF-DEFENSE AND THE MITIGATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE?
III
WHETHER OR NOT THE COURT OF APPEALS ERRED IN RULING THAT THE STAB WOUNDS WERE THE PROXIMATE CAUSE OF THE VICTIM'S DEATH?
IV
WHETHER OR NOT THE COURT OF APPEALS ERRED IN RULING THAT THE MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER IS NOT PRESENT
IN THE CASE AT BAR?6
The petition lacks merit.
In a criminal case, factual findings of the trial court are generally accorded great weight and respect on appeal, especially when such findings are
supported by substantial evidence on record.7 This rule, however, is not without exceptions, one of which is when there is a conflict between the
factual findings of the Court of Appeals and the trial court which necessitates a review of such factual findings.8
Petitioners claim that there is discrepancy in the findings of the RTC and the CA. According to them, the RTC never mentioned about a dying
declaration which the CA discussed in its decision. They then argue that the CA erred in ruling that the statements made by the victim in the
presence of witnesses Veronica Dacir right after being stabbed, and SPO1 Lerma Bataller before he died, are dying declarations within the
contemplation of the law as the victim still lived for one month after the said dying declaration was made.
A dying declaration is a statement made by the victim of homicide, referring to the material facts which concern the cause and circumstances of
the killing and which is uttered under a fixed belief that death is impending and is certain to follow immediately, or in a very short time, without an
opportunity of retraction and in the absence of all hopes of recovery. In other words, it is a statement made by a person after a mortal wound has
been inflicted, under a belief that death is certain, stating the facts concerning the cause and circumstances surrounding his/her death.9
As an exception to the hearsay rule, the requisites for its admissibility are as follows: (1) the declaration is made by the deceased under the
consciousness of his impending death; (2) the deceased was at the time competent as a witness; (3) the declaration concerns the cause and
surrounding circumstances of the declarant’s death; and (4) the declaration is offered in a criminal case wherein the declarant’s death is the subject
of inquiry.10
The fact that the victim was stabbed on December 9, 1997 and died only on January 8, 1998 does not prove that the victim made the statement or
declaration under the consciousness of an impending death. The rule is that, in order to make a dying declaration admissible, a fixed belief in
inevitable and imminent death must be entered by the declarant. It is the belief in impending death and not the rapid succession of death in point
of fact that renders the dying declaration admissible. It is not necessary that the approaching death be presaged by the personal feelings of the
deceased. The test is whether the declarant has abandoned all hopes of survival and looked on death as certainly impending.11 As such, the CA
incorrectly ruled that there were dying declarations.
The CA should have admitted the statement made by the victim to Veronica Dacir right after he was stabbed as part of the res gestae and not a
dying declaration. Section 42 of Rule 130 of the Rules of Court, reads as follows:
Sec. 42. Part of the res gestae. - Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent
thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So also, statements accompanying an
equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae.
All that is required for the admissibility of a given statement as part of the res gestae, is that it be made under the influence of a startling event
witnessed by the person who made the declaration before he had time to think and make up a story, or to concoct or contrive a falsehood, or to
fabricate an account, and without any undue influence in obtaining it, aside from referring to the event in question or its immediate attending
circumstances. In sum, there are three requisites to admit evidence as part of the res gestae: (1) that the principal act, the res gestae, be a startling
occurrence; (2) the statements were made before the declarant had the time to contrive or devise a falsehood; and (3) that the statements must
concern the occurrence in question and its immediate attending circumstances.12
It goes without saying that the element of spontaneity is critical. The following factors are then considered in determining whether statements
offered in evidence as part of the res gestae have been made spontaneously, viz., (1) the time that lapsed between the occurrence of the act or
transaction and the making of the statement; (2) the place where the statement was made; (3) the condition of the declarant when he made the
statement; (4) the presence or absence of intervening events between the occurrence and the statement relative thereto; and (5) the nature and
circumstances of the statement itself.13
Clearly, the statement made by the victim identifying his assailants was made immediately after a startling occurrence which is his being stabbed,
precluding any chance to concoct a lie. As shown in the testimony of Veronica:
Q What time did you sleep that night?
xxxx
A I was not able to sleep that night because I already heard my husband.
Q What did you hear?
A He was shouting.
Q What was he shouting?
A He was calling my name, "Bonic."
Q How did you come to know that it was the voice of your live-in partner?
A Because upon hearing his call "Bonic," I went to the side of the road and I saw him on the road walking towards our house.
Q More or less what time was that?
A 10:00 p.m.
Q What did you do?
A I approached him.
Q What particular place did you approach him?
A Near the store of Susan Galica.
Q What happened when you approached him?
A I asked him what happened.
Q What was the answer?
A He said that he was stabbed by Paul.
Q What else?
A: He was held by Boboy.
xxxx
Q What did you observe from Jose Bahillo your live-in partner before you brought him to the hospital?
A He was bloody and he was weak.
Q Could you tell us where did you see the blood?
A At his back and on his shorts.14
Be that as it may, the CA need have discussed in its decision the presence of a dying declaration or a statement as part of the res gestae, because
petitioner Rodolfo admitted stabbing the victim but insists that he had done the deed to defend himself. It is settled that when an accused admits
killing the victim but invokes self-defense to escape criminal liability, the accused assumes the burden to establish his plea by credible, clear and
convincing evidence; otherwise, conviction would follow from his admission that he killed the victim.15 Self-defense cannot be justifiably
appreciated when uncorroborated by independent and competent evidence or when it is extremely doubtful by itself.16 Indeed, in invoking self-
defense, the burden of evidence is shifted and the accused claiming self-defense must rely on the strength of his own evidence and not on the
weakness of the prosecution.17
The essential requisites of self-defense are the following: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the means
employed to prevent or repel such aggression; and (3) lack of sufficient provocation on the part of the person resorting to self-defense.18 Verily, to
invoke self-defense successfully, there must have been an unlawful and unprovoked attack that endangered the life of the accused, who was then
forced to inflict severe wounds upon the assailant by employing reasonable means to resist the attack.19
Petitioners argue that the unlawful aggression that was started by the victim continued even if petitioner Rodolfo was already in possession of the
bladed weapon used in the victim's stabbing. Petitioner Alberto narrated the event as follows:
Q: What happened?
A: Rodolfo Belbis Jr. was able to fend off or parry the blow.
Q: Then what happened again?
A: The next action of Jose Bahillo was to hold the wood horizontally and push it towards Rodolfo Belbis, Jr. and Rodolfo Belbis, Jr. was able to get
hold of it.
Q: Then what happened after Rodolfo Belbis, Jr. was able to get hold of this stick?
A: The piece of wood was detached. The one Rodolfo Belbis, Jr. was holding was the scabbard, while the one with the sharp instrument was held by
Jose Bahillo.
Q: Then what happened after this?
A: Jose Bahillo embraced Rodolfo Belbis, Jr.
Q: Then?
A: Wanting to get hold of that sharp instrument.
Q: Then what did Rodolfo Belbis, Jr. do when Jose Bahillo embraced him and tried to wrest the sharp instrument from him?
A: While this Jose Bahillo was embracing this Rodolfo Belbis, Jr., Rodolfo Belbis. Jr. was moving his hands while holding the sharp instrument,
holding it away and thrusting it towards the back of Jose Bahillo, near the waistline at the back.
Q: Then what happened when you saw this?
A: When Jose Bahillo was not able to get hold of that sharp instrument, this Jose Bahillo pushed the body of Rodolfo Belbis, Jr. away from him and
Rodolfo Belbis, Jr. fell down.
Q: Then what happened to the sharp instrument which Rodolfo Belbis, Jr. was holding when Rodolfo Belbis, Jr. fell down?
A: That sharp instrument got loose from his hand but it was situated just near him.
Q: Who are you referring as "him?"
A: Rodolfo Belbis, Jr.
Q: Then after this sharp instrument was loosened from the hand of Rodolfo Belbis, Jr. after he fell down, would you kindly inform this Court what
happened next?
A: At that point, this Jose Bahillo again tried to get the sharp instrument but Rodolfo Belbis, Jr. was faster and he got hold of that instrument and
thrust it towards Jose Bahillo.20
From the above testimony, it is apparent that the unlawful aggression on the part of the victim ceased when petitioner Rodolfo was able to get
hold of the bladed weapon. Although there was still some struggle involved between the victim and petitioner Rodolfo, there is no doubt that the
latter, who was in possession of the same weapon, already became the unlawful aggressor. Retaliation is not the same as self-defense. In
retaliation, the aggression that was begun by the injured party already ceased when the accused attacked him, while in self-defense the aggression
still existed when the aggressor was injured by the accused.21 Such an aggression can also be surmised on the four stab wounds sustained by the
victim on his back. It is hard to believe based on the location of the stab wounds, all at the back portion of the body (right lumbar area, left lumbar
area, left buttock, medial aspect and left buttock, lateral aspect), that petitioner Rodolfo was defending himself. It would have been different if the
wounds inflicted were located in the front portion of the victim's body. The CA is, therefore, correct in agreeing with the observation of the RTC
when it found that:
x x x The Court is not convinced on how Bahillo sustained the four stab wounds as narrated by Belbis.1âwphi1 If it is true that Bahillo embraced him
when he was able to wrest possession of the bolo, trying to get it back; that he held it away from his reach and swung it at Bahillo's back; that he
felt the blade touch the body, the nature of the wounds inflicted would be different. It would be a laceration, slash or abrasion since it was the
sharp blade that hit the back and not the pointed end of the bolo. The location and nature of the injuries which were stab wounds clearly showed
that they were not caused by swinging thrust. They were caused by direct thrust. It was the pointed end of the bolo that caused the injuries which
hit the same spot – the lumbar area and the buttock.22
The means employed by a person claiming self-defense must be commensurate to the nature and the extent of the attack sought to be averted,
and must be rationally necessary to prevent or repel an unlawful aggression.23 In the present case, four stab wounds that are the product of direct
thrusting of the bladed weapon are not necessary to prevent what the petitioners claim to be the continuous unlawful aggression from the victim
as the latter was already without any weapon. In connection therewith, having established that there was no unlawful aggression on the part of the
victim when he was stabbed, petitioners cannot avail of the mitigating circumstance of incomplete self-defense.
Anent the contention of petitioners that the CA failed to consider the testimony of the doctor who performed the autopsy in its entirety, the same
is without any merit. What really needs to be proven in a case when the victim dies is the proximate cause of his death. Proximate cause has been
defined as "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without
which the result would not have occurred."24 The autopsy report indicated that the cause of the victim's death is multiple organ failure. According
to Dr. Wilson Moll Lee, the doctor who conducted the autopsy, the kidneys suffered the most serious damage. Although he admitted that autopsy
alone cannot show the real culprit, he stated that by having a long standing infection caused by an open wound, it can be surmised that multiple
organ failure was secondary to a long standing infection secondary to stab wound which the victim allegedly sustained.25 What is important is that
the other doctors who attended to the wounds sustained by the victim, specially those on the left and right lumbar area, opined that they affected
the kidneys and that the wounds were deep enough to have caused trauma on both kidneys. On that point, the Office of the Solicitor General
(OSG), in its Comment,26 is correct in stating the following:
9.3.1 Petitioners-appellants contend that the Court of Appeals failed to consider the testimony of Dr. Lee for the defense. Dr. Lee opines on cross-
examination that the stab wounds sustained by Bahillo are not the cause of his death because he lived for quite sometime and that there was no
direct injury on his vital organs. There was, however, a qualification to Dr. Lee's statement on cross-examination. He opines that he could only
connect the stab wounds with the infection and death of Bahillo if he has knowledge of the past medical records of the patient. Petitioners-
appellants' reliance of the said statement of Dr. Lee is misplaced because the doctor only examined the cadaver of Bahillo. This explains why he has
no direct knowledge of Bahillo's medical records. The opinions of the other doctors who testified for the prosecution and who examined Bahillo
while he was still alive are more conclusive than those of Dr. Lee. They had direct knowledge of the causal relation between the stab wounds, the
kidney failure and the death of Bahillo.27
Thus, it can be concluded that without the stab wounds, the victim could not have been afflicted with an infection which later on caused multiple
organ failure that caused his death. The offender is criminally liable for the death of the victim if his delictual act caused, accelerated or contributed
to the death of the victim.28
As to the claim of petitioners that they are entitled to the mitigating circumstance of voluntary surrender, the same does not deserve merit. For
voluntary surrender to be appreciated, the following requisites should be present: (1) the offender has not been actually arrested; (2) the offender
surrendered himself to a person in authority or the latter's agent; and (3) the surrender was voluntary.29 The essence of voluntary surrender is
spontaneity and the intent of the accused to give himself up and submit himself to the authorities either because he acknowledges his guilt or he
wishes to save the authorities the trouble and expense that may be incurred for his search and capture.30 Without these elements, and where the
clear reasons for the supposed surrender are the inevitability of arrest and the need to ensure his safety, the surrender is not spontaneous and,
therefore, cannot be characterized as "voluntary surrender" to serve as a mitigating circumstance.31 In the present case, when the petitioners
reported the incident and allegedly surrendered the bladed weapon used in the stabbing, such cannot be considered as voluntary surrender within
the contemplation of the law. Besides, there was no spontaneity, because they only surrendered after a warrant of their arrest had already been
issued.
WHEREFORE, the Petition for Review on Certiorari under Rule 45, dated February 22, 2008, of Rodolfo Belbis, Jr. and Alberto Brucales, is hereby
DENIED. Consequently, the Decision of the Court of Appeals, dated August 17, 2007, and its Resolution dated January 4, 2008, affirming with
modification the Decision dated December 23, 2004 of the Regional Trial Court, Tabaco City, Albay, Branch 17, finding petitioners guilty beyond
reasonable doubt of the crime of Homicide are hereby AFFIRMED.
SECOND DIVISION
G.R. No. 206227, August 31, 2016
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. STANLEY BUENAMER Y MANDANE, Accused-Appellant.
DECISION
DEL CASTILLO, J.:
This is an appeal from the June 7, 2012 Decision1 of the Court of Appeals (CA) in CA-GR. CR-H.C. No. 04881, which affirmed with modification the
May 18, 2010 Decision2 of the Regional Trial Court (RTC) of Manila, Branch 33, in Criminal Case No. 09-272017, finding appellant Stanley Buenamer
y Mandane (Buenamer) guilty beyond reasonable doubt of the crime of robbery with homicide, as defined and penalized in Article 294, paragraph 1
of the Revised Penal Code (RPC), and sentencing him to suffer the penalty of reclusion perpetua.

Proceedings before the Regional Trial Court


Buenamer and his co-accused Jerome Lambada y Landero (Lambada) were indicted for the felony of robbery with homicide for staging an armed
robbery inside a passenger FX taxi and causing the death of one of the passengers therein. The indictment against them alleged—
The undersigaed accuses STANLEY BUENAMER y MANDANE and JEROME LAMBADA y LANDERO of the crime of Robbery with Homicide, committed
as follows:ChanRoblesVirtualawlibrary
That on or about October 20, 2009 in the City of Manila, Philippines, the said accused, conspiring and confederating together and mutually helping
each other, with intent to gain and by means of force, violence, and intimidation, to wit: by boarding a passenger FX taxi going to España Blvd.,
Sampaloc, this City, announcing a hold up then pointing their guns to its passengers and FERRARIE TAN y OALLESMA and divesting from him his
black bag containing a Sony PSP colored black with casing and one (1) brown envelope with cash money in the amount of P5,460.00, did then and
there, willfully, unlawfully and feloniously take, rob and carry away the same, against his will, to the damage and prejudice of the said FERRARIE
TANy OALLESMA in the amount of more than P5,460.00, Philippine Currency; that on occasion of or by reason of the said robbery and for the
purpose of enabling themselves to take, rob and carry away the personal properties of the passengers, attack, assault and use personal violence
upon said FERRARIE TAN y OALLESMA when he chased the said accused who boarded a passenger jeepney in order to escape, but was boxed when
he held on the handle bar of the jeepney causing him to [lose] his grip and [fall] from the jeepney and thereafter was ran over by the rear tire of
said jeepney, thereby inflicting upon him physical injuries which were the direct and immediate cause of his death thereafter.
CONTRARY TO LAW.3chanroblesvirtuallawlibrary
Arraigned on December 7, 2009 both accused, assisted by counsel, entered a negative plea to the crime charged. After the pre-trial conference,
trial on the merits followed.

During the trial, the prosecution presented the following witnesses: Manila Traffic and Parking Bureau (MTPB) Enforcers Peter Paul de Jesus (De
Jesus), Raymond Buaron (Buaron), and James Mendez y Dones (Mendez), Police Officer 3 Jay Santos (PO3 Santos), Diana David y Del Pilar (David),
Carolyn Tan (Carolyn), and Dr. Romeo Salen (Dr. Salen). Their collective testimonies tended to establish the following facts:

chanRoblesvirtualLawlibraryOn October 20, 2009, at around 5:00 o'clock in the afternoon, David was on board a passenger FX taxi on her way
home from Quezon City to Sampaloc, Manila, when along España Boulevard, corner Maceda Street in Sampaloc, Inanila, a hold-up was announced
by Buenamer and Lambada. The armed duo demanded for the wallets, cellphones, and other valuables of the FX passengers, The two threatened
to shoot and blow up the brains of anyone who resisted them ("pasabugin ang ulo namin"). David heard the now deceased Ferrarie Tan (Ferrarie),
who was then wearing a nurse's uniform, crying and pleading to the robbers that he had already given to them his cellphone, a Sony PSP, and that
he was only a student. Nevertheless, the armed robbers proceeded to divest, as indeed they divested, the passengers of their personal effects,
including David's own Nokia cellphone and coin purse.

When the FX stopped at an intersection along Maceda Street and España Boulevard in Sampaloc, Manila, David quickly got off the FX and shouted
for help. Traffic enforcers and bystanders heard her shout and plea for assistance, and at once chased after Buenamer and Lambada who were
trying to flee from the scene of the crime. Not long after this, David saw the lifeless Ferrarie lying along España Boulevard in Sampaloc.

De Jesus was an MTPB traffic enforcer on duty along España Boulevard when the incident took place. De Jesus testified that he responded to
David's call for help, along with another MTPB traffic enforcer, Mendez. David told the traffic enforcers that the fleeing suspects had boarded a red
jeepney. So De Jesus quickly rode his motorcycle and went after the red jeepney which was carrying the robbers. One of the robbers got off at
Florentino Street in Sampaloc, Manila. Here, De Jesus was able to apprehend Buenamer after a tricycle accidentally ran over the latter. Buenamer
was beaten up by the by-standers, and then brought to the barangqy hall nearby, where people there were able to recover from him a bag
containing a Sony PSP, cellphone, a gun with several bullets, a pay slip with brown envelope, and money.

Another MTPB employee, traffic enforcer Mendez, also heard David's shout for help, and when David pointed to the jeepney where the hold-
uppers were, he (Mendez) went near the jeepney, just in time to see a person in white uniform holding on to the estribo (the handle bar) of the
jeepney. Mendez testified that he saw, this person's hands reaching inside the front seat of the jeepney, trying to regain possession of his Sony PSP,
cellphone and other valuables from Buenamer who was then sitting in front of the jeepney, near the driver; that he then saw Buenamer strike or
box that other person (who turned out to be Ferrarie), causing Ferrarie to fall off; and that after Ferrarie fell off, the jeepney's rear tire ran over
Ferrarie. After this Mendez mounted his motorcycle and went after Buenamer who fled the crime scene.

Still another MTPB traffic enforcer presented by the prosecution was Buaron. This traffic enforcer testified that he was the one who apprehended
Lambada somewhere near the vicinity of the North Cemetery along Bonifacio Avenue; and that he then brought Lambada to Police Station No. 1 in
Quezon City because the police authorities of Quezon City insisted on asserting jurisdiction over his case.

PO3 Santos of the Manila Police Department was the police investigator who prepared the Crime Report, Booking Sheet, and Arrest Report for
Buenamer and Lambada. It was also PO3 Santos who took the sworn statements of David, Mendez, and De Jesus. PO3 Santos testified that it was
he who recovered a Sony PSP, black cellphone, a brown envelope with the name "Tan, Ferrarie," a pay slip containing P5,460.00s and a 138 caliber
revolver with seven live bullets.

Carolyn was the mother of the victim. She identified her son Ferrarie at the Universal Funeral Parlor, despite his broken face. She testified that her
son was a registered nurse at the Ospital ng Makati and was earning P6,000.00 every 15 days. She claimed that she spent P2 million for the
interment and burial of Ferrarie.

Dr. Salen, the Medico-Legal Officer of the Manila Police District Crime Laboratory, conducted the post-mortem examination on the corpse of
Ferrarie. Dr. Salen testified that the victim's corpse was already in a state of rigor mortis when he examined it; that he found a 10 x 3 cm. lacerated
wound on Ferrarie's forehead, abrasions from the right and left side of the following: nose; chest; knees; feet; thighs; and; from the victim's
abdomen; and two lacerated wounds at the lower lip and on the chin. According to Dr. Salen, Ferrarie's ribs were fractured and his lungs
macerated.
The accused waived their right to present their defense.

Ruling of the Regional Trial Court

On May 18, 2010, the RTC rendered judgment finding Buenamer guilty beyond reasonable doubt of the crime of robbery with homicide. The RTC
however found Lambada-guilty merely of simple robbery. The RTC disposed thus

WHEREFORE, judgment is hereby rendered finding the accused STANLEY BUENAMER guilty beyond. reasonable doubt of the crime of Robbery with
Homicide under Article 294 of the Revised Penal Code as principal and is hereby sentenced to suffer the penalty of reclusion perpetua.

As for the accused JEROME LAMBADA, judgment is hereby rendered finding him guilty of the crime of Robbery with violence against or intimidation
of persons under Article 294 of the Revised Penal Code as principal and is hereby sentenced to suffer an indeterminate penalty of Two (2) years,
Ten (10) months and Eleven (11) days of prision correccional as minimum TO Six (6) years, One (1) month and Eleven (11) days of prision mayor
medium, as maximum.

The accused are likewise directed to pay the amount of P5,460.00 and the value of the Sony PSP taken from Ferrarie Tan.

Accused Stanley Buenamer is also ordered to pay the amount of P50,000.00 as civil indemnity and P50,000.00 as moral damages.

xxxx

SO ORDERED.4chanrobleslaw

Dissatisfied with the RTC's disposition, Buenamer appealed to the CA, arguing that the prosecution failed to prove his guilt beyond reasonable
doubt since his identity as the alleged perpetrator of the crime was not sufficiently established, Buenamer also contended that the mitigating
circumstance under Article 13(3) of the RFC should have been appreciated in his favor because he had no intention to commit so grave a wrong as
mat he committed. Buenamer insisted that when he hit or boxed Ferrarie on the arm, he had no intention of killing him at all.

Riding of the Court of Appeals

On June 7, 2012, the CA affirmed the RTC and ruled that Buenamer's appeal was without merit. The; CA found that the prosecution was able to
prove the identity of Buenamer through the testimonies of David and Mendez, both of whom were eyewitnesses to the crime. The CA noted in
particular that David was able to see the face of Buenamer inside the passenger FX taxi because David was herself a passenger in that vehicle.

As to Buenamer's invocation of the mitigating circumstance under Article 13(3) of the RPC, the CA he,id that this plea was unavailing. The CA ruled
that all the elements of the crime of robbery were present when Buenamer and Lambada held up the passengers of the FX taxi. The CA stressed
that the felony of robbery with homicide is committed once it is clearly shown that the criminal intention of the felon is to rob, and that there is a
killing which occurs before, during, or after the robbery.

The CA thus disposed as follows:ChanRoblesVirtualawlibrary


WHEREFORE, premises considered, the assailed Decision dated May 18, 2010 of the Regional Trial Court (RTC), Branch 33, Manila in Criminal Case
No. 09-272017 is hereby AFFIRMED with MODIFICATION, Accused-appellant is found GUILTY BEYOND REASONABLE DOUBT of the crime of Robbery
with Homicide and is hereby sentenced to suffer reclusion perpetua, and is ordered to pay P75,000.00 as civil damages and P50,000.00 as moral
damages.

SO ORDERED.5chanroblesvirtuallawlibrary
From that Decision, Buenamer took the present appeal and in support thereof now contends that the CA's Decision was contrary to the evidence,
the law, and jurisprudence.

Buenamer insists that the prosecution was not able to positively identify the perpetrators of the crime since the alleged eyewitness, David, was not
in a position to recognize them; that when the traffic enforcers heeded David's call for help and ran after the suspects, they did not know who to
pursue; and that in any event, the mitigating circumstance under Article 13, paragraph 3 of the RPC should benefit him because he did not intend
to kill Ferrarie when he hit the latter's right arm that caused the latter to fall off the passenger jeepney and be run over by the jeepney's rear tire.

Our Ruling

The appeal will not prosper.

We hold that both the RTC and the CA correctly found the appellant guilty beyond reasonable doubt of the felony of robbery with homicide.
Indeed, we are satisfied that in this case the prosecution was able to satisfactorily establish the elements of robbery with homicide, to
wit:ChanRoblesVirtualawlibrary
(1) The taking of personal property is committed with violence or intimidation against persons;

(2) The property taken belongs to another;

(3) The taking is with animo lucrandi; and cralawlawlibrary

(4) By reason of the robbery, or on the occasion thereof, homicide is committed.6chanroblesvirtuallawlibrary


All the elements mentioned above are present in this case. In point of fact, the prosecution succeeded in showing that the primary aim or objective
of the malefactors Buenamer and Lambada was to rob the passengers of the FX taxi. Prosecution witness David, a passenger of the FX taxi in which
the two robbers staged the heinous felony, was herself a victim of the robbery that was staged by the malefactors that afternoon of October 20,
2009 along España Boulevard in Sampaloc, Manila. David positively identified Buenamer as the very perpetrator of the crime together with his co-
accused Lambada. David testified that she saw the faces of these two malefactors when these two boarded the FX taxi at the Pantranco terminal in
Quezon Avenue, Quezon City; that Buenamer and Lambada, then armed with firearms, declared a hold-up on board the moving vehicle, after
which these; two divested the passengers of their personal belongings, while threatening the passengers that they would blow off their heads
("pasabugin ang ulo namin") should the passengers resist the robbery. By taking the personal belongings and valuables of the passengers,
employing force, violence, and intimidation, end motivated moreover by animus lucrandi or intent to gain or profit, and thereafter hitting Ferrarie
causing him to fall from the passenger jeepney resulting to his death, there can be no question that Buenamer did commit robbery with homicide.
Traffic enforcer Mendez saw Buenamer box or strike Ferrarie who, in consequence of such a blow, lost his grip on the estribo (or the handle bar) of
the moving vehicle, and fell off that vehicle, and was at once ran over by the vehicle's right rear tire, resulting in Ferrarie's sustaining lacerated
wounds, and numerous abrasions in various parts of his body mat ultimately led to his death. In the face of these actual, incontrovertible facts,
there can be no doubt that all the elements of robbery with homicide are present in this case.

Buenamer insists than his identity as the perpetrator of the crime was not clearly established because David was not in a position to recognize him.

We are not persuaded. David, who was a co-passenger of the now deceased Ferrarie that fateful afternoon of October 20, 2009, categorically
declared that it was Buenamer and Lambada who perpetrated the hold-up:ChanRoblesVirtualawlibrary
[Private Prosecutor] Atty. ARNULFO PELAGIO
QNow, you said that there were two male persons who boarded the FX, what about the other one, would you be able to recognize him also?

THE WITNESS:
A Yes, sir.
Q
Again, will you please look inside the Courtroom and tell the Honorable Court if he is inside the Courtroom?
Note:
At this point the Witness is pointing to accused Stanley Buenamer y Mandane.
Q Now, after this male person who was seated at the middle seat announced the hold up and pointed the gun to the driver, what happened next,
Madam Witness?
AHe told [us] to bring out the cellphones and wallet, sir. And then he [threatened] to kill us if we will not give our belongings to them and if ever we
will fight back then he will [blast] our heads away [pasabugin ang ulo namin], he will fire at our heads.7
And, no less clear, and convincing, is the testimony of traffic enforcer Mendez about the identity of Buenamer. Mendez was one of the traffic
enforcers who immediately responded to David's plea for help about the robbery hold-up; in fact, this witness boarded the very vehicle where the
robbery hold-up took place. And, as his testimony attests, there can be no doubt or question that Buenamer was one of the perpetrators of this
heinous crime:ChanRoblesVirtualawlibrary
QCould you tell us that incident, Mr. Witness?
A Because that hour is a rush hour, we were directing traffic at that time at our jurisdiction Sir when all of a sudden we heard a voice from a
woman coming from my right side asking for assistance.
QCould you recall the words that you heard from the woman?
A "Tulungan nyo po kami hinohold-up kami."
QUpon hearing those words from that woman, what did you do Mr. Witness?
A I approached her and she pointed to the jeepney where the hold-uppers boarded.
QCould you please describe to us, Mr. Witness, the jeepney?
A It is a red jeepney.
QAfter x x x Diana pointed to you the jeepney where the hold-uppers transferred, what did you do?
A I approached the jeepney and I saw a person wearing white clothes was holding at the "estribo" in the passenger side of the jeepney and that
person cannot ride at the front portion because [sic] of the jeepney and so he was being drag [sic] by the jeepney.
QYou said that the person wearing white uniform [was] holding at the bar or the "estribo" of the jeepney at the right side, could you tell us which
hand was x x x holding on to the bar?
A His right hand, Sir.
QWhat about his left arm?
A What I saw [was] that that person wearing white uniform [was] getting something from [the] person seated inside the jeepney.
QAfter you saw this incident, what happened next after that?
A I saw the person holding the iron bar was hit on his arm so he fell down and he was r[a]n over by the last tire of the jeepney, Sir.
QCould you tell us who was that person which you said hit the arm of the person wearing white uniform while he was holding at the iron bar or
"estribo"?
A Yes, Sir. Because I was near them.
QCould you tell us who is that?
A Stanley Buenamer, Sir.

Anent appellant's claim that the CA erred in not appreciating in his favor the mitigating circumstance of lack of intent to commit so grave a wrong
as that committed, this Court agrees with the CA that this mitigating circumstance cannot be invoked by the appellant. "This mitigating
circumstance addresses itself to the intention of the offender at the particular moment when the offender executes or commits the criminal act"9 -
an intention that must comport, amongst others, with the weapon/s used by the offender and the mode of attack adopted by the latter, vis-a-vis
the injuries sustained by his victim. Thus, in People v. Gonzalez, Jr.,10 we explained -
[t]his mitigating circumstancs is obtaining when there is a notable disparity between the means employed by the accused to commit a wrong and
the resulting crime committed. The intention of the accused at the time of the commission of the crime is manifested from the weapon used, the
mode of attack employed, and the injury sustained by the victim. x x x
Here, the records showed that Buenamer boxed or struck Ferrarie with such force that the latter lost his grip on the estribo or handle bar of the
vehicle, fell off and run over by the vehicle's rear tire. He subsequently died. The legal postulate enshrined under Article 3 of the RPC decrees that
every person shall be held responsible for all the natural and logical consequences of his felonious act. And, complementing this Article 3 is Article 4
of the same RPC, which provides that "criminal liability shall be incurred (1) by any person committing a felony, although the wrongful act done be
different from that which he intended." These two articles of the RPC must thus apply with implacable force against appellant; he must be called to
account for all the natural and logical consequences of his felonious act; and hence must be deemed to have incurred criminal liability, although
the felonious act he committed might have been different from that which he intended.

Nonetheless, the Ca's award of moral damages in the amount of P50,000.00 is hereby upgraded to P75,000.00 in conformity with recent
jurisprudence. In addition, appellant must pay exemplary damages in the amount of P75,000.00.

WHEREFORE, the appeal is DISMISSED. The Decision of the Court of Appeals dated June 7, 2012 in CA-G.R.CR-H.C. No. 04881, is AFFIRMED subject
to the MODIFICATION that the appellant Stanley Buenamer y Mandane is condemned to pay the heirs of Ferrarie Tan moral damages in the
increased amount of P75,000,00 and exemplary damages of P75,000.00. The award of civil damages, also in the amount of P75,000.00 is
maintained. These monetary awards shall earn interest at the rate of 6% per annum reckoned from the date of finality of this Decision until fully
paid.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32066 March 15, 1903
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and appellee,
vs.
GONA (Mansaca), defendant and appellant.
OSTRAND, J.:
The defendant was charged before the Court of First Instance of the Province of Davao with the crime of homicide, the information reading as
follows:
That on or about October 26, 1928, in the municipal district of Pantukan, Province of Davao, Philippine Islands, as within the jurisdiction of the
court, the said accused voluntarily, illegally, and criminally and with a bolo which he then carried, assaulted the Mansaca Mapudul, causing him a
mortal wound on the left side of the neck and that as a consequence of said wound, the said Mapudul died.
Upon trial the court below found the defendant guilty as charged in the information and taking into consideration the extenuating circumstance of
non-habitual intoxication, sentenced him to suffer twelve years and one of reclusion temporal with the accessory penalties prosecuted by law to
indemnity the heirs of the deceased in the sum of P1,000, and to the costs. From this sentenced the defendant appealed.
It appears from the evidence that on the evening of October 26, 1928, a number of Mansacas celebrated a reunion in the house of the Mansaca
Gabriel. There seems to have been liberal supply of alcoholic drinks and some of the men present became intoxicated, with the result that a quarrel
took the place between the Mansaca Dunca and the defendant. Dunca and his son Aguipo eventually left the house and were followed by Mapudul
and one Award. The defendant left the house about the same time with intention of assaulting Dunca, but in the darkness of the evening and in the
intoxicated condition of the defendant, the mistook Mapudul for Dunca and inflicated on him a mortal wound with a bolo.
There can no doubt that the defendant killed Mapudul and that he is guilty of the crime charged, but his attorney argues that in view of the fact
that said defendant had no intention to kill the deceased and committed the crime by mistake, he should have been found guilty of homicide
through negligence under paragraph 1 of article 568 of the Penal Code and not of the graver crime of intentional homicide.
This contention is contrary to earlier decisions of this court. In these case of United State vs. Mendieta(34 Phil., 242), the court said:
Even admitting that the defendant intended to injure Hilario Lauigan instead of Pedro Acierto, even that, in view of the mortal wound which
inflicted upon the latter, in no way could be considered as a relief from his criminal act. That he made a mistake in killing one man instead of
another, when it is proved that he acted maliciously and willfully, cannot relieve him from criminal responsibility. Neither do we believe that the
fact that he made a mistake in killing the wrong man should be considered as a mitigating circumstances.
The appealed sentence is affirmed with the costs against the defendant. So ordered.
Johnson, Malcolm, Villamor, Johns, Romualdez and Villa-Real, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-25459 August 10, 1926
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
RAMON MABUG-AT, defendant-appellant.

ROMUALDEZ, J.:
The Court of First Instance of Oriental Negros imposed upon Ramon Mabug-at the penalty of twelve years and one day cadena temporal, with the
accessories of the law, to indemnify the offended party in the sum of P700 and to pay the costs, for the crime of frustrated murder.
The appellant appealed from this judgment, making two assignments of error as committed by the trial court, to wit:
1. In holding that the crime committed is frustrated murder, and
2. In not giving any credit to the evidence presented by the defense, finding the defendant guilty beyond a reasonable doubt.
The evidence of the prosecution shows that the accused and Juana Buralo was sweethearts. Juana had been jealous of the accused on account of
the latter having frequently visited the house of one Carmen. Their relations were such that the accused invited Juana to take a walk on the
afternoon of August 9, 1925. Juana refused him, later sending him a note of excuse. On the third day, or the night of August 11th, the accused went
to the threshold of Cirilo Banyan's house where Juana Buralo had gone to take part in some devotion. There the accused, revolver in hand,
requested Francisco Abellon to ask Juana to come downstairs and as Abellon refused to do so, the accused said: "If you do not want to go upstairs,
I will get Juana and if anyone tries to defend her I will kill him."
The accused waited until Juana and her niece Perfecta Buralo came downstairs, when they went in the direction of their house. The accused, who
was seen by the two girls, followed them without saying a word. It is only a short distance from the house where the devotion took place to that of
the offended party, the houses being adjacent. As the two girls were going upstairs, the accused, while standing at the foot of the stairway, fired a
shot from his revolver which wounded Perfecta Buralo, the bullet passing through a part of her neck, having entered the posterior region thereof
and coming out through the left eye, which was completely destroyed. Due to proper medical attention, Perfecta Buralo did not die and is on e of
the witnesses who testified at the trial of this case.
The defense, without abandoning its allegation that the accused is not responsible for the crime, contends that the crime proven is not frustrated
murder but the discharge of a firearm, with injuries, it not having been proven that it was the accused's intention to kill.
The relations existing between the accused and Juana Buralo, his disappointment at her not accepting his invitation to take a walk, the fact that the
accused, revolver in hand, went to look for Juana Buralo at the house where the devotion was being held, later following her to her house, and
especially having aimed at her person--the head--are facts which, in our opinion, permit of no other conclusion than that, in firing the shot, it was
the accused's intention to kill.
In the decision of this court in the case of United States vs. Montenegro (15 Phil., 1), it was held:
We do not doubt that there may be cases wherein the discharge of a firearm at another is not in itself sufficient to sustain a finding of the intention
to kill, and there are many cases in the books wherein the attendant circumstances conclusively establish that on discharging a firearm at another
the actor was not in fact animated by the intent to kill. But, in seeking to ascertain the intention with which a specific act is committed, it is always
proper and necessary to look not merely to the act itself but to all the attendant circumstances so far as they are developed by the evidence; and
where, as in the case at bar, a revolver is twice discharged point-blank at the body of another, and the shots directed at the most vital parts of the
body, it needs but little additional evidence to establish the intent to kill beyond a reasonable doubt.
The fact that a person received the shot which was intended for another, does not alter his criminal liability. (Art. 1, par. 3, Penal Code.)
The circumstances qualifying the murder alleged in the complaint are evidence premeditation and treachery. Even when there is sufficient proof of
premeditation (which we do not believe has been sufficiently established), yet, it cannot be considered as a qualifying circumstance in the present
case, because the person whom the accused intended to kill was not Perfecta Buralo, who was hit by the bullet, but her aunt Juana Buralo. Had
evident premeditation been proven, and there being no other qualifying circumstance of frustrated murder present in this case, the acts should be
held to be frustrated homicide and punished with the maximum degree of the penalty prescribed by law. (Question 2, p. 28, 1890 ed., Viada's Penal
Code.) But, the fact is that treachery was proven and must be taken into consideration in this case, because the accused fired at Perfecta Buralo,
employing means which tended to insure the execution of the crime without running any risk himself from anyone who might attempt to defend
the said offended party. The treachery which, according to the evidence, would have attended the crime had the bullet hit Juana Buralo was
present in this case because the offended party Perfecta Buralo and Juana were going upstairs with their backs towards the accused when he fired
his revolver. The Supreme Court of Spain, in a decision of May 7, 1885 (Viada, do., pp. 29, 30), in holding a crime to be murder and not homicide,
stated the following:
Considering that, according to the concept of treachery as it is explained in article 10 of the Civil code dealing with said circumstance, it is evident
that in firing the gun which Alejandro Sola was carrying which caused the death of Nazario Iñigo, he employed means which tended to insure the
commission of the crime without any risk to himself arising from any defense that might be made by the offended party, for neither the wounded
party Bartolome Lobejano, at whom the shot was aimed in order to kill him so that he might not testify as to the assault committed upon him
shortly before, as held by the trial court, was not in a position to defend himself in any way, nor could Nazario Iñigo become aware of any attack so
unjustified, rapid and unforeseen; considering, further, that the purely accidental circumstance that as a result of the shot a person other than the
one intended was killed, does not modify, in the instant case, the elements constituting the crime of murder qualified by the treachery with which
Alejandro Sola acted, whether with respect to the wounded Bartolome Lobejano or to the deceased Nazario Iñigo, for which reason the rules of
article 65 are not applicable herein, the culprit not having, in fact, committed a crime different from that which he intended, taking into
consideration the substantial and intrinsical meaning thereof, etc.
Although the case just cited refers to the crime of consummated murder, the doctrine sustained therein is applicable to the case at bar so far as the
concurrence of treachery as a qualifying circumstance is concerned.
The crime now before us is frustrated murder, the accused having intended to kill and performed all the acts of execution, which would have
produced the crime of murder but which, nevertheless, did not produce it by reason of causes independent of his will. (Art. 3, Penal Code.)
We find no merit in the first assignment of error.
In regard to the second, it appears beyond a reasonable doubt that the facts enumerated above constitute the crime of frustrated murder.
With the exception of the qualifying circumstance of treachery, we find no other aggravating circumstance.
The judgment appealed from being in accordance with the law and the facts proven, the same is hereby affirmed in all its parts costs against the
appellant. So ordered.
Avanceña, C.J., Street, Villamor, Ostrand, Johns and Villa-Real JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-38511 October 6, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
FRANCISCO CAGOCO Y RAMONES (alias FRANCISCO CAGURO, alias FRANCISCO ADMONES, alias BUCOY, alias FRISCO GUY), defendant-appellant.
VICKERS, J.:
The accused was charged in the Court of First Instance of Manila with the crime of asesinato, committed as follows:
That on or about the 24th day of July, 1932, in the City of Manila, Philippine Islands, the said accused did then and there willfully, unlawfully and
feloniously, without any just cause therefor and with intent to kill and treachery, assault and attack one Yu Lon by suddenly giving him a fist blow
on the back part of the head, under conditions which intended directly and especially to insure, the accomplishment of his purpose without risk to
himself arising from any defense the victim Yu Lon might make, thus causing him to fall on the ground as a consequence of which he suffered a
lacerated wound on the scalp and a fissured fracture on the left occipital region, which were necessarily mortal and which caused the immediate
death of the said Yu Lon.
After hearing the evidence, Judge Luis P. Torres found the defendant guilty as charged, and sentenced him to suffer reclusion perpetua, with the
accessory penalties of the law, to indemnify the heirs of the deceased Yu Lon in the sum of P1,000, without subsidiary imprisonment in case of
insolvency, and to pay the costs.
Appellant's attorney de oficio makes the following assignments of error:
1. The trial court erred in finding that the appellant the person who committed the assault on Yu Lon, the victim to the crime charged in the
information.
2. Assuming that the appellant is the person who committed the assault on Yu Lon (a fact which we specifically deny), the trial court erred in
finding that the appellant struck his supposed victim.
3. Assuming that the appellant is the person who committed the assault on Yu Lon, and that the appellant did strike his supposed victim (facts
which we specifically deny) the trial court erred in finding that the blow was dealt from the victim's rear.
4. The trial court erred in finding that the identity of the appellant was fully established.
5. Assuming that the four preceding errors assigned are without merit, the trial court erred in convicting the appellant of the crime of murder,
under article 248 of the Revised Penal Code, instead of convicting him of the crime of maltreatment, under article 266 of the said Code.
It appears from the evidence that about 8:30 on the night of July 24, 1932 Yu Lon and Yu Yee, father and son, stopped to talk on the sidewalk at the
corner of Mestizos and San Fernando Streets in the District of San Nicolas Yu Lon was standing near the outer edge of the sidewalk, with his back to
the street. While they were talking, a man passed back and forth behind Yu Lon once or twice, and when Yu Yee was about to take leave of his
father, the man that had been passing back the forth behind Yu Lon approached him from behind and suddenly and without warning struck him
with his fist on the back part of the head. Yu Lon tottered and fell backwards. His head struck the asphalt pavement; the lower part of his body fell
on the sidewalk. His assailants immediately ran away. Yu Yee pursued him through San Fernando, Camba, and Jaboneros Streets, and then lost
sight of him. Two other Chinese, Chin Sam and Yee Fung, who were walking along Calle Mestizos, saw the incident and joined him in the pursuit of
Yu Lon's assailant. The wounded man was taken to the Philippine General Hospital, were he died about midnight. A post-mortem examination was
made the next day by Dr. Anastacia Villegas, who found that the deceased had sustained a lacerated wound and fracture of the skull in the occipital
region, and that he had died from cerebral hemorrhage; that he had tuberculosis, though not in an advanced stage, and a tumor in the left kidney.
Yu Yee promptly reported the incident to the police, and about 3 o'clock the next morning Sergeant Sol Cruz and other detectives, accompanied by
Yu Yee, went to the scene of the crime and found blood stains in the street. Yu Yee said that he could recognize his father's assailant, and described
him as being about five feet in height, 25 or 30 years old, with long hair and wearing a suit of dark clothes. After Sergeant Sol Cruz had been
working on the case for three or four days he received information that the accused might be the person that had assaulted Yu Lon, and on August
4th the accused was arrested by detectives Manrique and Bustamante. He was wearing a dark wool suit. Yu Yee was immediately called to the
police station. The accused was placed near the middle of a line of some eleven persons that had been detained for investigation. They were
wearing different kinds of clothes. Yu Yee without hesitation pointed out the defendant as the person that had assaulted Yu Lon. He identified him
not only by his long hair combed towards the back and worn long on the sides in the form of side-whiskers (patillas), but also by his high cheek-
bones and the fact that his ears have no lobes. The defendant was identified at the trial not only by Yu Yee, but also by Chin Sam and Yee Fung.
With respect to the first four assignment of error, which raise questions of fact as to the identification of the accused, and whether or not be struck
the deceased, and if he did assault the deceased, whether he did so in a treacherous manner, we see no sufficient reason, after considering the
evidence and arguments of counsel, to doubt the correctness of the findings of the trial judge. The accused was identified by Yu Yee and two other
Chinese, and although Yu Yee may have overstated at the trial some of the facial peculiarities in the defendant that he claimed to have observed at
the time of the incident, it must be remembered that Yu Yee without hesitation picked the defendant out of a group of eleven persons as his
father's assailant, and that he had exceptional opportunities for observing his father's assailant, because while that person was walking back and
forth behind Yu Lon, Yu Yee was facing the assailant.
We find the testimony of the defendant and his witnesses as to the whereabouts of the defendant on the night in question unworthy of
credit.1awphil.net
The testimony of the three Chinese that a man struck the deceased and then ran away is corroborated by the testimony of a 15-year old boy,
Dominador Sales.
As to the contention that the deceased would have fallen on his face if he had been struck on the back of the head, the expert testimony shows
that in such a case a person instinctively makes an effort to preserve or regain his balance, and that as result thereof the deceased may have fallen
backwards. Another consideration is that sidewalks almost invariably slope towards the pavement, and this being true, when the deceased
straightened up, he naturally tended to fall backwards. The evidence leaves no room for doubt that the accused struck the deceased on the back of
the head, because when the deceased was assaulted he and Yu Yee were standing on the sidewalk, facing each other, and if the accused had not
struck the deceased on the back of the head, it would have been necessary for him to go between the deceased and Yu Yee. Since the accused
struck the deceased from behind and without warning, he acted with treachery. "There is treachery when the offender commits any of the crimes
against the person, employing means, methods, or forms in the execution thereof which tend directly and especially to insure its execution,
without risk to himself arising from the defense which the offended party might make." (Article 14, No. 16, of the Revised Penal Code.)
The fourth assignment of error is a repetition of the first.
In the fifth assignment of error it is contended that the appellant if guilty at all, should be punished in accordance with article 266 of the Revised
Penal Code, or for slight physical injuries instead of murder.
Paragraph No. 1 of article 4 of the Revised Penal Code provide 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; but in order that a person may be criminally liable for a felony different
from that which he proposed to commit, it is indispensable that the two following requisites be present, to wit: (a) That a felony was committed;
and (b) that the wrong done to the aggrieved person be the direct consequence of the crime committed by the offender. U.S. vs. Brobst, 14 Phil.,
310; U.S. vs. Mallari, 29 Phil., 14 U.S. vs. Diana, 32 Phil., 344.)
In the Brobst case, supra, it was held that death may result from a blow over or near the heart or in the abdominal region, notwithstanding the fact
that the blow leaves no outward mark of violence; that where death result as the direct consequence of the use of illegal violence, the mere fact
that the diseased or weakened condition of the injured person contributed to his death, does not relieve the illegal aggressor of criminal
responsibility; that one is not relieved, under the law in these Islands, from criminal liability for the natural consequences of one's illegal acts,
merely because one does not intend to produce such consequences; but that in such cases, the lack of intention, while it does not exempt from
criminal liability, is taken into consideration as an extenuating circumstance. (U.S. vs. Luciano, 2 Phil., 96.)
The reasoning of the decisions cited is applicable to the case at bar. There can be no reasonable doubt as to the cause of the death of Yu Lon. There
is nothing to indicate that it was due to some extraneous case. It was clearly the direct consequence of defendants felonious act, and the fact that
the defendant did not intend to cause so great an injury does not relieve him from the consequence of his unlawful act, but is merely a mitigating
circumstance (U.S. vs. Rodriguez, 23 Phil., 22).
The next question is whether the crime committed by the defendant should be classified as homicide or murder. Can the defendant be convicted of
murder when he did not intend to kill the deceased?
We have seen that under the circumstances of this case the defendant is liable for the killing of Yu Lon, because his death was the direct
consequence of defendant's felonious act of striking him on the head. If the defendant had not committed the assault in a treacherous manner. he
would nevertheless have been guilty of homicide, although he did not intend to kill the deceased; and since the defendant did commit the crime
with treachery, he is guilty of murder, because of the presence of the qualifying circumstance of treachery.
The Supreme Court of Spain has held that there is no incompatibility, moral or legal, between alevosia and the mitigating circumstance of not
having intended to cause so great an injury:
Considering that there is no moral or legal incompatibility between treachery and the mitigating circumstance No. 3 of article 9 of the Penal Code,
because the former depends upon the manner of execution of the crime and the latter upon the tendency of the will towards a definite purpose,
and therefore there is no obstacle, in case treacherous means, modes or forms are employed, to the appreciation of the first of said circumstances
and simultaneously of the second if the injury produced exceeds the limits intended by the accused; and for that reason it cannot be held in the
instant case that this mitigating circumstances excludes treachery, or that the accused, being chargeable with the death of the offended party,
should not be liable due to the voluntary presence of treachery in the act perpetrated, although with mitigation corresponding to the disparity
between the act intended and the act consummated, etc. (Decision of May 10, 1905, Gazette of April 20, 906; Viada: 5th edition, Vol. 2, p. 156.)
In the case of the United States vs. Candelaria (2 Phil., 104), this court speaking through Chief Justice Arellano said:
In trying Jacinto to a tree the three defendants acted treacherously (alevosamente). Whether it was to prevent him from making resistance,
whether it was to torture him for the purpose of making him give information, or whether it was for the purpose of inflicting further punishment,
the fact is that by this means the defendants secured themselves against any risk which might have arisen from an attempt at self-defense on the
part of the victim. We are of opinion that they had no intention to cause so great an evil as that which resulted, but this does not neutralize that
other qualifying circumstance of the resulting death, because if there was no alevosia for the purpose of killing there was alevosia for the purpose
of the illtreating. The means employed were not made use of for the precise purpose of making certain the death of Jacinto de Jesus but as a safe
means of illtreating him without risk to the persons who were doing so. If by this means the ill treatment was aggravated, it follows that it is a
qualifying circumstances in the death which resulted. It was not a condition of the purpose, but it was a condition of the criminal act itself, in
whatever sense this be taken.
The penalty of murder (article 248 of the Revised Penal Code) is reclusion temporal in its maximum period to death, and there being present in this
case one mitigating and no aggravating circumstance the prison sentence of the appellant is reduced to seventeen years, four months, and one day
of reclusion temporal. As thus modified, the decision appealed from is affirmed, with the costs against the appellant.
Avanceña, C.J., Street, Abad Santos, and Butte, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1896 February 16, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RAFAEL BALMORES Y CAYA, defendant-appellant.
OZAETA, J.:
Appellant, waiving the right to be assisted by counsel, pleaded guilty to the following information filed against him in the Court of First Instance of
Manila:
The undersigned accuses Rafael Balmores y Caya of attempted estafa through falsification of a security, committed as follows:
That on or about the 22nd day of September, 1947, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and
feloniously commence the commission of the crime of estafa through falsification of a security directly by overt acts, to wit; by then and there
tearing off at the bottom in a cross-wise direction a portion of a genuine 1/8 unit Philippine Charity Sweepstakes ticket thereby removing the true
and real unidentified number of same and substituting and writing in ink at the bottom on the left side of said ticket the figure or number 074000
thus making the said ticket bear the said number 074000, which is a prize-winning number in the Philippine Charity Sweepstakes draw last June 29,
1947, and presenting the said ticket so falsified on said date, September 22, 1947, in the Philippine Charity Sweepstakes Office for the purpose of
exchanging the same for the corresponding cash that said number has won, fraudulently pretending in said office that the said 1/8 unit of a
Philippine Charity Sweepstakes ticket is genuine and that he is entitled to the corresponding amount of P359.55 so won by said ticket in the
Philippine Charity Sweepstakes draw on said date, June 29, 1947, but the said accused failed to perform all the acts of execution which would have
produce the crime of estafa through falsification of a security as a consequence by reason of some causes other than this spontaneous desistance,
to wit: one Bayani Miller, an employee to whom the said accused presented said ticket in the Philippine Charity Sweepstakes Office discovered that
the said ticket as presented by the said accused was falsified and immediately thereafter he called for a policeman who apprehended and arrested
the said accused right then and there.
Contrary to law.
(Sgd.) LORENZO RELOVA
Assistant City Fiscal
and was sentenced by Judge Emilio Pena to suffer not less than 10 years and 1 day of prision mayor and not more than 12 years and 1 day of
reclusion temporal, and to pay a fine of P100 and the costs.
From that sentence he appealed to this court, contending (1) that the facts and (2) that the trial court lacked jurisdiction to convict him on a plea of
guilty because, being illiterate, he was not assisted by counsel.
In support of the first contention, counsel for the appellant argues that there could be so could be no genuine 1/8 unit Philippine Charity
Sweepstakes ticket for the June 29, 1947, draw; that this court has judicial notice that the Philippine Charity Sweepstakes Office issued only four
1/4 units for each ticket for the said draw of June 29, 1947; that the information does not show that the true and real unidentified number of the
ticket alleged to have been torn was not and could not be 074000; that the substitution and writing in ink of the said number 074000 was not
falsification where the true and real number of the ticket so torn was 074000.
This contention is based on assumption not borne out by the record. The ticket alleged to have been falsified is before us and it appears to be a 1/8
unit. We cannot take judicial notice of what is not of common knowledge. If relevant, should have been proved. But if it is true that the Philippine
Charity Sweepstakes Office did not issue 1/8 but only 1/4 units of tickets for the June 29, 1947, draw, that would only strengthen the theory of the
prosecution that the 1/8 unit of a ticket which appellant presented to the Philippine Charity Sweepstakes Office was spurious. The assumption that
the true and real unidentified number of the ticket alleged to have been torn was the winning number 074000, is likewise not supported by the
record. The information to which appellant pleaded guilty alleged that the appellant removed the true and real unidentified number of the ticket
and substituted and wrote in ink at the bottom on the left side of said ticket the figure or number 074000. It is obvious that there would have been
no need of removal and substitution if the original number on the ticket was the same as that which appellant wrote in ink in lieu thereof.
The second contention appears to be based on a correct premises but wrong conclusion. The fact that appellant was illiterate did not deprive the
trial court of jurisdiction assisted by counsel. The decision expressly states that appellant waived the right to be assisted by counsel, and we know
of no law against such waiver.
It may be that appellant was either reckless or foolish in believing that a falsification as patent as that which he admitted to have perpetrated
would succeed; but the recklessness and clumsiness of the falsification did not make the crime impossible within the purview of paragraph 2,
article 4, in relation to article 59, of the Revised Penal Code. Examples of an impossible crime, which formerly was not punishable but is now under
article 59 of the Revised Penal Code, are the following: (1) When one tries to kill another by putting in his soup a substance which he believes to be
arsenic when in fact it is common salt; and (2) when one tries to murder a corpse. (Guevara, Commentaries on the Revised Penal Code, 4th ed.,
page 15; decision, Supreme Court of Spain, November 26, 1879; 12 Jur. Crim., 343.) Judging from the appearance of the falsified ticket in question,
we are not prepared to say that it would have been impossible for the appellant to consummate the crime of estafa thru falsification of said ticket
if the clerk to whom it was presented for the payment had not exercised due care.
The penalty imposed by article 166 for the forging or falsification of "treasury or bank notes or certificates or other obligations and securities" is
reclusion temporal in its minimum period and a fine not to exceed P10,000, if the document which has been falsified, counterfeited, or altered is an
obligation or security of the United States or of the Philippine Islands. This being a complex crime of attempted estafa through falsification of an
obligation or security of the Philippines, the penalty should be imposed in its maximum period in accordance with article 48. Taking into
consideration the mitigating circumstance of lack of instruction, and applying the Indeterminate Sentence Law, the minimum cannot be lower than
prision mayor in its maximum period, which is 10 years and 1 day to 12 years. It results, therefore, that the penalty imposed by the trial court is
correct.
The alteration, or even destruction, of a losing sweepstakes ticket could cause no harm to anyone and would not constitute a crime were it not for
the attempt to cash the ticket so altered as a prize-winning number. So in the ultimate analysis appellant's real offense was the attempt to commit
estafa (punishable with eleven days of arresto menor); but technically and legally he has to suffer for the serious crime of falsification of a
government obligation. We realize that the penalty is too severe, considering all the circumstances of the case, but we have no discretion to
impose a lower penalty than authorized by law. The exercise of clemency and not in this court.
We are constrained to affirm the sentence appealed from, with costs against the appellant.
Moran, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes and Torres, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 103119 October 21, 1992
SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

CAMPOS, JR., J.:


Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of Appeals 1 affirming in toto the judgment of the Regional Trial
Court, Branch XIV, Oroquieta City, finding him guilty of the crime of attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig went to Salvador Mandaya's house in
Katugasan, Lopez Jaena, Misamis Occidental and asked him to go with them to the house of Bernardina Palangpangan. Thereafter, Mandaya and
Intod, Pangasian, Tubio and Daligdig had a meeting with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to be killed because
of a land dispute between them and that Mandaya should accompany the four (4) men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all armed with firearms, arrived at
Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the instance of his companions, Mandaya pointed the location of
Palangpangan's bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said room. It turned out, however, that Palangpangan was
in another City and her home was then occupied by her son-in-law and his family. No one was in the room when the accused fired the shots. No
one was hit by the gun fire.
Petitioner and his companions were positively identified by witnesses. One witness testified that before the five men left the premises, they
shouted: "We will kill you (the witness) and especially Bernardina Palangpangan and we will come back if (sic) you were not injured". 2
After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as affirmed by the Court of Appeals, holding that
Petitioner was guilty of attempted murder. Petitioner seeks from this Court a modification of the judgment by holding him liable only for an
impossible crime, citing Article 4(2) of the Revised Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. — Criminal Responsibility shall be incurred:
xxx xxx xxx
2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or ineffectual means.
Petitioner contends that, Palangpangan's absence from her room on the night he and his companions riddled it with bullets made the crime
inherently impossible.
On the other hand, Respondent People of the Philippines argues that the crime was not impossible. Instead, the facts were sufficient to constitute
an attempt and to convict Intod for attempted murder. Respondent alleged that there was intent. Further, in its Comment to the Petition,
respondent pointed out that:
. . . The crime of murder was not consummated, not because of the inherent impossibility of its accomplishment (Art. 4(2), Revised Penal Code),
but due to a cause or accident other than petitioner's and his accused's own spontaneous desistance (Art. 3., Ibid.) Palangpangan did not sleep at
her house at that time. Had it not been for this fact, the crime is possible, not impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the Old Penal Code where:
. . . it was necessary that the execution of the act has been commenced, that the person conceiving the idea should have set about doing the deed,
employing appropriate means in order that his intent might become a reality, and finally, that the result or end contemplated shall have been
physically possible. So long as these conditions were not present, the law and the courts did not hold him criminally liable. 5
This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the Positivist School, recognizes in the offender
his formidability, 7 and now penalizes an act which were it not aimed at something quite impossible or carried out with means which prove
inadequate, would constitute a felony against person or against property. 8 The rationale of Article 4(2) is to punish such criminal tendencies. 9
Under this article, the act performed by the offender cannot produce an offense against person or property because: (1) the commission of the
offense is inherently impossible of accomplishment: or (2) the means employed is either (a) inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission of the offense is inherently impossible of accomplishment is the focus of this
petition. To be impossible under this clause, the act intended by the offender must be by its nature one impossible of accomplishment. 11 There
must be either impossibility of accomplishing the intended act 12 in order to qualify the act an impossible crime.
Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. 13 Thus:
Legal impossibility would apply to those circumstances where (1) the motive, desire and expectation is to perform an act in violation of the law; (2)
there is intention to perform the physical act; (3) there is a performance of the intended physical act; and (4) the consequence resulting from the
intended act does not amount to a crime. 14
The impossibility of killing a person already dead 15 falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime. 16 One example is the man who puts his hand in the coat pocket of another with the intention to steal the
latter's wallet and finds the pocket empty. 17
The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would be, although in reality, the victim was not
present in said place and thus, the petitioner failed to accomplish his end.
One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused, with intent to kill, aimed and fired at the
spot where he thought the police officer would be. It turned out, however, that the latter was in a different place. The accused failed to hit him and
to achieve his intent. The Court convicted the accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where the attacking party imagined where he was, and where the bullet pierced the roof, renders it no
less an attempt to kill. It is well settled principle of criminal law in this country that where the criminal result of an attempt is not accomplished
simply because of an obstruction in the way of the thing to be operated upon, and these facts are unknown to the aggressor at the time, the
criminal attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim because the latter did not pass by the place
where he was lying-in wait, the court held him liable for attempted murder. The court explained that:
It was no fault of Strokes that the crime was not committed. . . . It only became impossible by reason of the extraneous circumstance that Lane did
not go that way; and further, that he was arrested and prevented from committing the murder. This rule of the law has application only where it is
inherently impossible to commit the crime. It has no application to a case where it becomes impossible for the crime to be committed, either by
outside interference or because of miscalculation as to a supposed opportunity to commit the crime which fails to materialize; in short it has no
application to the case when the impossibility grows out of extraneous acts not within the control of the party.
In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was nothing to rob. In disposing of the case,
the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves punishment by reason of his criminal intent, no one can seriously doubt that the protection of
the public requires the punishment to be administered, equally whether in the unseen depths of the pocket, etc., what was supposed to exist was
really present or not. The community suffers from the mere alarm of crime. Again: Where the thing intended (attempted) as a crime and what is
done is a sort to create alarm, in other words, excite apprehension that the evil; intention will be carried out, the incipient act which the law of
attempt takes cognizance of is in reason committed.
In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that the latter was inside. However, at that
moment, the victim was in another part of the house. The court convicted the accused of attempted murder.
The aforecited cases are the same cases which have been relied upon by Respondent to make this Court sustain the judgment of attempted
murder against Petitioner. However, we cannot rely upon these decisions to resolve the issue at hand. There is a difference between the Philippine
and the American laws regarding the concept and appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and made the punishable. Whereas, in the
United States, the Code of Crimes and Criminal Procedure is silent regarding this matter. What it provided for were attempts of the crimes
enumerated in the said Code. Furthermore, in said jurisdiction, the impossibility of committing the offense is merely a defense to an attempt
charge. In this regard, commentators and the cases generally divide the impossibility defense into two categories: legal versus factual impossibility.
22 In U.S. vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is not a defense. If the crime could have been committed had the circumstances been as
the defendant believed them to be, it is no defense that in reality the crime was impossible of commission.
Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an attempt. In U.S. vs. Berrigan, 24 the
accused was indicated for attempting to smuggle letters into and out of prison. The law governing the matter made the act criminal if done without
knowledge and consent of the warden. In this case, the offender intended to send a letter without the latter's knowledge and consent and the act
was performed. However, unknown to him, the transmittal was achieved with the warden's knowledge and consent. The lower court held the
accused liable for attempt but the appellate court reversed. It held unacceptable the contention of the state that "elimination of impossibility as a
defense to a charge of criminal attempt, as suggested by the Model Penal Code and the proposed federal legislation, is consistent with the
overwhelming modern view". In disposing of this contention, the Court held that the federal statutes did not contain such provision, and thus,
following the principle of legality, no person could be criminally liable for an act which was not made criminal by law. Further, it said:
Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the offense of attempt irrespective of legal
impossibility until such time as such legislative changes in the law take place, this court will not fashion a new non-statutory law of criminal
attempt.
To restate, in the United States, where the offense sought to be committed is factually impossible or accomplishment, the offender cannot escape
criminal liability. He can be convicted of an attempt to commit the substantive crime where the elements of attempt are satisfied. It appears,
therefore, that the act is penalized, not as an impossible crime, but as an attempt to commit a crime. On the other hand, where the offense is
legally impossible of accomplishment, the actor cannot be held liable for any crime — neither for an attempt not for an impossible crime. The only
reason for this is that in American law, there is no such thing as an impossible crime. Instead, it only recognizes impossibility as a defense to a crime
charge — that is, attempt.
This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of accomplishing the criminal intent is not
merely a defense, but an act penalized by itself. Furthermore, the phrase "inherent impossibility" that is found in Article 4(2) of the Revised Penal
Code makes no distinction between factual or physical impossibility and legal impossibility. Ubi lex non distinguit nec nos distinguere debemos.
The factual situation in the case at bar present a physical impossibility which rendered the intended crime impossible of accomplishment. And
under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to make the act an impossible crime.
To uphold the contention of respondent that the offense was Attempted Murder because the absence of Palangpangan was a supervening cause
independent of the actor's will, will render useless the provision in Article 4, which makes a person criminally liable for an act "which would be an
offense against persons or property, were it not for the inherent impossibility of its accomplishment . . ." In that case all circumstances which
prevented the consummation of the offense will be treated as an accident independent of the actor's will which is an element of attempted and
frustrated felonies.
WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent Court of Appeals holding Petitioner guilty of
Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of an impossible crime as defined and penalized in Articles 4, paragraph
2, and 59 of the Revised Penal Code, respectively. Having in mind the social danger and degree of criminality shown by Petitioner, this Court
sentences him to suffer the penalty of six (6) months of arresto mayor, together with the accessory penalties provided by the law, and to pay the
costs.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 95322 March 1, 1993


PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PABLITO DOMASIAN AND DR. SAMSON TAN, accused-appellant.
CRUZ, J.:
The boy was detained for only about three hours and was released even before his parents received the ransom note. But it spawned a protracted
trial spanning all of 8 years and led to the conviction of the two accused.1
The victim was Enrico Paulo Agra, who was 8 years old at the time of the incident in question. The accused were Pablito Domasian and Samson Tan,
the latter then a resident physician in the hospital owned by Enrico's parents. They were represented by separate lawyers at the trial and filed
separate briefs in this appeal.
The evidence of the prosecution showed that in the morning of March 11, 1982, while Enrico was walking with a classmate along Roque street in
the poblacion of Lopez, Quezon, he was approached by a man who requested his assistance in getting his father's signature on a medical
certificate. Enrico agreed to help and rode with the man in a tricycle to Calantipayan, where he waited outside while the man went into a building
to get the certificate. Enrico became apprehensive and started to cry when, instead of taking him to the hospital, the man flagged a minibus and
forced him inside, holding him firmly all the while. The man told him to stop crying or he would not be returned to his father. When they alighted at
Gumaca, they took another tricycle, this time bound for the municipal building from where they walked to the market. Here the man talked to a
jeepney driver and handed him an envelope addressed to Dr. Enrique Agra, the boy's father. The two then boarded a tricycle headed for San
Vicente, with the man still firmly holding Enrico, who continued crying. This aroused the suspicion of the driver, Alexander Grate, who asked the
man about his relationship with the boy. The man said he and the boy were brothers, making Grate doubly suspicious because of the physical
differences between the two and the wide gap between their ages. Grate immediately reported the matter to two barangay tanods when his
passengers alighted from the tricycle. Grate and the tanods went after the two and saw the man dragging the boy. Noticing that they were being
pursued, the man told Enrico to run fast as their pursuers might behead them. Somehow, the man managed to escape, leaving Enrico behind.
Enrico was on his way home in a passenger jeep when he met his parents, who were riding in the hospital ambulance and already looking for him.2
At about 1:45 in the afternoon of the same day, after Enrico's return, Agra received an envelope containing a ransom note. The note demanded P1
million for the release of Enrico and warned that otherwise the boy would be killed. Agra thought the handwriting in the note was familiar. After
comparing it with some records in the hospital, he gave the note to the police, which referred it to the NBI for examination.3
The test showed that it bad been written by Dr. Samson Tan.4 On the other hand, Enrico was shown a folder of pictures in the police station so be
could identify the man who had detained him, and he pointed to the picture of Pablito Domasian.5 Domasian and Tan were subsequently charged
with the crime of kidnapping with serious illegal detention in the Regional Trial Court of Quezon.6
The defense of both accused was denial and alibi. Domasian claimed that at the time of the incident he was watching a mahjong game in a friend's
house and later went to an optical clinic with his wife for the refraction of his eyeglasses.7 Dr. Tan for his part said he was in Manila.8
After trial Judge Enrico A. Lanzanas found both accused guilty as charged and sentenced them to suffer the penalty of reclusion perpetua and all
accessory penalties. They were also required to pay P200,000.00 to Dr. and Mrs. Enrique Agra as actual and moral damages and attorney's fees.
In the present appeal, the accused-appellants reiterate their denial of any participation in the incident in question. They belittle the credibility of
the prosecution witnesses and submit that their own witnesses are more believable. Tan specifically challenges the findings of the NBI and offers
anew the opposite findings of the PC/INP showing that he was not the writer of the ransom note. He maintains that in any case, the crime alleged
is not kidnapping with serious illegal detention as no detention in an enclosure was involved. If at all, it should be denominated and punished only
as grave coercion. Finally, both Domasian and Tan insist that there is no basis for the finding of a conspiracy between them to make them criminally
liable in equal degree.
First, on the credibility of the witnesses. This is assessed in the first instance by the trial judge, whose finding in this regard is received with much
respect by the appellate court because of his opportunity to directly observe the demeanor of the witnesses on the stand.
In the case at bar, Judge Lanzanas relied heavily on the testimony of the victim himself, who positively identified Domasian as the person who
detained him for three hours. The trial court observed that the boy was "straight-forward, natural and consistent" in the narration of his detention.
The boy's naivete made him even more believable. Tirso Ferreras, Enrico's classmate and also his age, pointed to Domasian with equal certainty, as
the man who approached Enrico when they were walking together that morning of March 11, 1982. Grate, the tricycle driver who suspected
Enrico's companion and later chased him, was also positive in identifying Domasian. All these three witnesses did not know Domasian until that
same morning and could have no ill motive in testifying against him. By contrast, Eugenia Agtay, who testified for the defense, can hardly be
considered a disinterested witness because she admitted she had known Domasian for 3 years.
The defense asks why Domasian openly took Enrico to several public places if the intention was to kidnap and detain him. That is for Domasian
himself to answer. We do no have to probe the reasons for the irrational conduct of an accused. The more important question, as we see it, is why
Domasian detained Enrico in the first place after pretending he needed the boy's help. That is also for Domasian to explain. As for Enrico's alleged
willingness to go with Domasian, this was manifested only at the beginning, when he believed the man sincerely needed his assistance. But he was
soon disabused. His initial confidence gave way to fear when Domasian, after taking him so far away from the hospital where he was going,
restrained and threatened him if he did not stop crying.
Domasian's alibi cannot stand against his positive identification by Enrico, Grate and Ferreras, let alone the contradictions made by his
corroborating witness, Dr. Irene Argosino, regarding the time he was in the optical clinic and the manner of his payment for the refraction.9 Tan's
alibi is not convincing either. The circumstance that he may have been in Manila at the time of the incident does not prove that he could not have
written the ransom note except at that time.
Concerning the note, Rule 132, Section 22, of the Rules of Court provides as follows:
The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person and has seen the person write, or
has seen writing purporting to be his upon which the witness has acted or been charged and has thus acquired knowledge of the handwriting of
such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court with writings admitted or
treated as genuine by the party against whom the evidence is offered or proved to be genuine to the satisfaction of the judge.
Two expert witnesses were presented in the case at bar, one from the NBI, 10 who opined that the ransom note and the standard documents were
written by one and the same person, and another from the PC/INP 11 who expressed a contrary conclusion. The trial court chose to believe the NBI
expert because his examination and analysis "was more comprehensive than the one conducted by the PC/INP handwriting expert, who virtually
limited his reliance on the perceived similarities and dissimilarities in the pattern and style of the writing, thereby disregarding the basic principle in
handwriting identification that it is not the form alone nor anyone feature but rather a combination of all the qualities that identify."
We have held that the value of the opinion of a handwriting expert depends not upon his mere statements of whether a writing is genuine or false,
but upon the assistance he may afford in pointing out distinguishing marks, characteristics and discrepancies in and between genuine and false
specimens of writing which would ordinarily escape notice or detection from an unpracticed observer. 12 The test of genuineness ought to be the
resemblance, not the formation of letters in some other specimens but to the general character of writing, which is impressed on it as the
involuntary and unconscious result
of constitution, habit or other permanent course, and is, therefore itself permanent. 13
Presented with the conflicting opinions of the witnesses in the case at bar, the Court feels that the scales should tilt in favor of the prosecution.
Significantly, the NBI opinion was bolstered by the testimony of Agra, who believed that the ransom note was written by Tan, with whose
handwriting he was familiar because they had been working in the hospital for four years and he had seen that handwriting every day in Tan's
prescriptions and daily reports. 14
Cesar v. Sandiganbayan 15 is not applicable because that case involved a forgery or the deliberate imitation of another person's signature. In the
case before us, there was in fact an effort to disguise the ransom note writer's penmanship to prevent his discovery.
As for the nature of the crime committed, Article 267 of the Revised Penal Code provides as follows:
Art. 267. Kidnapping and serious illegal detention. — Any private individual who shall kidnap or detain another, or in any manner deprive him of his
liberty, shall suffer the penalty of reclusion perpetua to death:
1. If the kidnapping or detention shall have lasted more than five days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; of if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, female or a public officer.
The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other
person; even if none of the circumstances above-mentioned were present in the commission of the offense.
Contrary to Tan's submission, this crime may consist not only in placing a person in an enclosure but also in detaining him or depriving him in any
manner of his liberty. 16 In the case at bar, it is noted that although the victim was not confined in an enclosure, he was deprived of his liberty
when Domasian restrained him from going home and dragged him first into the minibus that took them to the municipal building in Gumaca,
thence to the market and then into the tricycle bound for San Vicente. The detention was committed by Domasian, who was a private individual,
and Enrico was a minor at that time. The crime clearly comes under Par. 4 of the above-quoted article.
Tan claims that the lower court erred in not finding that the sending of the ransom note was an impossible crime which he says is not punishable.
His reason is that the second paragraph of Article 4 of the Revised Penal Code provides that criminal liability shall be incurred "by any person
performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on
account of the employment of inadequate or ineffectual means." As the crime alleged is not against persons or property but against liberty, he
argues that it is not covered by the said provision.
Tan conveniently forgets the first paragraphs of the same article, which clearly applies to him, thus:
Art. 4. Criminal liability. — Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended.
xxx xxx xxx
Even before the ransom note was received, the crime of kidnapping with serious illegal detention had already been committed. The act cannot be
considered an impossible crime because there was no inherent improbability of its accomplishment or the employment of inadequate or
ineffective means. The delivery of the ransom note after the rescue of the victim did not extinguish the offense, which had already been
consummated when Domasian deprived Enrico of his liberty. The sending of the ransom note would have had the effect only of increasing the
penalty to death under the last paragraph of Article 267 although this too would not have been possible under the new Constitution.
On the issue of conspiracy, we note first that it exists when two or more persons come to an agreement concerning the commission of a felony and
decide to commit it, whether they act through physical volition of one or all, proceeding severally or collectively. 17
It is settled that conspiracy can be inferred from and proven by the acts of the accused themselves when said acts point to a joint purpose and
design, concerted action and community of interests. 18 In the instant case, the trial court correctly held that conspiracy was proved by the act of
Domasian in detaining Enrico; the writing of the ransom note by Tan; and its delivery by Domasian to Agra. These acts were complementary to each
other and geared toward the attainment of the common ultimate objective, viz., to extort the ransom of P1 million in exchange for Enrico's life.
The motive for the offense is not difficult to discover. According to Agra, Tan approached him six days before the incident happened and requested
a loan of at least P15,000.00. Agra said he had no funds at that moment and Tan did not believe him, angrily saying that Agra could even raise a
million pesos if he really wanted to help. 19 The refusal obviously triggered the plan to kidnap Enrico and demand P1 million for his release.
The constitutional issues raised by Domasian do not affect the decision in this case. His claim that he was arrested without warrant and then
tortured and held incommunicado to extort a confession from him does not vitiate his conviction. He never gave any confession. As for the
allegation that the seizure of the documents used for comparison with the ransom note was made without a search warrant, it suffices to say that
such documents were taken by Agra himself and not by the NBI agents or other police authorities. We held in the case of People vs. Andre Marti,
20 that the Bill of Rights cannot be invoked against acts of private individuals, being directed only against the government and its law-enforcement
agencies and limitation on official action.
We are satisfied that Tan and Domasian, in conspiracy with each other, committed the crime of kidnapping as defined and penalized under Article
267 of the Revised Penal Code and so deserve the penalty imposed upon them by the trial court.
WHEREFORE, the appealed decision is AFFIRMED, with costs against the accused-appellants.
Let a copy of this decision be sent to the Commission on Human Rights for investigation of the alleged violation of the constitutional rights of
Pablito Domasian.
SO ORDERED.
Griño-Aquino, Bellosillo and Quiason, JJ., concur.
Republic of the Philippines
Supreme Court
Manila
THIRD DIVISION
G.R. No. 162540
GEMMA T. JACINTO,Petitioner,
- versus -
PEOPLE OF THE PHILIPPINES,Respondent.
x-----------------------------------------------------------------------------------------x

DECISION
PERALTA, J.:

Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking the reversal of the Decision[1] of the Court of Appeals
(CA) in CA-G.R. CR No. 23761 dated December 16, 2003, affirming petitioner's conviction of the crime of Qualified Theft, and its Resolution[2] dated
March 5, 2004 denying petitioner's motion for reconsideration.

Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and Jacqueline Capitle, was charged before the Regional Trial
Court (RTC) of Caloocan City, Branch 131, with the crime of Qualified Theft, allegedly committed as follows:

That on or about and sometime in the month of July 1997, in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring together and mutually helping one another, being then all employees of MEGA FOAM INTERNATIONAL INC.,
herein represented by JOSEPH DYHENGCO Y CO, and as such had free access inside the aforesaid establishment, with grave abuse of trust and
confidence reposed upon them with intent to gain and without the knowledge and consent of the owner thereof, did then and there willfully,
unlawfully and feloniously take, steal and deposited in their own account, Banco De Oro Check No. 0132649 dated July 14, 1997 in the sum of
P10,000.00, representing payment made by customer Baby Aquino to the Mega Foam Int'l. Inc. to the damage and prejudice of the latter in the
aforesaid stated amount of P10,000.00.

CONTRARY TO LAW.[3]

The prosecution's evidence, which both the RTC and the CA found to be more credible, reveals the events that transpired to be as follows.

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed petitioner Banco De Oro (BDO) Check Number 0132649
postdated July 14, 1997 in the amount of P10,000.00. The check was payment for Baby Aquino's purchases from Mega Foam Int'l., Inc., and
petitioner was then the collector of Mega Foam. Somehow, the check was deposited in the Land Bank account of Generoso Capitle, the husband of
Jacqueline Capitle; the latter is the sister of petitioner and the former pricing, merchandising and inventory clerk of Mega Foam.

Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call sometime in the middle of July from one of their
customers, Jennifer Sanalila. The customer wanted to know if she could issue checks payable to the account of Mega Foam, instead of issuing the
checks payable to CASH. Said customer had apparently been instructed by Jacqueline Capitle to make check payments to Mega Foam payable to
CASH. Around that time, Ricablanca also received a phone call from an employee of Land Bank, Valenzuela Branch, who was looking for Generoso
Capitle. The reason for the call was to inform Capitle that the subject BDO check deposited in his account had been dishonored.

Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, asking the latter to inform Jacqueline Capitle about
the phone call from Land Bank regarding the bounced check. Ricablanca explained that she had to call and relay the message through Valencia,
because the Capitles did not have a phone; but they could be reached through Valencia, a neighbor and former co-employee of Jacqueline Capitle
at Mega Foam.

Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Ricablanca to ask Baby Aquino to replace the check with cash.
Valencia also told Ricablanca of a plan to take the cash and divide it equally into four: for herself, Ricablanca, petitioner Jacinto and Jacqueline
Capitle. Ricablanca, upon the advise of Mega Foam's accountant, reported the matter to the owner of Mega Foam, Joseph Dyhengco.

Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed handed petitioner a BDO check for P10,000.00
sometime in June 1997 as payment for her purchases from Mega Foam.[4] Baby Aquino further testified that, sometime in July 1997, petitioner
also called her on the phone to tell her that the BDO check bounced.[5] Verification from company records showed that petitioner never remitted
the subject check to Mega Foam. However, Baby Aquino said that she had already paid Mega Foam P10,000.00 cash in August 1997 as replacement
for the dishonored check.[6]

Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO check in his bank account, but explained that the check
came into his possession when some unknown woman arrived at his house around the first week of July 1997 to have the check rediscounted. He
parted with his cash in exchange for the check without even bothering to inquire into the identity of the woman or her address. When he was
informed by the bank that the check bounced, he merely disregarded it as he didnt know where to find the woman who rediscounted the check.

Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and worked out an entrapment operation with its agents.
Ten pieces of P1,000.00 bills provided by Dyhengco were marked and dusted with fluorescent powder by the NBI. Thereafter, the bills were given
to Ricablanca, who was tasked to pretend that she was going along with Valencia's plan.

On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was then holding the bounced BDO check, handed over
said check to Ricablanca. They originally intended to proceed to Baby Aquino's place to have the check replaced with cash, but the plan did not
push through. However, they agreed to meet again on August 21, 2007.

On the agreed date, Ricablanca again went to petitioners house, where she met petitioner and Jacqueline Capitle. Petitioner, her husband, and
Ricablanca went to the house of Anita Valencia; Jacqueline Capitle decided not to go with the group because she decided to go shopping. It was
only petitioner, her husband, Ricablanca and Valencia who then boarded petitioner's jeep and went on to Baby Aquino's factory. Only Ricablanca
alighted from the jeep and entered the premises of Baby Aquino, pretending that she was getting cash from Baby Aquino. However, the cash she
actually brought out from the premises was the P10,000.00 marked money previously given to her by Dyhengco. Ricablanca divided the money and
upon returning to the jeep, gave P5,000.00 each to Valencia and petitioner. Thereafter, petitioner and Valencia were arrested by NBI agents, who
had been watching the whole time.
Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found fluorescent powder on the palmar and dorsal aspects of
both of their hands. This showed that petitioner and Valencia handled the marked money. The NBI filed a criminal case for qualified theft against
the two and one Jane Doe who was later identified as Jacqueline Capitle, the wife of Generoso Capitle.

The defense, on the other hand, denied having taken the subject check and presented the following scenario.

Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30, 1997, but claimed that she had stopped collecting
payments from Baby Aquino for quite some time before her resignation from the company. She further testified that, on the day of the arrest,
Ricablanca came to her mothers house, where she was staying at that time, and asked that she accompany her (Ricablanca) to Baby Aquino's
house. Since petitioner was going for a pre-natal check-up at the Chinese General Hospital, Ricablanca decided to hitch a ride with the former and
her husband in their jeep going to Baby Aquino's place in Caloocan City. She allegedly had no idea why Ricablanca asked them to wait in their jeep,
which they parked outside the house of Baby Aquino, and was very surprised when Ricablanca placed the money on her lap and the NBI agents
arrested them.
Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on June 30, 1997. It was never part of her job to collect
payments from customers. According to her, on the morning of August 21, 1997, Ricablanca called her up on the phone, asking if she (Valencia)
could accompany her (Ricablanca) to the house of Baby Aquino. Valencia claims that she agreed to do so, despite her admission during cross-
examination that she did not know where Baby Aquino resided, as she had never been to said house. They then met at the house of petitioner's
mother, rode the jeep of petitioner and her husband, and proceeded to Baby Aquino's place. When they arrived at said place, Ricablanca alighted,
but requested them to wait for her in the jeep. After ten minutes, Ricablanca came out and, to her surprise, Ricablanca gave her money and so she
even asked, What is this? Then, the NBI agents arrested them.

The trial of the three accused went its usual course and, on October 4, 1999, the RTC rendered its Decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De Jacinto y Latosa, Anita Busog De Valencia y Rivera and Jacqueline
Capitle GUILTY beyond reasonable doubt of the crime of QUALIFIED THEFT and each of them is hereby sentenced to suffer imprisonment of FIVE (5)
YEARS, FIVE (5) MONTHS AND ELEVEN (11) DAYS, as minimum, to SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS, as maximum.

SO ORDERED.[7]

The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the dispositive portion of which reads, thus:

IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that:

(a) the sentence against accused Gemma Jacinto stands;


(b) the sentence against accused Anita Valencia is reduced to 4 months arresto mayor medium.
(c) The accused Jacqueline Capitle is acquitted.

SO ORDERED.

A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for petitioner Gemma Tubale Jacinto, but the same was denied per
Resolution dated March 5, 2004.

Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the Decision and Resolution of the CA. The issues raised in
the petition are as follows:

1. Whether or not petitioner can be convicted of a crime not charged in the information;

2. Whether or not a worthless check can be the object of theft; and

3. Whether or not the prosecution has proved petitioner's guilt beyond


reasonable doubt.[8]

The petition deserves considerable thought.

The prosecution tried to establish the following pieces of evidence to constitute the elements of the crime of qualified theft defined under Article
308, in relation to Article 310, both of the Revised Penal Code: (1) the taking of personal property - as shown by the fact that petitioner, as collector
for Mega Foam, did not remit the customer's check payment to her employer and, instead, appropriated it for herself; (2) said property belonged
to another − the check belonged to Baby Aquino, as it was her payment for purchases she made; (3) the taking was done with intent to gain this is
presumed from the act of unlawful taking and further shown by the fact that the check was deposited to the bank account of petitioner's brother-
in-law; (4) it was done without the owners consent petitioner hid the fact that she had received the check payment from her employer's customer
by not remitting the check to the company; (5) it was accomplished without the use of violence or intimidation against persons, nor of force upon
things the check was voluntarily handed to petitioner by the customer, as she was known to be a collector for the company; and (6) it was done
with grave abuse of confidence petitioner is admittedly entrusted with the collection of payments from customers.

However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the personal property subject of the theft must have
some value, as the intention of the accused is to gain from the thing stolen. This is further bolstered by Article 309, where the law provides that the
penalty to be imposed on the accused is dependent on the value of the thing stolen.

In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same was apparently without value, as it was
subsequently dishonored. Thus, the question arises on whether the crime of qualified theft was actually produced.

The Court must resolve the issue in the negative.

Intod v. Court of Appeals[9] is highly instructive and applicable to the present case. In Intod, the accused, intending to kill a person, peppered the
latters bedroom with bullets, but since the intended victim was not home at the time, no harm came to him. The trial court and the CA held Intod
guilty of attempted murder. But upon review by this Court, he was adjudged guilty only of an impossible crime as defined and penalized in
paragraph 2, Article 4, in relation to Article 59, both of the Revised Penal Code, because of the factual impossibility of producing the crime.
Pertinent portions of said provisions read as follows:
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:

xxxx

2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate to ineffectual means. (emphasis supplied)

Article 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are impossible. - When
the person intending to commit an offense has already performed the acts for the execution of the same but nevertheless the crime was not
produced by reason of the fact that the act intended was by its nature one of impossible accomplishment or because the means employed by such
person are essentially inadequate to produce the result desired by him, the court, having in mind the social danger and the degree of criminality
shown by the offender, shall impose upon him the penalty of arresto mayor or a fine ranging from 200 to 500 pesos.

Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense against persons or property; (2) that the act was
done with evil intent; and (3) that its accomplishment was inherently impossible, or the means employed was either inadequate or ineffectual. The
aspect of the inherent impossibility of accomplishing the intended crime under Article 4(2) of the Revised Penal Code was further explained by the
Court in Intod[10] in this wise:

Under this article, the act performed by the offender cannot produce an offense against persons or property because: (1) the commission of the
offense is inherently impossible of accomplishment; or (2) the means employed is either (a) inadequate or (b) ineffectual.

That the offense cannot be produced because the commission of the offense is inherently impossible of accomplishment is the focus of this
petition. To be impossible under this clause, the act intended by the offender must be by its nature one impossible of accomplishment. There must
be either (1) legal impossibility, or (2) physical impossibility of accomplishing the intended act in order to qualify the act as an impossible crime.

Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime.
xxxx

The impossibility of killing a person already dead falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime. x x x [11]

In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a man puts his hand in the coat pocket of
another with the intention to steal the latter's wallet, but gets nothing since the pocket is empty.

Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In this case, petitioner performed all the acts to
consummate the crime of qualified theft, which is a crime against property. Petitioner's evil intent cannot be denied, as the mere act of unlawfully
taking the check meant for Mega Foam showed her intent to gain or be unjustly enriched. Were it not for the fact that the check bounced, she
would have received the face value thereof, which was not rightfully hers. Therefore, it was only due to the extraneous circumstance of the check
being unfunded, a fact unknown to petitioner at the time, that prevented the crime from being produced. The thing unlawfully taken by petitioner
turned out to be absolutely worthless, because the check was eventually dishonored, and Mega Foam had received the cash to replace the value of
said dishonored check.

The fact that petitioner was later entrapped receiving the P5,000.00 marked money, which she thought was the cash replacement for the
dishonored check, is of no moment. The Court held in Valenzuela v. People[12] that under the definition of theft in Article 308 of the Revised Penal
Code, there is only one operative act of execution by the actor involved in theft ─ the taking of personal property of another. Elucidating further,
the Court held, thus:

x x x Parsing through the statutory definition of theft under Article 308, there is one apparent answer provided in the language of the law that theft
is already produced upon the tak[ing of] personal property of another without the latters consent.

xxxx

x x x when is the crime of theft produced? There would be all but certain unanimity in the position that theft is produced when there is deprivation
of personal property due to its taking by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the
offender, once having committed all the acts of execution for theft, is able or unable to freely dispose of the property stolen since the deprivation
from the owner alone has already ensued from such acts of execution. x x x

xxxx

x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of the same. x x x

x x x Unlawful taking, which is the deprivation of ones personal property, is the element which produces the felony in its consummated stage. x x x
[13]

From the above discussion, there can be no question that as of the time that petitioner took possession of the check meant for Mega Foam, she
had performed all the acts to consummate the crime of theft, had it not been impossible of accomplishment in this case. The circumstance of
petitioner receiving the P5,000.00 cash as supposed replacement for the dishonored check was no longer necessary for the consummation of the
crime of qualified theft. Obviously, the plan to convince Baby Aquino to give cash as replacement for the check was hatched only after the check
had been dishonored by the drawee bank. Since the crime of theft is not a continuing offense, petitioner's act of receiving the cash replacement
should not be considered as a continuation of the theft. At most, the fact that petitioner was caught receiving the marked money was merely
corroborating evidence to strengthen proof of her intent to gain.
Moreover, the fact that petitioner further planned to have the dishonored check replaced with cash by its issuer is a different and separate
fraudulent scheme. Unfortunately, since said scheme was not included or covered by the allegations in the Information, the Court cannot
pronounce judgment on the accused; otherwise, it would violate the due process clause of the Constitution. If at all, that fraudulent scheme could
have been another possible source of criminal liability.

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals, dated December 16, 2003, and its Resolution dated
March 5, 2004, are MODIFIED. Petitioner Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE CRIME as defined and penalized in Articles 4,
paragraph 2, and 59 of the Revised Penal Code, respectively. Petitioner is sentenced to suffer the penalty of six (6) months of arrresto mayor, and
to pay the costs.

SO ORDERED.
FIRST DIVISION
[G.R. No. 123485. August 31, 1998]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLUSAPE SABALONES alias Roling, ARTEMIO TIMOTEO BERONGA, TEODULO ALEGARBES
and EUFEMIO CABANERO, accused, ROLUSAPE SABALONES alias Roling and ARTEMIO TIMOTEO BERONGA, accused-appellants.
DECISION
PANGANIBAN, J.:
Factual findings of trial courts which are affirmed by the Court of Appeals are, as a general rule, binding and conclusive upon the Supreme Court.
Alibi, on the other hand, cannot prevail over positive identification by credible witnesses. Furthermore, alleged violations of constitutional rights
during custodial investigation are relevant only when the conviction of the accused by the trial court is based on the evidence obtained during such
investigation.
The Case
These are the principles relied upon by the Court in resolving this appeal from the Court of Appeals (CA)[1] Decision[2] dated September 28, 1995,
convicting Rolusape Sabalones and Timoteo Beronga of murder and frustrated murder. The convictions arose from a shooting incident on June 1,
1985 in Talisay, Cebu, which resulted in the killing of two persons and the wounding of three others, who were all riding in two vehicles which were
allegedly ambushed by appellants.
After conducting a preliminary investigation, Second Assistant Provincial Prosecutor Juanito M. Gabiana Sr. filed before the Regional Trial Court
(RTC) of Cebu City, Branch 7,[3] five amended Informations charging four John Does, who were later identified as Rolusape Sabalones, Artemio
Timoteo Beronga, Teodulo Alegarbes and Eufemio Cabanero, with two counts of murder and three counts of frustrated murder. The Informations
are quoted hereunder.
1) Crim Case No. CBU-9257 for murder:
That on the 1st day of June, 1985, at 11:45 oclock in the evening, more or less, at Mansueto Village, Bulacao, Municipality of Talisay, Province of
Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping
one another, armed with high-powered firearms, with intent to kill and treachery, did then and there wilfully, unlawfully and feloniously attack,
assault and shoot GLENN TIEMPO, who was riding [i]n a jeep and who gave no provocation, thereby inflicting upon the latter several gunshot
wounds, thereby causing his instantaneous death.
CONTRARY TO Article 248 of the Revised Penal Code.
2) Criminal Case No. 9258 for murder:
That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or less at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and
mutually helping one another, armed with high-powered firearms, with intent to kill and treachery, did [then] and there wilfully, unlawfully and
feloniously attack, assault and shoot ALFREDO NARDO, who was riding on a jeep and who gave no provocation, thereby inflicting upon the latter
several gunshot wounds, thereby causing his instantaneous death.
CONTRARY TO Article 248 of the Revised Penal Code.
3) Crim Case No. CBU-9259 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually
helping one another, armed with high-powered firearms, with intent to kill and treachery, did and there wilfully, unlawfully and feloniously attack,
assault and shoot REY BOLO who was riding in a car and who gave no provocation, thereby inflicting upon the latter the following injuries to wit:
laceration, mouth due to gunshot wound, gunshot wound (L) shoulder penetrating (L) chest; gunshot wound (R) hand (palm); open fracture (L)
clavicle (L) scapula; contusion (L) lung;
thereby performing all the acts of execution which would produce the crime of [m]urder as a consequence but which, nevertheless, did not
produce it by reason of causes independent of the will of the perpetrator, i.e. the timely medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.
4) Criminal Case No. 9260 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually
helping one another, armed with high-powered firearms, with intent to kill and treachery, did then and there wilfully, unlawfully and feloniously
attack, assault and shoot ROGELIO PRESORES, who was riding in a car and who gave no provocation, thereby inflicting upon the latter the following
injuries, to wit:
gunshot wound, thru and thru right chest
thereby performing all the acts of execution which would produce the crime of [m]urder as a consequence but which, nevertheless, did not
produce it by reason of causes independent of the will of the perpetrator, i.e. the timely medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.
5) Criminal Case No. 9261 for frustrated murder:
That on the 1st day of June, 1985 at 11:45 oclock in the evening, more or less, at Mansueto Village, Barangay Bulacao, Municipality of Talisay,
Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and mutually
helping one another, armed with high-powered firearms, with intent to kill and treachery, did then and there wilfully, unlawfully and feloniously
attack, assault and shoot NELSON TIEMPO, who was riding in a car and who gave no provocation, thereby inflicting upon the latter the following
injuries, to wit:
Gunshot wound neck penetrating wound perforating trachea (cricoid) thereby performing all the acts of execution which would produce the crime
of [m]urder as a consequence but which nevertheless, did not produce it by reason of causes independent of the will of the perpetrator, i.e. the
timely medical attendance.
IN VIOLATION of Article 248 of the Revised Penal Code.
Of the four indictees in the five Informations, Teodulo Alegarbes and Artemio Timoteo Beronga were the first to be arraigned. Upon the arrest of
the two, the Informations were amended by the public prosecutor, with the conformity of the defense counsel, by substituting the names of the
two accused for the John Does appearing in the original Informations. When arraigned, said accused, assisted by their respective lawyers, pleaded
not guilty to the five Informations.
Alegarbes died in the course of trial; thus, the cases against him were dismissed. Accused Cabanero remained at large. Sabalones, on the other
hand, was eventually arrested. Subsequently, he jumped bail but was recaptured in 1988 and thereafter pleaded not guilty during his arraignment.
The cases against Sabalones and Beronga were jointly tried. Thereafter, the lower court found them guilty beyond reasonable doubt of the crimes
charged. The RTC disposed as follows:
WHEREFORE, premises above-set forth, the Court finds accused ROLUSAPE SABALONES and (ARTEMIO) TIMOTEO BERONGA, [g]uilty beyond
reasonable doubt, as principals:
In Crim. Case No. CBU-9257, for MURDER, defined and penalized in Art. 248 of the Revised Penal Code, hereby sentences each said accused to
suffer the penalty of [f]ourteen (14) years, [e]ight (8) months and [o]ne (1) day, as minimum, to [s]eventeen (17) years, [f]our (4) months and [o]ne
(1) day, of [r]eclusion [t]emporal, as maximum, to indemnify the heirs of deceased, Glenn Tiempo, the sum of P50,000.00;
In Crim. Case No. CBU-9258, for MURDER, defined and penalized in Art. 248 of the Revised Penal Code, hereby sentences each said accused to
suffer the penalty of [f]ourteen (14) years, [e]ight (8) months and [o]ne (1) day, as minimum, to [s]eventeen (17) years, [f]our (4) months and [o]ne
(1) day, of [r]eclusion [t]emporal, as maximum, to indemnify the heirs of deceased, Alfredo Nardo, the sum of P50,000.00;
In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, defined and penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code, hereby
sentences each said accused to suffer the penalty of [e]ight (8) years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight (8) months
of [re]clusion [t]emporal, as maximum, to indemnify the victim, Rey Bolo, the sum of P20,000.00;
In Crim. Case No. CBU-9260, for FRUSTRATED MURDER, defined and penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code, hereby
sentences each said accused to suffer the penalty of [e]ight (8) years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight months of
[r]eclusion [t]emporal, as maximum, to indemnify the victim, Rogelio Presores, the sum of P20,000.00;
In Crim. Case no. CBU-9261, for FRUSTRATED MURDER, defined and penalized in Art. 248 in relation to Art. 50 of the Revised Penal Code, hereby
sentences each said accused to suffer the penalty of [e]ight (8) years of prision mayor, as minimum, to [f]ourteen (14) years and [e]ight (8) months
of [r]eclusion [t]emporal, as maximum, to indemnify the victim, Nelson Tiempo, the sum of P20,000.00; and
To pay the costs in all instances. The period of their preventive imprisonment shall be credited to each accused in full.
SO ORDERED.[4]
Appellants filed a notice of appeal to the Court of Appeals. Thereafter, the CA affirmed their conviction but sentenced them to reclusion perpetua
for the murders they were found guilty of. Accordingly, the appellate court, without entering judgment, certified the case to the Supreme Court in
accordance with Section 13, Rule 124 of the Rules of Court. The dispositive portion of the CA Decision reads:
WHEREFORE, the Decision of the trial court convicting accused-appellants Rolusa[p]e Sabalones and Artemio Timoteo Beronga for murder in Crim.
Cases Nos. CBU-9257 and CBU-9258, and [f]rustrated [m]urder in Crim. Cases Nos. CBU-9259, CBU-9260, and CBU-9261 is hereby AFFIRMED;
however, the penalties in the [f]rustrated [m]urder and [m]urder cases are hereby MODIFIED, such that both accused-appellants are each
sentenced to imprisonment of TEN (10) YEARS of [p]rision [m]ayor medium as minimum to SEVENTEEN (17) YEARS and FOUR (4) MONTHS of
[r]eclusion [t]emporal medium as maximum in each of the three [f]rustrated [m]urder cases (Crim. Cases Nos. CBU-9259, CBU-9260 and CBU-9261);
and are each sentenced to [r]eclusion [p]erpetua in each of the two [m]urder cases (Crim. Cases Nos. CBU-9257 and CBU-9258). The indemnity to
the victim in each [f]rustrated [m]urder case shall remain. In conformity with Rule 124, Section 13 of the Rules of Court, however, this Court
refrains from entering judgment, and hereby certifies the case and orders that the entire record hereof be elevated to the Supreme Court for
review.[5]
After the Court of Appeals certified the case to this Court, we required appellants to file supplemental briefs. Appellants failed to comply within the
prescribed period and were deemed to have waived their right to do so.[6] Thus, in resolving this case, this Court will address primarily the
arguments raised by the appellants in their Brief before the Court of Appeals, which assailed the RTC Decision.
The Facts
Version of the Prosecution
The solicitor general[7] quoted the following factual findings of the trial court:
Edwin Santos, a resident of Mambaling, Cebu City stated that on June 1, 1985 at 6:00 oclock in the evening, he was at the residence of Inday
Presores, sister of Rogelio Presores, located at Rizal Ave., Cebu City to attend a wedding. He stayed until 9:00 oclock in the evening and proceeded
to the house of Maj. Tiempo at Basak, Mambaling, Cebu City where a small gathering was also taking place. (pp. 3-6, tsn, April 7, 1987)
Arriving thereat, he saw Nelson and Glenn Tiempo as well as Rogelio Presores, Rogelio Oliveros, Junior Villoria, Rey Bolo and Alfredo Nardo. (p. 7,
ibid.)
At about 11:00 oclock in the evening, Stephen Lim, who was also at the party, called their group and requested them to push his car. When the
engine started, the former asked them to drive his car home. (pp. 7-11, ibid.)
Together with Nelson Tiempo, who was at the wheel, Rogelio Presores, Rogelio Oliveros and Junior Villoria, they drove to the residence of Stephen
Lim at Mansueto Compound, Bulacao, Talisay, Cebu. (p. 12, ibid.)
Glenn Tiempo, Rey Bolo and Alfredo Nardo also went with them riding in an owner-type jeep, driven by the latter, in order to bring back the group
[as] soon as the car of Mr. Lim was parked in his home. (p. 21, ibid.)
The two vehicles traveled in convoy with the jeep 3 to 4 meters ahead of the car. When they arrived at the gate of the house of Stephen Lim, they
were met with a sudden burst of gunfire. He looked at the direction where the gunfire came, and saw [the] persons [who] fired at the jeep. He
identified accused, Teodulo Alegarbes, Rolusape Sabalones and Timoteo Beronga as the persons who fired at the vehicle. Except for Teodulo
Alegarbes, who was naked from [the] waist up, the gunmen wore clothes. (pp. 21-23; 13-16; 33, ibid.)
After firing at the jeep, the assailants shot the car they were riding[,] hitting Nelson Tiempo on the throat and Rogelio Presores on the breast.
Despite the injury he sustained, Nelson Tiempo was able to maneuver the car back to their residence. (pp. 17-19, ibid.)
He immediately informed Maj. Tiempo about the incident and the lat[t]er brought the victims to the Cebu Doctors Hospital. (p. 20, ibid.)
Rogelio Presores corroborated in substance the testimony of Edwin Santos, being one of those who were in the car driven by Nelson Tiempo to the
residence of Stephen Lim. (pp. 4-6, tsn, Aug. 14, 1987)
He further testified that when the jeep driven by Alfredo Nardo with Rey Bolo and Glenn Tiempo as passengers arrived at the front gate of Lims
residence and while their car was 3 meters from the rear end of the jeep, there was a volley of gunfire. He glanced at the direction of the gunfire
and saw the jeep being fired at by four persons, who were standing behind a concrete wall, 42 inches in height, and armed with long firearms.
Thenceforth, he saw Alfredo Nardo, Glenn Tiempo and Rey Bolo f[a]ll to the ground. (pp. 6-7, ibid.)
He recognized accused, Rolusape Sabalones, as one of those who fired at the jeep. He also identified in Court accused, Teodulo Alegarbes, Timoteo
Beronga and another person, whom he recognized only through his facial appearance. (pp. 7-8, ibid.)
When the shots were directed [at] their car[,] they were able to bend their heads low. When the firing stopped, he directed Nelson Tiempo to back
out from the place. As the latter was maneuvering the car, the shooting continued and he was hit in the breast while Nelson Tiempo, in the neck,
and the windshield of the vehicle was shattered. (p. 10, ibid.)
Arriving at the house of Maj. Tiempo, they were brought to Cebu Doctors Hospital. He and Nelson Tiempo were operated on. He had incurred
hospital expenses in the sum of P5,412.69, (Exh. I, K). (pp. 11-12, ibid.)
Ladislao Diola, Jr., [m]edico-[l]egal [o]fficer of the PC Crime Laboratory, Regional Unit 7 stationed at Camp Sotero Cabahug, Cebu City remembered
having performed a post-mortem examination on the dead body of Glenn Tiempo on June 2, 1985 at the Cosmopolitan Funeral Homes, Cebu City.
(p. 7, tsn, Nov. 11, 1987)
He issued the necessary Death Certificate, (Exh. D) and Necropsy Report, (Exh. F) and indicated therein that the victims cause of death was [c]ardio
respiratory arrest due to [s]hock and [h]emorrhage [s]econdary to [g]unshot wounds to the trunk. (p. 8, ibid.)
The victim sustained gunshot wounds in the right chest and left lumbar area. (pp. 10-11, ibid.)
He explained that in gunshot wound no. 1, the wound entrance[,] which [was] characterized by invaginated edges and contusion collar[,] was
located in the right chest and the bullet went up to the left clavicle hitting a bone which incompletely fractured it causing the navigation of the
bullet to the left and to the anterior side of the body. He recovered a slug, (Exh. G) below the muscles of the left clavicle. (p. 21, ibid.)
Based on the trajectory of the bullet, the assailant could have been [o]n the right side of the victim or in front of the victim but [o]n a lower level
than the latter.
In both gunshot wounds, he did not find any powder burns which would indicate that the muzzle of the gun was beyond a distance of 12 inches
from the target. (p. 15, ibid.)
At the time he conducted the autopsy, he noted that rigor mortis in its early stage had already set in which denote[s] that death had occurred 5 to
6 hours earlier. (pp. 34-5, ibid.)
Maj. Juan Tiempo, father of the victims, Glenn and Nelson Tiempo, testified that when he learned about the incident in question, he immediately
summoned military soldiers and together they proceeded to the scene. (pp. 4-6, tsn, Nov. 12, 1988)
Arriving thereat, he saw the lifeless body of his son, Glenn. He immediately carried him in his arms and rushed him to the hospital but the victim
was pronounced Dead on Arrival. (pp. 6-7, ibid.)
They buried his son, who was then barely 14 years old, at Cebu Memorial Park and had incurred funeral expenses (Exhs. K, L, O). (pp. 7-8, ibid.)
His other son, Nelson, then 21 years old and a graduate of [m]edical [t]echology, was admitted at the Cebu Doctors Hospital for gunshot wound in
the neck. The latter survived but could hardly talk as a result of the injuries he sustained. He had incurred medical and hospitalization expenses in
the sum of P21,594.22, (Exh. H), (pp. 8-10, ibid.)
He had also incurred expenses in connection with the hospitalization of the injured victims, Rogelio Presores and Rey Bolo in the amount[s] of
P5,412.69, (exh. I) and P9,431.10, (Exh. J), respectively. (p. 11, ibid.)
He further stated that he [was] familiar with the accused, Roling Sabalones, because the latter had a criminal record in their office in connection
with the kidnapping of a certain Zabate and Macaraya. (p. 16, ibid.)
xxxxxxxxx
Dr. Jesus P. Cerna, [m]edico-[l]egal [o]fficer of the PC/INP, Cebu Metrodiscom, had conducted an autopsy on the dead body of Alfredo Nardo, who
sustained two (2) gunshot wounds in the lower lip and left intraclavicular region, upon the request of the [c]hief of the Homicide Section of Cebu
Metrodiscom. He issued the victims Necropsy Report, (Exh. F) and Death Certificate, (Exh. G). (pp. 5-8, tsn, Dec. 4, 1987; pp. 4-6, tsn, Nov. 29, 1988)
He stated that the wound of entrance in gunshot wound no. 1 was located in the lower lip, more or less[,] on the left side making an exit in the left
mandibular region. (pp. 9-11, tsn, Dec. 4, 1987; pp. 6-8, tsn, Nov. 29, 1988)
In gunshot wound no. 2, the wound of entrance was in the left intraclavicular region exiting at the back as reflected in the sketch, (Exh. F-2). This
wound was fatal and [could] almost cause an instantaneous death considering that the bullet penetrated the thoracic cavity, lacerating the lungs
and perforating the heart before making an exit. (pp. 11-13, tsn, Dec. 4, 1987; pp. 13-15, tsn, Nov. 29, 1988)
He found no tattooing around the wound of entrance in both gunshot wounds. (pp. 8-9, tsn, Nov. 29, 1988)
He prepared and issued th[e] Necropsy Report, (Exh. F) and Death Certificate, (Exh. G) of Alfredo Nardo who was identified to him by the latters
daughter, Anita Nardo. (pp. 26-27, ibid.)
Rey Bolo, one of the victims, testified that when the jeep he was riding [in] together with Glenn Tiempo and Alfredo Nardo, reached the gate of the
residence of Stephen Lim, they were suddenly fired upon. (pp. 5-8, tsn, March 6, 1989)
He was hit in the right palm and left cheek. He jumped out of the vehicle and ran towards the car which was behind them but he was again shot at
[,] [and hit] in the left scapular region. He was still able to reach the road despite the injuries he sustained and tried to ask help from the people
who were in the vicinity but nobody dared to help him, [they] simply disappeared from the scene, instead. (pp. 8-9, ibid.)
He took a passenger jeepney to the city and had himself treated at the Cebu Doctors Hospital, and incurred medical expenses in the sum of
P9,000.00. (p. 9, ibid.)
He was issued a Medical Certificate, (Exh. N) by his attending physician.
Dr. Miguel Mancao, a [p]hysician-[s]urgeon, recalled having attended [to] the victims, Nelson Tiempo, Rey Bolo and Rogelio Presores at the Cebu
Doctors Hospital on June 2, 1985. (pp. 7-8, 11, 14, tsn, May 30, 1989)
Nelson Tiempo sustained gunshot wound[s] in the neck and in the right chest but the bullet did not penetrate the chest cavity but only the left
axilla. He was not able to recover any slugs because the same disintegrated while the other was thru and thru. The wound could have proved fatal
but the victim miraculously survived. As a consequence of the injury he sustained, Nelson Tiempo permanently lost his voice because his trachea
was shattered. His only chance of recovery is by coaching and speech therapy. He issued his Medical Certificate. (Exh. O). (pp. 8-11, ibid.)
With regard to the patient, Rey Bolo, the latter suffered multiple gunshot wounds in the left shoulder penetrating the chest and fracturing the 2nd,
3rd, and 4th ribs in the process, in the right hand fracturing the proximal right thumb and in the mouth lacerating its soft tissues, per Medical
Certificate, (Exh. N) which he issued. (pp. 11-16, ibid.)
Based on the trajectory of the bullet, the gunman could have been in front of the victim, when gunshot would no. 1 was inflicted. (p. 30, ibid.)
With respect to the patient, Rogelio Presores, the latter suffered [a] gunshot wound in the chest with the wound of entrance in the right anterior
chest exiting at the back which was slightly lower than the wound of entrance. He issued the victims Medical Certificate, (Exh. M). (pp. 34-35, ibid.)
Based on the location of the wound, the gunman could have been in front of the victim but [o]n a slightly higher elevation than the latter. (pp. 35-
36, ibid.)[8]
Version of the Defense
Appellants interposed denial and alibi. Their version of the facts is summarized by the trial court[9] thus:
xxx Timoteo Beronga, a cristo or bet caller in the cockpit, testified that in the afternoon of June 1, 1985, he was in the Talisay Sports Complex
located at Tabunok, Talisay, Cebu to attend a cock-derby.
At about 7:00 oclock in the evening, he was fetched by his wife and they left taking a taxicab going to their residence in Lapulapu City. After passing
by the market place, they took a tricycle and arrived home at 8:00 oclock in the evening.
After taking his supper with his family, he went home to sleep at 10:30 in the evening. The following morning, after preparing breakfast, he went
back to sleep until 11:00 in the morning.
On February 24, 1987, while he was playing mahjong at the corner of R.R. Landon and D. Jakosalem Sts., Cebu City, complainant, Maj. Juan Tiempo
with some companions, arrived and after knowing that he [was] Timmy, [which was] his nickname, the former immediately held him by the neck.
He ran away but the latter chased him and kicked the door of the house where he hid. He was able to escape through the back door and took
refuge in Mandaue at the residence of Nito Seno, a driver of Gen. Emilio Narcissi.(Tsn-Abangan, pp. 4-17, October 19, 1989)
On February 27, 1987, upon the advi[c]e of his friend, they approached Gen. Narcissi and informed him of the incident. The latter brought him to
the Provincial Command Headquarters in Lahug, Cebu City to confront Maj. Juan Tiempo.
After several days, he was brought by Maj. Tiempo to the PC Headquarter[s] in Jones Ave., Cebu City where he was provided with a lawyer to
defend him but he was instructed that he should assent to whatever his lawyer would ask of him.
He was introduced to Atty. Marcelo Guinto, his lawyer, who made him sign an Affidavit, (Exh. U) the contents of which, co[u]ched in the dialect,
were read to him.
He also testified that before he was detained at the CPDRC, complainant brought him inside the shop of a certain Den Ong, where he was again
mauled after he denied having any knowledge of the whereabouts of Roling Sabalones and the carbine.
At the instance of Col. Medija, he was physically examined at the Southern Islands Hospital, Cebu City and was issued a [M]edical Certificate. (Tsn-
Formentera, pp. 3-36, Jan. 18, 1990).
Justiniano Cuizon, [a]ccount [o]fficer of the Visayan Electric Company (VECO) South Extension Office, who is in charge of the billing, disconnection
and reconnection of electric current, testified that based on the entries in their logbook, (Exh. 3) made by their checker, Remigio Villaver, the
electrical supply at the Mansueto Compound, Bulacao, Talisay, Cebu, particularly the Mansueto Homeowners covered by Account No. 465-293000-
0, (Exh. 4-B) was disconnected on January 10, 1985, (Exh. 3-A) for non-payment of electric bills from March 1984 to January 1985 and was
reconnected only on June 17, 1985 (Exh. 4, 4-A). (Tsn-Abangan, pp. 22-27, Jan. 31, 1990).
Remigio Villaver, a checker of VECO, whose area of responsibility cover[ed] the towns of Talisay and San Fernando, Cebu had kept the record of
disconnection of electrical supply of Mansueto Subdivision in Bulacao, Talisay, Cebu and the same showed that on January 10, 1985, (Exh. 3-A), a
service order was issued by their office to the Mansueto Homeowners for the permanent disconnection of their electric lights due to non-payment
of their electric bills from March 1984 until January 1985. The actual disconnection took place on December 29, 1984.
Witness Fredo Canete made efforts to corroborate their testimony. (Tsn-Formentera, pp.3-5, Apr. 20, 1990).
Vicente Cabanero, a resident of Mansueto Compound in Talisay, Cebu since 1957 until the present, remembered that on June 1, 1985, between
10:00 oclock and 11:00 oclock in the evening, he heard a burst of gunfire about 15 to 20 armslength [sic] from his residence.
He did not bother to verify because he was scared since the whole place was in total darkness. (Tsn-Abangan, pp. 18-23, Feb. 22, 1990).
Marilyn Boc, another witness for the accused, stated that on the date and time of the incident in question, while she was at the wake of Junior
Sabalones, younger brother of Roling Sabalones, who died on May 26, 1985, a sudden burst of gunfire occurred more or less 60 meters away.
Frightened, she went inside a room to hide and saw accused, Roling Sabalones, sound asleep.
She came to know accused, Timoteo Beronga, only during one of the hearings of this case and during the entire period that the body of the late
Junior Sabalones [lay] in state at his residence, she never saw said accused.
She was requested to testify in this case by Thelma Beronga, wife of Timoteo Beronga. (Tsn-Abangan, pp. 9-13, February 28, 1990).
Dr. Daniel Medina, while then the [r]esident [p]hysician of Southern Islands Hospital, Cebu City had treated the patient, Timoteo Beronga on March
18, 1987.
Upon examination, he found out that the patient sustained linear abrasion, linear laceration and hematoma in the different parts of the body.
Except for the linear laceration which he believed to have been inflicted two or three days prior to [the] date of examination, all the other injuries
were already healed indicating that the same were inflicted 10 to 12 days earlier.
He issued the corresponding Medical Certificate (Exh. 2) to the patient. (Tsn-Abangan, pp. 9-13, May 21, 1990).
Atty. Jesus Pono, counsel for accused Beronga, mounted the witness stand and averred that he [was] a resident of Mansueto Compound, Bulacao,
Talisay, Cebu. As shown in the pictures, (Exhs. 3, 4 & 5 with submarkings) his house is enclosed by a concrete fence about 5 feet 6 inches tall. It is
situated 6 meters from the residence of accused, Roling Sabalones, which was then being rented by Stephen Lim. Outside the fence [are] shrubs
and at the left side is a lamp post provided with 200 watts fluorescent bulb.
On June 1, 1985 at about 7:00 oclock in the evening, he saw Roling Sabalones, whom he personally [knew] because they used to be neighbors in
Talisay, Cebu, at the wake of his brother, Federico Sabalones, Jr. or Junior Sabalones, as mentioned repeatedly hereabout. They even had a talk and
he noticed accused to be physically indisposed being gravely affected by the loss of his only brother, who met a violent death in the hands of an
unknown hitman on May 26, 1985.
He went home after he saw accused [lie] down on a bamboo bench to rest.
At about 12:00 oclock midnight, he was awakened by a rapid burst of gunfire which emanated near his house. He did not attempt to go down or
look outside. He [was] in no position to tell whether or not the street light was lighted.
When he verified the following morning, he noticed bloodstains on the ground as well as inside the jeep which was parked 2 to 3 meters from his
fence and 50 to 70 meters from the house where Junior Sabalones [lay] in state. He observed that the jeep was riddled with bullets and its
windshield shattered. (Tsn-Abangan, pp. 3-16, June 6, 1990).
He admitted that he used to be a counsel of accused, Roling Sabalones, in several cases, among which involved the death of a certain Garces and
Macaraya, which cases were however, dismissed by the Office of the Provincial Fiscal of Cebu. (Tsn-Tumarao, pp. 2-3, June 13, 1990).
Doroteo Ejares, a relative of accused, testified that when he attended the wake of Junior Sabalones on June 1, 1985 at 8:00 oclock in the evening,
he saw accused lying on a bamboo bench in the yard of the house of the deceased.
At past 10:00 oclock in the evening, accused excused himself as he was not feeling well and entered a room to rest while he remained by the door
and slept.
At almost 12:00 oclock midnight, he was awakened by a burst of gunfire which took place more or less 20 meters away and saw the people
scamper[ing] for safety. He hid inside the room where accused was sleeping and peeped thru the door. Not long after, Marilyn Boc entered and in a
low voice talked about the incident.
They decided to wake up the accused to inform him of what was happening, but the latter merely opened his eyes and realizing that accused was
too weak, they allowed him to go back to sleep.
When he went home at past 5:00 oclock in the morning of June 2, 1985, he saw a jeep outside of the compound. He did not bother to investigate
or inquire about the incident as he was in a hurry to go home and prepare for the burial of Junior Sabalones.
He was requested to testify in this case by his aunt and mother of accused Rolusape Sabalones. (Tsn-Tumarao, pp. 10-15, June 13, 1990).
Russo Sabalones, uncle of accused, Sabalones, averred that the latter was once, one of his undercover agents while he was then the [c]hief of the
Intelligence Service of the PC from 1966 until 1968.
As part of their intelligence tradition, an undercover agent is not allowed to carry his real name. In the case of his nephew and accused, Rolusape
Sabalones, the latter chose the name Paciano Laput which name was recorded in their code of names.
When he retired in 1968, the accused ceased to be an agent and xxx likewise ceased to have the authority to use the name Paciano Laput. (Tsn-
Abangan, p. 12, July 23, 1990).
Alfonso Allere, a distant relative of the accused, remembered having received a call from Roling Sabalones, one morning after the burial of the
latters brother, asking for his advise because of the threats [to] his life which he received thru telephone from the group of Nabing Velez and the
group of the military.
After he had advised accused to lie low, he had not heard of him, since then.
Godofredo Mainegro of the Public Assistance and Complaint Action Office of the Regional Unified Command 7, received a complaint from one
Inocencia Sabalones on March 13, 1986.
He recorded the complaint in their Complaint Sheet, (Exh. 6) and let complainant affix her signature.
After the document was subscribed and sworn to before him, (Exh. 6-C), he indorsed it to their [c]ommanding [o]fficer, Apolinario Castano. (Tsn-
Formentera, pp. 3-10, July 24, 1990).
Ret. Col. Apolinario Castano, recalled that while he was then with the Regional Unified Command 7, his niece, Racquel Sabalones together with her
husband Roling Sabalones, came to him for advi[c]e because the latter was afraid of his life brought about by the rampant killings of which his
brother and the son of Maj. Tiempo were victims.
Considering that accuseds problem was a police matter, they approached Gen. Ecarma, the then [c]ommander of the PC/INP, Recom 7, and the
latter referred them to his [c]hief of [s]taff, Col. Roger Denia, who informed them that there was no case filed against the accused. Nevertheless,
the latter was advised to be careful and consult a lawyer.
Inocencia Sabalones, mother of accused, Roling Sabalones, narrated that on March 12, 1986 at past 10:00 oclock in the evening, she was roused
from sleep by a shout of a man demanding for Roling Sabalones.
Upon hearing the name of her son, she immediately stood up and peeped through the door of her store and saw men in fatigue uniforms carrying
long firearms. Thenceforth, these men boarded a vehicle and left.
On the following morning, she was again awakened by the persistent shouts and pushing of the gate. When she verified, the man who introduced
himself to her as Maj. Tiempo, ordered her to open the gate. Once opened, the men of Maj. Tiempo entered the house and proceeded to search
for Roling Sabalones, whom Maj. Tiempo suspected to have killed his son and shot another to near death. When she demanded for a search
warrant, she was only shown a piece of paper but was not given the chance to read its contents.
Racquel Sabalones, wife of accused, Rolusape Sabalones, maintained that on June 1, 1985 at 1:00 oclock in the afternoon, she was at the wake of
her brother-in-law, Junior Sabalones, at his residence in Bulacao, Talisay, Cebu.
At 11:00 oclock in the evening of the same day, together with her 3 daughters as well as Marlyn Sabarita, Rose Lapasaran and Gloria Mondejar, left
the place in order to sleep in an unoccupied apartment situated 30 meters away from the house where her deceased, brother-in-law, Junior, was
lying in state, as shown in the Sketch, (Exh. 7 and submarkings) prepared by her. They brought with them a flashlight because the whole place was
in total darkness.
As they were about to enter the gate leading to her apartment she noticed a sedan car coming towards them. She waited for the car to come
nearer as she thought that the same belong[ed] to her friend, but the vehicle instead stopped at the corner of the road, (Exh. 7-F) and then
proceeded to the end portion of Mansueto Compound, (Exh. 7-G). As it moved slowly towards the highway, she rushed inside the apartment.
Few minutes later, she heard a burst of gunfire outside their gate. She immediately gathered her children and instructed Marlyn Sabarita to use the
phone situated at the third door apartment and call the police.
After the lull of gunfire, she went to the terrace and saw people in civilian and in fatigue uniforms with firearms, gathered around the place. One of
these men even asked her about the whereabouts of her husband, whom she left sleeping in the house of the deceased.
At 8:30 in the morning of June 2, 1985, during the burial of Junior Sabalones, they were informed by Pedro Cabanero that Roling Sabalones was a
suspect for the death of Nabing Velez and the son of Maj. Tiempo.
She believed that the reason why her husband was implicated in the killing of Nabing Velez was because of the slapping incident involving her
father-in-law, Federico Sabalones, Sr. and Nabing Velez which took place prior to the death of Junior Sabalones.
After the funeral, she began to receive mysterious calls at their residence in Sikatuna St., Cebu City where they began staying since 1978. She also
noticed cars with tinted windows strangely parked in front of their residence.
Frightened and cowed, they decided to seek the advice of Col. Apolinario Castano, who after relating to him their fears, advised her husband to lie
low and to consult a lawyer.
To allay their apprehension, accused, Roling Sabalones, left Cebu City for Iligan, Manila and other cities to avoid those who were after him. When
she learned about the threat made by Maj. Tiempo on her husband, she forewarned the latter not to return to Cebu.
Marlyn Sabarita, an illegitimate daughter of Rolusape Sabalones, stated that in the night in question, she was at the wake of Junior Sabalones and
saw her Papa Roling, the herein accused, lying on the lawn of the house of the deceased.
She was already in the apartment with her Mama Racquel when she heard a burst of gunfire. Upon instructions of the latter, she went out to call
the police thru the phone located [in] the third apartment occupied by a certain Jet. (Tsn-Tumarao, pp. 3-15, Oct. 15, 1990).
Edward Gutang, [a]sst. lay-out [e]ditor and [a]sst. [s]ports [e]ditor of Sun-Star Daily, while then a military and police reporter had covered the
shooting incident which took place on June 1, 1985 at the Mansueto Compound, Bulacao, Talisay, Cebu.
At past 1:00 oclock dawn, together with their newspaper photographer, Almario Bitang, they went to the crime scene boarding the vehicle of the
Cosmopolitan Funeral Homes. Arriving thereat, they decided not to proceed inside the compound because of fear. The place was then in complete
darkness.
Upon being informed that the victims were brought to Cebu City Medical Center, they rushed to the place and met Maj. Tiempo hugging the dead
body of his 14-year old son. His photographer took a picture of that pathetic scene. (Exh. 8-B).
Samson Sabalones, a retired [a]mbassador and uncle of Rolusape Sabalones, posted a bail bond for his nephew with Eastern Insurance Company,
when a warrant for his arrest was issued by the Municipal Court, on March 12, 1986 because he was bothered by the fact that the latter was being
unreasonably hunted by several groups. He even advised the accused to appear in [c]ourt to clarify the nature of the case filed against him.
Virgincita Pajigal, a resident of Butuan City, met accused, Rolusape Sabalones, who introduced himself to her as Paciano Laput nicknamed, Ondo, in
a massage clinic where she was working.
For less than a year, they lived together as husband and wife without the benefit of marriage because according to her the accused was married
but separated from his wife, whose name was never mentioned to her. For such a short span of time being together, her love for the accused
developed to the extent that whatever happen[ed] to him, she [would] always be there to defend him.
With the help of Maj. delos Santos, who advised her to always stay close [to] the accused, she was able to board the same vessel. She saw the
latter clad in green T-shirt, (Exh. 14) and pants, handcuffed and guarded.
Reaching Cebu City, they took a taxicab and as the vehicle went around the city, she was instructed by Maj. Tiempo to place the towel, (Exh. 15)
which she found inside her bag, on the head of the accused. They stopped at the Reclamation Area and Maj. Tiempo pulled them out of the vehicle
but she held on tightly to Ondo, ripping his shirt. This pulling incident happened for several times but complainant failed to let them out of the
vehicle.
The accused was finally brought to the Provincial Jail while she stayed in the residence of the accused. She returned to Butuan after a week. (Tsn-
Formentera, pp. 5-33, Jan. 22, 1991).
Accused, Rolusape Sabalones, alias Roling, in his defense, with ancillary incidental narrations, testified , that on June 1, 1985 at 6:00 oclock in the
evening, he was at the wake of his only brother, Junior Sabalones, who was killed on May 26, 1985.
He had no idea as to who was responsible for the killing of his brother inasmuch as the latter had plenty of enemies. He also did not exert effort to
look into the case and to place it under police authority since he had lost faith in the capabilities of the police. The matter was however reported by
his uncle, Ambassador Sabalones, to the authorities.
He stayed at the wake until 10:00 oclock in the evening because he was not feeling well. He retired in a small room adjacent to the sala of the
house of the deceased. Not long after, he felt somebody waking him up but he merely opened his eyes and went back to sleep as he was really
exhausted.
At 6:30 the following morning, he was roused by his wife so he could prepare for the burial. He came to know about the burst of gunfire which took
place the previous night upon the information of his wife. He did not take the news seriously as he was busy preparing for the burial of his
deceased brother, Jun.
The funeral started at past 8:00 oclock in the morning and he noticed the presence of Maj. Eddie Ricardo and his men, who were sent by Col.
Castano purposely to provide the burial with military security, upon the request of his wife.
He had a conversation with Maj. Ricardo who inquired about the shooting incident which resulted in the death of the son of Maj. Tiempo and
others in his company. Also in the course of their conversation, he came to know that Nabing Velez was killed earlier on that same night in
Labangon, Cebu [C]ity.
On the same occasion, Pedro Cabanero also notified him that he was a suspect in the killing of Nabing Velez, a radio commentator of ferocious
character, who was engaged in a protection racket with several under his control.
He remembered that a month prior to the death of Nabing Velez, his father, Federico Sabalones, Sr. and the deceased while matching their fighting
cocks at the Talisay Sports Complex, had an altercation and the latter slapped his paralytic father and challenged him to ask one of his sons to
avenge what he had done to him. He came to know about the incident only after a week.
He did not deny the fact that he was hurt by the actuation of the deceased for humiliating his father but it did not occur to him to file a case or take
any action against the deceased because he was too busy with his business and with his work as a bet caller in the cockpit.
He advised his father to stay in Bohol to avoid further trouble because he knew that the latter would frequent the cockpit[,] being a cockfight
aficionado.
Likewise, during the burial, he was informed by a PC soldier, Roger Capuyan, that he was also a suspect in the killing of the son of Maj. Tiempo and
even advised him to leave the place.
On the following days after the burial, his wife started to notice cars suspiciously parked in front of their house and [she] also received mysterious
calls.
Together with his wife, they decided to see Col. Apolinario Castao to seek his advise. The latter verified from the Cebu Metrodiscom and learned
that there was no case filed against him.
In the evening of June 6, 1985, he left for Iligan and after a month, he transferred to Ozamis and then to Pagadian. He likewise went to Manila
especially when he learned that his uncle, Samson Sabalones, had arrived from abroad. The latter posted a bond for his temporary liberty
immediately after being informed that a case was filed against him, before the Municipal Court of Talisay.
Despite xxx the bond put up by his uncle, he did not return to Cebu City because it came to his knowledge that Maj. Tiempo inquired from the
bonding company as to his address.
He also stayed in Marikina in the house of his friend and during his stay in the said place, he registered as a voter and was issued a Voters Affidavit,
(Exh. 19; Exh. R for the prosecution) which bore the name Paciano Mendoza Laput which [was] his baptismal name. He explained that the name[s]
Mendoza and Laput [were] the middle name and surname, respectively of his mother. The name Rolusape was given to him by his father and the
same [was] not his registered name because during the old days, priests would not allow parents to name their children with names not found in
the Almanac; thus, Paciano [was] his chosen name and the same appeared in his Baptismal Certificate, (Exh. 20) issued by the Parish of the Blessed
Trinity of Talibon, Bohol. In his Birth Certificate, it [was] the name Rolusape which appeared based upon the data supplied by his father.
He had used the name Paciano during the time when he [was] still a secret agent under his uncle, Gen. Russo Sabalones, when the latter was still
the [c]hief of the C-2 in 1966 until 1967 and as such, he was issued a firearm. He likewise used said name at the time he was employed at the
Governors Office in Agusan and when he registered in the Civil Service Commission to conceal his identity to protect himself from those who were
after him.
From Marikina he proceeded to Davao and then to Butuan City where he was made to campaign for the candidacy of Gov. Eddie Rama. When the
latter won in the election, he was given a job at the Provincial Capitol and later became an agent of the PC in Butuan using the name, Paciano
Laput.
During his stay in Butuan, he met Virgie Pajigal, a manicurist who became his live-in partner.
On October 23, 1988 while he was at the Octagon Cockpit in Butuan with Sgt. Tambok, he was arrested by Capt. Ochate and was brought to the PC
Headquarter[s] in Libertad, Butuan City and was detained. Among the papers confiscated from him was his Identification Card No. 028-88, (Exh. 21)
issued by the PC Command bearing the name Paciano Laput.
On October 26, 1988 he was taken from the City Jail by Capt. Ochate and some soldiers, one of whom was Maj. Tiempo whom he met for the first
time.
On their way to Nasipit to board a vessel bound for Cebu City, Maj. Tiempo made him lie flat on his belly and stepped on his back and handcuffed
him. He cried in pain because of his sprained shoulder. A certain soldier also took his watch and ring.
Arriving in Cebu at 7:00 oclock in the morning, he and Virgie Pajigal, who followed him in the boat, were made to board a taxicab. Maj. Tiempo
alighted in certain place and talked to a certain guy. Thereafter, they were brought to the Reclamation Area and were forced to go down from the
vehicle but Virgie Pajigal held him tightly. They were again pulled out of the taxi but they resisted.
From the Capitol Building, they proceeded to CPDRC and on their way thereto, Maj. Tiempo sat beside him inside the taxi and boxed him on the
right cheek below the ear and pulled his cuffed hands apart.
At the Provincial Jail, he was physically examined by its resident physician, Dr. Dionisio Sadaya, and was also fingerprinted and photographed, (Exh.
21). He was issued a Medical Certificate, (Exh. 22).
He further stated that he [was] acquainted with his co-accused Timoteo Beronga, known to him as Timmy being also a bet caller in the cockpit.
(Tsn-Formentera, pp. 5-23, Feb. 26, 1991; Tsn-Abangan, pp. 3-33, Feb. 27, 1991; Tsn-Abangan, pp. 4-18, Apr. 10, 1991).
As surrebuttal witness, accused Rolusape Sabalones denied that he bribed a certain soldier because at the time he was arrested, his wallet as well
as his wristwatch and ring worth P2,000.00 each were confiscated and his hands tied behind his back.
He also denied the allegation of Maj. Tiempo that he offered the latter the amount of P1,000.000.00 to drop the case against him, the truth being
that while they were on board a vessel bound for Cebu City, Maj. Tiempo compelled him to tell [who] the real killers of his son [were] because he
knew that he (Rolusape Sabalones) was not responsible. The former also inquired from him as to the whereabouts of the carbine.
He also rebutted complainants testimony that upon their arrival here in Cebu City and while on board a taxicab, he directed the former [to] first go
around the city to locate a certain Romeo Cabaero, whom he did not know personally.[10]
Ruling of the Court of Appeals
Giving full credence to the evidence of the prosecution, the Court of Appeals affirmed the trial courts Decision convicting appellants of two counts
of murder and three counts of frustrated murder. Like the trial court, it appreciated the qualifying circumstance of treachery and rejected
appellants defense of alibi.
The Court of Appeals, however, ruled that the penalties imposed by the trial court were erroneous. Hence, for each count of murder, it sentenced
appellants to reclusion perpetua. For each count of frustrated murder, it imposed the following penalty: ten years (10) of prision mayor (medium),
as minimum, to seventeen years (17) years and four (4) months of reclusion temporal (medium), as maximum. Sustaining the trial court, the Court
of Appeals awarded indemnity of P20,000 to each of the victims of frustrated murder. However, it was silent on the indemnity of P50,000 awarded
by the trial court to the heirs of each of the two deceased.
Having imposed reclusion perpetua on the appellants, the Court of Appeals, as earlier noted, refrained from entering judgment and certified the
case to the Supreme Court for review, in conformity with Section 13, Rule 124 of the Rules of Court.
Hence, this appeal before this Court.[11]
The Issues
In his Brief,[12] Appellant Sabalones raised the following errors allegedly committed by the trial court:
I
The court a quo erred in finding that accused Sabalones and his friends left the house where his brother Sabalones Junior was lying in state and
went to their grisly destination amidst the dark and positioned themselves in defense of his turf against the invasion of a revengeful gang of the
supporters of Nabing Velez.
II
The court a quo erred in finding that accused Sabalones and his two co-accused were identified as among the four gunmen who fired at the victims.
III
The court a quo erred in overlooking or disregarding physical evidence that would have contradicted the testimony of prosecution witnesses Edwin
Santos and Rogelio Presores that the gunmen were shooting at them from a standing position.
IV
The court a quo erred in holding that the instant case is one of aberratio ictus, which is not a defense, and that the defense of alibi interposed by
the accused may not be considered.
V
The court a quo erred in not finding that the evidence of the prosecution has not overcome the constitutional presumption of innocence in favor of
the accused.
VI
The court a quo erred in not acquitting the accused on ground of reasonable doubt.
In a Manifestation dated December 20, 1995, Appellant Beronga, through counsel, adopted as his own the Brief of Sabalones.[13]
The foregoing assignment of errors shall be reformulated by the Court into these three issues or topics: (1) credibility of the witnesses and
sufficiency of the prosecution evidence, (2) defense of denial and alibi, and (3) characterization of the crimes committed and the penalty therefor.
The Courts Ruling
The appeal is devoid of merit.
First Issue:
Credibility of Witnesses and Sufficiency of Evidence
Well-entrenched is the tenet that this Court will not interfere with the trial courts assessment of the credibility of the witnesses, absent any
indication or showing that the trial court has overlooked some material facts or gravely abused its discretion,[14] especially where, as in this case,
such assessment is affirmed by the Court of Appeals. As this Court has reiterated often enough, the matter of assigning values to declarations at
the witness stand is best and most competently performed or carried out by a trial judge who, unlike appellate magistrates, can weigh such
testimony in light of the accuseds behavior, demeanor, conduct and attitude at the trial.[15] Giving credence to the testimonies of the prosecution
witnesses, the trial court concluded:
Stripped of unnecessary verbiage, this Court, given the evidence, finds that there is more realism in the conclusion based on a keener and realistic
appraisal of events, circumstances and evidentiary facts on record, that the gun slaying and violent deaths of Glenn Tiempo and Alfredo Nardo, and
the near fatal injuries of Nelson Tiempo, Rey Bolo and Rogelio Presores, resulted from the felonious and wanton acts of the herein accused for
mistaking said victims for the persons [who were] objects of their wrath.[16]
We stress that factual findings of the lower courts, the trial court and the Court of Appeals are, as a general rule, binding and conclusive upon the
Supreme Court.[17] We find nothing in the instant case to justify a reversal or modification of the findings of the trial court and the Court of
Appeals that appellants committed two counts of murder and three counts of frustrated murder.
Edwin Santos, a survivor of the assault, positively pointed to and identified the appellants as the authors of the crime. His categorical and
straightforward testimony is quoted hereunder:[18]
COURT:
Q You stated there was a gun fired. What happened next?
WITNESS:
A There was a rapid fire in succession.
Q When you heard this rapid firing, what did you do?
A I tried to look from where the firing came from.
Q After that, what did you find?
A I saw persons firing towards us.
Q Where were these persons situated when they were firing towards you?
A Near the foot of the electric post and close to the cemented wall.
Q This electric post, was that lighted at that moment?
A Yes, sir, it was lighted.
Q How far were these persons firing, to the place where you were?
A From here to there (The witness indicating the distance by pointing to a place inside the courtroom, indicating a distance of about 6 to 7 meters,
making the witness stand as the point of reference).
Q Were you able to know how many persons fired towards you?
A I only saw 3 to 4 persons.
Q How long did these persons fire the guns at you?
A Until we went home. The persons were still firing, until we went home.
Q You stated that you saw these persons who were firing at you. Do you know these persons?
A I can identify [them] when I [see] them.
Q Try to look around this courtroom, if these persons you saw who were firing at you are present in the courtroom[.]
A Yes, sir.
Q Can you point to these persons?
A Yes, sir.
Q Point at them.
COURT INTERPRETER:
The Court directed the witness to go down from the witness stand and [point] at them, Beronga and Alegarbes.
FISCAL GABIANA:
I would like to make it of record that on the bench of prisoner, only the two accused were seated.
COURT:
Make it of record that only two prisoners were present.
Q Now, Mr. Santos, aside from these two accused you identified as among those who fired [at] you on that evening, were there other persons that
you saw on that particular occasion who fired at you?
A Yes, sir, there were[;] if I can see them, I can identify them.
Corroborating the foregoing, Rogelio Presores, another survivor, also pointed to Timoteo Beronga, Teodulo Alegarbes and Roling Sabalones as the
perpetrators of the crime. His testimony proceeded in this manner:[19]
Q When you arrived at the residence of Stephen Lim, can you remember of any unusual incident that took place?
A Yes, sir.
Q What was that?
A When the jeep arrived, the car was following.
Q What happened next?
A When the jeep was near the gate, the car was following.
Q The car was following the jeep, at what distance?
A 3 to 4 meters.
Q While the car was following the jeep at that distance of 3 to 4 meters, what happened?
A All of a sudden, we heard the burst of gunfire.
Q From what direction was the gunfire?
A Through the direction of the jeep.
Q After hearing the gunfire, what happened?
A We looked at the jeep.
Q What did you see?
A We saw Alfredo Nardo and Glenn Tiempo and Rey Bolo f[a]ll to the ground. There were only 3.
Q Who was driving the jeep at that time?
A Alfredo Nardo.
Q What happened after that?
A So, I looked, whence the burst of gunfire came from.
Q What did you see from that gunfire?
A I saw 4 persons standing at the back of the fence.
Q What were those 4 persons doing when they were standing at the back of the fence?
A They were bringing long firearms.
Q Did you recognize these persons?
A I can clearly recognize one and the 3 persons[.] I can identify them, if I can see them again.
Q If you are shown these persons, can you recognize them? Can you name these persons?
A No, sir. Only their facial appearance.
Q What about the 3 persons?
A Thats why the 3 persons, I do not know them. I can recognize only their facial appearance.
Q What about one person?
A Yes, sir.
Q What is the name of the person?
A Roling Sabalones.
Q If Roling Sabalones is inside the courtroom, can you recognize Roling Sabalones?
A Yes, sir, he is around.
Q Can you point to Roling Sabalones?
A Yes, he is there (The witness pointing to the person who answered the name of Roling Sabalones).
Q I would like [you] again to please look around and see, if those persons whom you know through their faces, if they are here around?
A The two of them (The witness pointing to the 2 persons, who, when asked, answered that his name [was] Teofilo Beronga and the other [was]
Alegarbes).
Indeed, we have carefully waded through the voluminous records of this case and the testimonies of all the fifty-nine witnesses, and we find that
the prosecution has presented the required quantum of proof to establish that appellants are indeed guilty as charged. Appellants arguments, as
we shall now discuss, fail to rebut this conclusion.
Positive Identification
Appellants allege that the two witnesses could not have properly identified the appellants because, after the first burst of shooting, they both
crouched down, such that they could not have seen the faces of their assailants. This contention does not persuade. Both eyewitnesses testified
that the firing was not continuous; thus, during a lull in the firing, they raised their heads and managed a peek at the perpetrators. Edwin Santos
testified as follows:
Atty. Albino, counsel for accused Beronga:
Q You mean to say that when you bent you heard the successive shots, [and] you again raised your head. Is that correct?
A There were times that the shots were not in succession and continuous and that was the time I raised my head again.[20]
Like Santos, Rogelio Presores also stooped down when the firing started, but he raised his head during a break in the gunfire:
Atty. Albino:
Q So, what did you do when you first heard that one shot?
A So, after the first shot, we looked towards the direction we were facing and when we heard the second shot, that was the time we stooped
down.[21]
He further testified:
Atty. Acido: [Counsel for Appellant Sabalones]
Q And you said you stooped down inside the car when you heard the first firing to the jeep. Is that what you want the Court to understand[?]
Presores:
A Yes, sir.
Q So, you never saw who fired the successive shots to the car as you said you stooped down inside the car?
A The bursts of gunfire stopped for a while and that was the time I reared of [sic] my head.
Q And that was the first time you saw them?
A Yes, sir.[22]
The records clearly show that two vehicles proceeded to the house of Stephen Lim on that fateful day. The first was the jeep where Alfredo Nardo,
Glenn Tiempo and Rey Bolo were riding. About three to four meters behind was the second car carrying Nelson Tiempo, Guillermo Viloria, Rogelio
Oliveros and the two prosecution witnesses -- Edwin Santos and Rogelio Presores.[23] As stated earlier, said witnesses attested to the fact that
after the first volley of shots directed at the jeep, they both looked at the direction where the shots were coming from, and they saw their friends
in the jeep falling to the ground, as well as the faces of the perpetrators.[24] It was only then that a rapid succession of gunshots were directed at
them, upon which they started crouching to avoid being hit.
Hence, they were able to see and identify the appellants, having had a good look at them after the initial burst of shots. We stress that the normal
reaction of a person is to direct his sights towards the source of a startling shout or occurrence. As held in People v. Dolar,[25] the most natural
reaction for victims of criminal violence is to strive to see the looks and faces of their assailants and to observe the manner in which the crime is
committed.
In bolstering their claim that it was impossible for the witnesses to have identified them, appellants further aver that the crime scene was dark,
there being no light in the lampposts at the time. To prove that the service wire to the street lamps at the Mansueto Compound was disconnected
as early as December 1984 and reconnected only on June 27, 1985, they presented the testimonies of Vicente Cabanero,[26] Remigio Villaver,[27]
Fredo Canete[28]and Edward Gutang.[29] The trial court, however, did not lend weight to said testimonies, preferring to believe the statement of
other prosecution witnesses that the place was lighted during that time.
The Court of Appeals sustained said findings by citing the testimonies of defense witnesses. Fredo Canete of the Visayan Electric Company (VECO),
for instance, admitted that it was so easy to connect and disconnect the lights. He testified thus:
Atty. Kintanar:
Q Now, as a cutter, what instruments do you usually use in cutting the electrical connection of a certain place?
Canete:
A Pliers and screw driver.
Q Does it need xxx very sophisticated instruments to disconnect the lights?
A No, these are the only instruments we use.
Q Ordinary pliers and ordinary screw driver?
A Yes, sir.
Q And does [one] need to be an expert in electronic [sic] in order to conduct the disconnection?
A No, sir.
Q In other words, Mr. Canete, any ordinary electrician can cut it?
A That is if they are connected with the Visayan Electric Company.
Q What I mean is that, can the cutting be done by any ordinary electrician?
A Yes, sir.[30]
Said witness even admitted that he could not recall if he did in fact cut the electrical connection of the Mansueto Compound.[31] The Court of
Appeals further noted that none of the above witnesses were at the crime scene at or about the exact time that the ambush occurred. Thus, none
was in a position to state with absolute certainty that there was allegedly no light to illuminate the gunmen when they rained bullets on the
victims.[32]
Even assuming arguendo that the lampposts were not functioning at the time, the headlights of the jeep and the car were more than sufficient to
illuminate the crime scene.[33] The Court has previously held that the light from the stars or the moon, an oven, or a wick lamp or gasera can give
ample illumination to enable a person to identify or recognize another.[34] In the same vein, the headlights of a car or a jeep are sufficient to
enable eyewitnesses to identify appellants at the distance of 4 to 10 meters.
Extrajudicial Statement of Beronga
Appellants insist that Berongas extrajudicial statement was obtained through violence and intimidation. Citing the res inter alios acta rule, they also
argue that the said statement is inadmissible against Sabalones. Specifically, they challenge the trial courts reliance on the following portions of
Berongas statement:
Q After Roling knew that Na[b]ing Velez was killed, have you observed [if] Roling and his companions prepared themselves for any eventuality?
A It did not take long after we knew that Na[b]ing was killed, somebody called up by telephone looking for Roling, and this was answered by Roling
but we did not know what they were conversing about and then Roling went back to the house of Junior after answering the phone. And after
more than two hours, we heard the sound of engines of vehicles arriving, and then Meo, the man who was told by Roling to guard, shouted saying:
They are already here[;] after that, Roling came out carrying a carbine accompanied by Tsupe, and not long after we heard gunshots and because of
that we ran towards the house where the wake was. But before the gun-shots, I heard Pedring Sabalones father of Roling saying: You clarify, [t]hat
you watch out for mistake[n] in identity, and after that shout, gunshots followed. [sic] Then after the gun-shots Roling went back inside still
carrying the carbine and shouted: GATHER THE EMPTY SHELLS AND MEO[,] YOU BRING A FLASHLIGHT, and then I was called by Meo to help him
gather the empty shells of the carbine and also our third companion to gather the empty shells.
These arguments have no merit. In the first place, it is well to stress that appellants were convicted based primarily on the positive identification of
the two survivors, Edwin Santos and Rogelio Presores, and not only on the extrajudicial statement, which merely corroborates the eyewitness
testimonies. Thus, said arguments have no relevance to this case. As the Court held in People vs. Tidula:[35] Any allegation of violation of rights
during custodial investigation is relevant and material only to cases in which an extrajudicial admission or confession extracted from the accused
becomes the basis of their conviction.
In any case, we sustain the trial courts holding, as affirmed by the Court of Appeals, that the extrajudicial statement of Beronga was executed in
compliance with the constitutional requirements.[36] Extrajudicial confessions, especially those which are adverse to the declarants interests are
presumed voluntary, and in the absence of conclusive evidence showing that the declarants consent in executing the same has been vitiated, such
confession shall be upheld.[37]
The exhaustive testimony of Sgt. Miasco, who undertook the investigation, shows that the appellant was apprised of his constitutional rights to
remain silent and to have competent and independent counsel of his own choice.[38] Said witness also stated that Beronga was assisted by Atty.
Marcelo Guinto during the custodial investigation.[39] In fact, Atty. Guinto also took the witness stand and confirmed that Appellant Beronga was
informed of his rights, and that the investigation was proper, legal and not objectionable. Indeed, other than appellants bare allegations, there was
no showing that Berongas statement was obtained by force or duress.[40]
Equally unavailing is appellants reliance on the res inter alios acta rule under Section 30, Rule 130 of the Rules of Court, which provides:
The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after
the conspiracy is shown by evidence other than such act or declaration.
Appellants assert that the admission referred to in the above provision is considered to be against a co-conspirator only when it is given during the
existence of the conspiracy. They argue that Berongas statement was made after the termination of the conspiracy; thus, it should not be admitted
and used against Sabalones.
The well-settled rule is that the extrajudicial confession of an accused is binding only upon himself and is not admissible as evidence against his co-
accused, it being mere hearsay evidence as far as the other accused are concerned.[41] But this rule admits of exception. It does not apply when
the confession, as in this case, is used as circumstantial evidence to show the probability of participation of the co-accused in the killing of the
victims[42] or when the confession of the co-accused is corroborated by other evidence.[43]
Berongas extrajudicial statement is, in fact, corroborated by the testimony of Prosecution Witness Jennifer Binghoy. Pertinent portions of said
testimony are reproduced hereunder:
Q While you were at the wake of Jun Sabalones and the group were sitting with Roling Sabalones, what were they doing?
A They were gathered in one table and they were conversing with each other.
xxxxxxxxx
Q On that same date, time and place, at about 10:00 [i]n the evening, can you remember if there was unusual incident that took place?
A I heard over the radio at the Sabalones Family that a certain Nabing Velez was shot.
Q That [a] certain Nabing Velez was shot? What else xxx transpired?
A I observed that their reactions were so queer, - as if they were running.
xxxxxxxxx
Q In that evening of June 1, 1985, when you went there at the house of Jun Sabalones, have you seen an armalite?
A Yes, sir.
Q Where did you see this armalite?
A At the table where they were conversing.
Q How many armalites or guns [did you see] that evening in that place?
A Two (2).
xxxxxxxxx
Q This armalite that you saw, - how far was this in relation to the groups of Sabalones?
A There (The witness indicating a distance of about 4 to 5 meters).
ATTY. KINTANAR:
Q When you looked xxx through the window and saw there were two vehicles and there were bursts of gunfire, what happened after that?
A I did not proceed to look xxx through the window because I stooped down.
Q When you stooped down, what happened?
A After the burst of gunfire, I again opened the window.
Q And when again you opened the window, what happened?
A I saw two persons going towards the jeep.
Q What transpired next after [you saw] those 2 persons?
A When they arrived there, they nodded their head[s].
Q After that, what happened?
A So, they went back to the direction where they came from, going to the house of Sabalones.
Q While they were going to the direction of the house of Sabalones, what transpired?
A I saw 5 to 6 persons coming from the highway and looking to the jeep, and before they reached the jeep, somebody shouted that its ours.
Q Who shouted?
A The voice was very familiar to me.
Q Whose voice?
A The voice of Roling Sabalones.
Q What else have you noticed during the commotion [when] wives were advising their husbands to go home?
A They were really in chaos.[44]
A careful reading of her testimony buttresses the finding of the trial court that Rolusape Sabalones and his friends were gathered at one table,
conversing in whispers with each other, that there were two rifles on top of the table, and that they became panicky after hearing of the death of
Nabing Velez on the radio. Hence, the observation of the trial court that they went to their grisly destination amidst the dark and positioned
themselves in defense of his turf against the invasion of a revengeful gang of supporters of the recently slain Nabing Velez.[45]
Alleged Inconsistencies
Appellants also allege that the prosecution account had inconsistencies relating to the number of shots heard, the interval between gunshots and
the victims positions when they were killed. These, however, are minor and inconsequential flaws which strengthen, rather than impair, the
credibility of said eyewitnesses. Such harmless errors are indicative of truth, not falsehood, and do not cast serious doubt on the veracity and
reliability of complainants testimony.[46]
Appellants further claim that the relative positions of the gunmen, as testified to by the eyewitnesses, were incompatible with the wounds
sustained by the victims. They cite the testimony of Dr. Ladislao Diola, who conducted the autopsy on Glenn Tiempo. He declared that the victim
must necessarily be on a higher level than the assailant, in the light of the path of the bullet from the entrance wound to where the slug was
extracted. This finding, according to appellant, negates the prosecutions account that the appellants were standing side by side behind a wall when
they fired at the victims. If standing, appellants must have been on a level higher than that of the occupants of the vehicles; if beside each other,
they could not have inflicted wounds which were supposed to have come from opposite angles.
We are not persuaded. The defense presumes that the victims were sitting still when they were fired upon, and that they froze in the same position
during and after the shooting. This has no testimonial foundation. On the contrary, it was shown that the victims ducked and hid themselves, albeit
in vain, when the firing began. After the first volley, they crouched and tried to take cover from the hail of bullets. It would have been unnatural for
them to remain upright and still in their seats. Hence, it is not difficult to imagine that the trajectories of the bullet wounds varied as the victims
shifted their positions. We agree with the following explanation of the Court of Appeals:
The locations of the entry wounds can readily be explained. xxx Glenn Tiempo, after looking in the direction of the explosion, turned his body
around; and since the ambushers were between the jeep and the car, he received a bullet in his right chest (wound no. 1) which traveled to the
left. As to wound No. 2, it can be explained by the spot where Major Tiempo found his fallen son.
Atty. Kintanar:
Q: Upon being informed by these occupants who were ambushed and [you] were able to return the car, what did you do?
Major Tiempo:
A: I immediately got soldiers and we immediately proceeded to the area or to the place where my fallen son was located and when we reached x x
x the place, I saw my fallen son [in] a kneeling position where both knees [were] touching the ground and the toes also and the forehead was
touching towards the ground. (TSN, Feb. 12, 1988, p. 6)
In such position, the second bullet necessarily traveled upwards in relation to the body, and thus the entry wound should be lower than the exit
wound. There is no showing that both wounds were inflicted at the same time.[47]
In any event, the witnesses saw that the appellants were the gunmen who were standing side by side firing at them. They could have been in a
different position and in another hiding place when they first fired, but this is not important. They were present at the crime scene, and they were
shooting their rifles at the victims.
Aberratio Ictus
Appellants likewise accuse the trial court of engaging in conjecture in ruling that there was aberratio ictus in this case. This allegation does not
advance the cause of the appellants. It must be stressed that the trial court relied on the concept of aberratio ictus to explain why the appellants
staged the ambush, not to prove that appellants did in fact commit the crimes. Even assuming that the trial court did err in explaining the motive of
the appellants, this does not detract from its findings, as affirmed by the Court of Appeals and sustained by this Court in the discussion above, that
the guilt of the appellants was proven beyond reasonable doubt.
In any event, the trial court was not engaging in conjecture in so ruling. The conclusion of the trial court and the Court of Appeals that the
appellants killed the wrong persons was based on the extrajudicial statement of Appellant Beronga and the testimony of Jennifer Binghoy. These
pieces of evidence sufficiently show that appellants believed that they were suspected of having killed the recently slain Nabing Velez, and that
they expected his group to retaliate against them. Hence, upon the arrival of the victims vehicles which they mistook to be carrying the avenging
men of Nabing Velez, appellants opened fire. Nonetheless, the fact that they were mistaken does not diminish their culpability. The Court has held
that mistake in the identity of the victim carries the same gravity as when the accused zeroes in on his intended victim.[48]
Be that as it may, the observation of the solicitor general on this point is well-taken. The case is better characterized as error in personae or
mistake in the identity of the victims, rather than aberratio ictus which means mistake in the blow, characterized by aiming at one but hitting the
other due to imprecision in the blow.
Second Issue:
Denial and Alibi
Appellants decry the lower courts disregard of their defense of alibi. We disagree. As constantly enunciated by this Court, the established doctrine
requires the accused to prove not only that he was at some other place at the time of the commission of the crime, but that it was physically
impossible for him at the time to have been present at the locus criminis or its immediate vicinity.[49] This the appellants miserably failed to do.
Appellant Beronga testified that, at the time of the incident, he was in his residence in Lapulapu City, which was not shown to be so remote and
inaccessible that it precluded his presence in Mansueto Subdivision. The alibi of Sabalones is even more unworthy of belief; he sought to establish
that he was a mere 20-25 meters away from the scene of the crime. He was allegedly in the house of his brother who was lying in state, which was
so near the ambush site that some of the defense witnesses even testified that they were terrified by the gunfire. Clearly, appellants failed to
establish the requisites of alibi.
Furthermore, the defense of alibi cannot overcome the positive identification of the appellants.[50] As aptly held by this Court in People v.
Nescio:[51]
Alibi is not credible when the accused-appellant is only a short distance from the scene of the crime. The defense of alibi is further offset by the
positive identification made by the prosecution witnesses. Alibi, to reiterate a well-settled doctrine, is accepted only upon the clearest proof that
the accused-appellant was not or could not have been at the crime scene when it was committed.
Flight
Appellants further object to the finding that Sabalones, after the incident, made himself scarce from the place of commission. He left for Manila,
thence Mindanao on the supposition that he want[ed] to escape from the wrath of Maj. Tiempo and his men for the death of Glenn Tiempo and
the near fatal shooting of the other son or from the supporters of Nabing Velez. x x x On his supposedly borrowed freedom, he jumped bail and hid
himself deeper into Mindanao, under a cloak of an assumed name. Why, did his conscience bother him for comfort?[52]
Appellants rationalized that Sabalones was forced to jump bail in order to escape two groups, who were allegedly out to get him, one of Nabing
Velez and the other of Major Tiempo. Their ratiocination is futile. It is well-established that the flight of an accused is competent evidence to
indicate his guilt, and flight, when unexplained, is a circumstance from which an inference of guilt may be drawn.[53] It must be stressed,
nonetheless, that appellants were not convicted based on legal inference alone but on the overwhelming evidence presented against them.
Third Issue:
Crime and Punishment
We agree with the appellate court that accused-appellants are guilty of murder for the deaths of Glenn Tiempo and Alfredo Nardo. The allegation
of treachery as charged in the Information was duly proven by the prosecution. Treachery is committed when two conditions concur, namely, that
the means, methods, and forms of execution employed gave the person attacked no opportunity to defend himself or to retaliate; and that such
means, methods and forms of execution were deliberately and consciously adopted by the accused without danger to his person.[54] These
requisites were evidently present when the accused, swiftly and unexpectedly, fired at the victims who were inside their vehicles and were in no
position and without any means to defend themselves.
The appellate court also correctly convicted them of frustrated murder for the injuries sustained by Nelson Tiempo, Rey Bolo and Rogelio Presores.
As evidenced by the medical certificates and the testimony of Dr. Miguel Mancao who attended to the victims, Nelson Tiempo sustained a neck
wound which completely shattered his trachea and rendered him voiceless, as well as a wound on the right chest which penetrated his axilla but
not his chest cavity.[55] Rey Bolo sustained three injuries which affected his clavicle, ribs and lungs.[56] Rogelio Presores, on the other hand,
sustained an injury to his lungs from a bullet wound which entered his right chest and exited through his back.[57]
The wounds sustained by these survivors would have caused their death had it not been for the timely medical intervention. Hence, we sustain the
ruling of the Court of Appeals that appellants are guilty of three counts of frustrated murder.
We also uphold the Court of Appeals modification of the penalty for murder, but not its computation of the sentence for frustrated murder.
For each of the two counts of murder, the trial court imposed the penalty of fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal (medium), as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal (maximum), as maximum. This is
incorrect. Under Article 248 of the Revised Penal Code, the imposable penalty is reclusion temporal, in its maximum period, to death. There being
no aggravating or mitigating circumstance, aside from the qualifying circumstance of treachery, the appellate court correctly imposed reclusion
perpetua for murder.
The Court of Appeals, however, erred in computing the penalty for each of the three counts of frustrated murder. It sentenced appellants to
imprisonment of ten years of prision mayor (medium) as minimum to seventeen years and four months of reclusion temporal (medium) as
maximum. It modified the trial courts computation of eight (8) years of prision mayor (minimum), as minimum, to fourteen (14) years and eight (8)
months of reclusion temporal (minimum) as maximum.
Under Article 50 of the Revised Penal Code, the penalty for a frustrated felony is the next lower in degree than that prescribed by law for the
consummated felony x x x. The imposable penalty for frustrated murder, therefore, is prision mayor in its maximum period to reclusion temporal in
its medium period.[58] Because there are no aggravating or mitigating circumstance as the Court of Appeals itself held,[59] the penalty prescribed
by law should be imposed in its medium period. With the application of the Indeterminate Sentence Law, the penalty for frustrated murder should
be 8 years of prision mayor (minimum), as minimum, to 14 years and 8 months of reclusion temporal (minimum) as maximum.
Although the Court of Appeals was silent on this point, the trial court correctly ordered the payment of P50,000 as indemnity to the heirs of each of
the two murdered victims. In light of current jurisprudence, this amount is awarded without need of proof other than the fact of the victims
death.[60] The trial court and the CA, however, erred in awarding indemnity of P20,000 each to Nelson Tiempo, Rogelio Presores and Rey Bolo.
There is no basis, statutory or jurisprudential, for the award of a fixed amount to victims of frustrated murder. Hence, they are entitled only to the
amounts of actual expenses duly proven during the trial.
Thus, Nelson Tiempo, who was treated for a gunshot wound on the neck which shattered his trachea, should be awarded indemnity of P21,594.22
for his medical expenses. This is evidenced by a statement of account from Cebu Doctors Hospital.[61]
Rogelio Presores, who was likewise treated for gunshot wound in the same hospital, presented a statement of account amounting to P5,412.69 for
his hospitalization.[62] Hence, he is likewise entitled to indemnity in the said amount.
Rey Bolo, on the other hand, incurred an expense of P9,431.10 for the treatment of his gunshot wounds, as evidenced by a statement of account
from the same hospital.[63] This amount should be awarded to him as indemnity.
WHEREFORE, the appeal is DENIED and the assailed Decision is AFFIRMED. However, the penalties are hereby MODIFIED as follows:
1) In Crim. Case No. CBU-9257, for MURDER, the accused-appellants are each hereby sentenced to reclusion perpetua and to indemnify, jointly and
severally, the heirs of the deceased, Glenn Tiempo, in the sum of P50,000;
2) In Crim. Case No. CBU-9258, for MURDER, the accused-appellants are each hereby sentenced to reclusion perpetua and to indemnify, jointly and
severally, the heirs of the deceased, Alfredo Nardo, in the sum of P50,000;
3) In Crim. Case No. CBU-9259, for FRUSTRATED MURDER, the accused-appellants are each hereby sentenced to suffer the penalty of 8 years of
prision mayor (minimum), as minimum, to 14 years and 8 months of reclusion temporal (minimum) as maximum; and to jointly and severally pay
the victim, Rey Bolo, in the sum of P9,431.10 as actual damages;
4) In Crim Case No. CBU-9260, for FRUSTRATED MURDER, the accused-appellants are hereby sentenced to suffer the penalty of 8 years of prision
mayor (minimum), as minimum, to 14 years and 8 months of reclusion temporal (minimum) as maximum; and to jointly and severally indemnify
the victim, Rogelio Presores, in the sum of P5,412.69 for actual damages;
5) In Crim. Case No. CBU-9261 for FRUSTRATED MURDER, the accused-appellants are hereby sentenced to suffer the penalty of 8 years of prision
mayor (minimum), as minimum, to 14 years and 8 months of reclusion temporal (minimum) as maximum; and to jointly and severally indemnify
the victim, Nelson Tiempo, in the sum of P21,594.22 as actual damages.
Let copies of this Decision be furnished the Secretary of Interior and Local Government and the Secretary of Justice so that Accused Eufemio
Cabanero may be brought to justice.
Costs against appellants.
SO ORDERED.
Davide, Jr., (Chairman), Bellosillo, Vitug and Quisumbing, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-26298 January 20, 1927
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
JULIAN ERINIA Y VINOLLA, defendant-appellant.
OSTRAND, J.:
This is an appeal from a judgment of the Court of First Instance of Manila finding the defendant guilty of the crime of consummated rape and
sentencing him to suffer seventeen years, four months and one day of reclusion temporal, with the accessory penalties provided by law and to pay
the costs.
The victim of the crime was a child of 3 years and 11 months old and the evidence is conclusive that the defendant endeavored to have carnal
intercourse with her, but there may be some doubt whether he succeeded in penetrating the vagina before being disturbed by the timely
intervention of the mother and the sister of the child. The physician who examined the genital organ of the child a few hours after the commission
of the crime found a slight inflammation of the exterior parts of the organ, indicating that an effort had been made to enter the vagina, but in
testifying before the court he expressed doubts as to whether the entry had been effected. The mother of the child testified that she found its
genital organ covered with a sticky substance, but that cannot be considered conclusive evidence of penetration.
It has been suggested that the child was of such tender age that penetration was impossible; that the crime of rape consequently was impossible of
consummation; and that, therefore, the offense committed should be treated only as abusos deshonestos. We do not think so. It is probably true
that a complete penetration was impossible, but such penetration is not essential to the commission of the crime; it is sufficient if there is a
penetration of the labia. In the case of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L. R. A., 316) where the offended party was a child of the
age of 3 years and 8 months the testimony of several physicians was to the effect that her labia of the privates of a child of that age can be entered
by a man's male organ to the hymen and the defendant was found guilty of the consummated crime rape.
There being no conclusive evidence of penetration of the genital organ of the offended party, the defendant is entitled to the benefit of the doubt
and can only be found guilty of frustrated rape, but in view of the fact that he was living in the house of the parents of the child as their guest, the
aggravating circumstance of abuse of confidence existed and the penalty must therefore be imposed in its maximum degree.
The judgment appealed from is modified and the defendant-appellant is hereby found guilty of the crime of frustrated rape and is sentenced to
suffer twelve years of prision mayor, with the accessory penalties prescribed by law, and with the costs in both instances. So ordered.
Johnson, Street, Villamor, Romualdez and Villa-Real, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-43530 August 3, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
AURELIO LAMAHANG, defendant-appellant.
RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of Iloilo, finding him guilty of
attempted robbery and sentencing him to suffer two years and four months of prision correccional and to an additional penalty of ten years and
one day of prision mayor for being an habitual delinquent, with the accessory penalties of the law, and to pay the costs of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R. Fuentes streets of the City of Iloilo,
caught the accused in the act of making an opening with an iron bar on the wall of a store of cheap goods located on the last named street. At that
time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The accused had only succeeded in breaking one board and in
unfastening another from the wall, when the policeman showed up, who instantly arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and the Solicitor-General, as
constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical relation to a particular, concrete
offense; that, which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to its realization and
consummation. The attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is ambiguous, is not a juridical
fact from the standpoint of the Penal Code. There is no doubt that in the case at bar it was the intention of the accused to enter Tan Yu's store by
means of violence, passing through the opening which he had started to make on the wall, in order to commit an offense which, due to the timely
arrival of policeman Tomambing, did not develop beyond the first steps of its execution. But it is not sufficient, for the purpose of imposing penal
sanction, that an act objectively performed constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like
the logical and natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one of the offenses
defined and punished by the Code; it is necessary to prove that said beginning of execution, if carried to its complete termination following its
natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen
into a concrete offense. Thus, in case of robbery, in order that the simple act of entering by means of force or violence another person's dwelling
may be considered an attempt to commit this offense, it must be shown that the offender clearly intended to take possession, for the purpose of
gain, of some personal property belonging to another. In the instant case, there is nothing in the record from which such purpose of the accused
may reasonably be inferred. From the fact established and stated in the decision, that the accused on the day in question was making an opening
by means of an iron bar on the wall of Tan Yu's store, it may only be inferred as a logical conclusion that his evident intention was to enter by
means of force said store against the will of its owner. That his final objective, once he succeeded in entering the store, was to rob, to cause
physical injury to the inmates, or to commit any other offense, there is nothing in the record to justify a concrete finding.1avvphil.ñet
It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage is wanting, the nature of the action intended
(accion fin) cannot exactly be ascertained, but the same must be inferred from the nature of the acts executed (accion medio). Hence, the necessity
that these acts be such that by their very nature, by the facts to which they are related, by the circumstances of the persons performing the same,
and by the things connected therewith, they must show without any doubt, that they are aimed at the consummation of a crime. Acts susceptible
of double interpretation , that is, in favor as well as against the culprit, and which show an innocent as well as a punishable act, must not and can
not furnish grounds by themselves for attempted nor frustrated crimes. The relation existing between the facts submitted for appreciation and the
offense which said facts are supposed to produce must be direct; the intention must be ascertained from the facts and therefore it is necessary, in
order to avoid regrettable instances of injustice, that the mind be able to directly infer from them the intention of the perpetrator to cause a
particular injury. This must have been the intention of the legislator in requiring that in order for an attempt to exist, the offender must commence
the commission of the felony directly by overt acts, that is to say, that the acts performed must be such that, without the intent to commit an
offense, they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the offense, are not punished except
when they are aimed directly to its execution, and therefore they must have an immediate and necessary relation to the offense."
Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in order to declare that such and such overt acts constitute
an attempted offense it is necessary that their objective be known and established, or that said acts be of such nature that they themselves should
obviously disclose the criminal objective necessarily intended, said objective and finality to serve as ground for the designation of the offense: . . . .
In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not constitute attempted robbery but
attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions of the Supreme Court of Spain therein cited). Under
article 280 of the Revised Penal Code, this offense is committed when a private person shall enter the dwelling of another against the latter's will.
The accused may be convicted and sentenced for an attempt to commit this offense in accordance with the evidence and the following allegation
contained in the information: "... the accused armed with an iron bar forced the wall of said store by breaking a board and unfastening another for
the purpose of entering said store ... and that the accused did not succeed in entering the store due to the presence of the policeman on beat Jose
Tomambing, who upon hearing the noise produced by the breaking of the wall, promptly approached the accused ... ." Under the circumstances of
this case the prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67;
U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused must be taken into consideration
the aggravating circumstances of nighttime and former convictions, — inasmuch as the record shows that several final judgments for robbery and
theft have been rendered against him — and in his favor, the mitigating circumstance of lack of instruction. The breaking of the wall should not be
taken into consideration as an aggravating circumstance inasmuch as this is the very fact which in this case constitutes the offense of attempted
trespass to dwelling.
The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed with force, is prision
correccional in its medium and maximum periods and a fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding to
attempted trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and medium periods. Because of the presence of two
aggravating circumstances and one mitigating circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the same
Code, the accused is not entitled to credit for one-half of his preventive imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to dwelling, committed by means
of force, with the aforesaid aggravating and mitigating circumstances and sentenced to three months and one day of arresto mayor, with the
accessory penalties thereof and to pay the costs.
Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 79123-25 January 9, 1989
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EMELIANO TRINIDAD, accused-appellant.

MELENCIO-HERRERA, J.:
On the sole issue that the adduced evidence is insufficient to prove his guilt beyond reasonable doubt of two crimes of Murder and one of
Frustrated Murder with which he has been charged, accused Emeliano Trinidad appeals from the judgment of the Regional Trial Court, Branch 7,
Bayugan, Agusan del Sur.
From the testimony of the principal witness, Ricardo TAN, the prosecution presents the following factual version:
The deceased victim, Lolito Soriano, was a fish dealer based in Davao City. His helpers were TAN, a driver, and the other deceased victim Marcial
LAROA. On 19 January 1983, using a Ford Fiera, they arrived at Butuan City to sell fish. In the morning of 20 January 1983 SORIANO drove the Fiera
to Buenavista, Agusan del Norte, together with LAROA and a helper of one Samuel Comendador. TAN was left behind in Butuan City to dispose of
the fish left at the Langihan market. He followed SORIANO and LAROA, however, to Buenavista later in the morning.
While at Buenavista, accused Emeliano TRINIDAD, a member of the Integrated National Police, assigned at Nasipit Police Station, and residing at
Baan, Butuan City, asked for a ride to Bayugan, Agusan del Sur, which is on the way to Davao City. TRINIDAD was in uniform and had two firearms,
a carbine, and the other, a side-arm .38 caliber revolver. SORIANO, LAROA, TAN, and TRINIDAD then left Butuan on 20 January 1983 at about 5:20
P.M. bound for Davao City. TAN was driving the Fiera. Seated to his right was SORIANO, LAROA and the accused TRINIDAD, in that order. When
they reached the stretch between El Rio and Afga, TRINIDAD advised them to drive slowly because, according to him, the place was dangerous. All
of a sudden, TAN heard two gunshots. SORIANO and LAROA slumped dead. TAN did not actually see the shooting of LAROA but he witnessed the
shooting of SORIANO having been alerted by the sound of the first gunfire. Both were hit on the head. TRINIDAD had used his carbine in killing the
two victims.
TAN then hurriedly got off the Fiera, ran towards the direction of Butuan City and hid himself in the bushes. The Fiera was still running slowly then
but after about seven (7) to ten (10) meters it came to a halt after hitting the muddy side of the road. TAN heard a shot emanating from the Fiera
while he was hiding in the bushes.
After about twenty (20) to thirty (30) minutes, when a passenger jeep passed by, TAN hailed it and rode on the front seat. After a short interval of
time, he noticed that TRINIDAD was seated at the back. Apparently noticing TAN as well, TRINIDAD ordered him to get out and to approach him
(TRINIDAD) but, instead, TAN moved backward and ran around the jeep followed by TRINIDAD. When the jeep started to drive away, TAN clung to
its side. TRINIDAD fired two shots, one of which hit TAN on his right thigh. As another passenger jeep passed by, TAN jumped from the first jeep
and ran to the second. However, the passengers in the latter jeep told him to get out not wanting to get involved in the affray. Pushed out, TAN
crawled until a member of the P.C. chanced upon him and helped him board a bus for Butuan City.
TRINIDAD's defense revolved around denial and alibi. He contended that he was in Cagayan de Oro City on the date of the incident, 20 January
1983. At that time, he was assigned as a policeman at Nasipit Police Station, Agusan del Norte. He reported to his post on 19 January 1983 but
asked permission from his Station Commander to be relieved from work the next day, 20 January, as it was his birthday. He left Baan, his Butuan
City residence, at about 3:00 P.M. on 20 January 1983 and took a bus bound for Cagayan de Oro City. He arrived at Cagayan de Oro at around 8:00
P.M. and proceeded to his sister's house at Camp Alagar to get his subsistence allowance, as his sister was working thereat in the Finance Section.
At his sister's house he saw Sgt. Caalim, Mrs. Andoy, one Paelmo, in addition to his sister. Sgt. Caalim corroborated having seen TRINIDAD then.
Continuing, TRINIDAD claimed that he left Cagayan de Oro for Butuan at lunch time on 21 January 1983 arriving at the latter place around 6:00
P.M., and went to his house directly to get his service carbine. He was on his way to Nasipit to report for duty on 21 January 1983 when he was
arrested at around 6:00 P.M. at Buenavista, Agusan del Norte.
After joint trial on the merits and unimpressed by the defense by the Trial Court** sentenced the accused in an "Omnibus Decision", thus:
WHEREFORE PREMISES CONSIDERED, this Court finds Emeliano Trinidad GUILTY beyond reasonable doubt of the crimes of Murder and Frustrated
Murder.
In the Frustrated Murder, there being no mitigating circumstance, and taking into account the provisions of the Indeterminate Sentence Law,
accused Trinidad is meted out a penalty of:
1) 8 years and 1 day to 12 years of prision mayor medium;
2) to indemnify the complainant the amount of P 5,000.00; and
3) to pay the costs.
Likewise, in the two murder cases, Trinidad is accordingly sentenced:
1) to a penalty of Reclusion Perpetua in each case;
2) to indemnify the heirs of Marcial Laroa and Lolito Soriano the amount of P30,000.00 each; and
3) to pay the cost. (p. 14, RTC Decision, p. 28, Rollo).
Before us now, TRINIDAD claims that the Trial Court erred in giving full faith and credit to TAN's testimony who, TRINIDAD alleges, was an
unreliable witness. That is not so.
We find no variance in the statement made by TAN before the NAPOLCOM Hearing Officer that when TRINIDAD boarded the Fiera in Buenavista,
he (TAN) was not in the vehicle, and that made in open Court when he said that he was with TRINIDAD going to Butuan City on board the Fiera. For
the facts disclose that when TRINIDAD boarded the Fiera in Buenavista, TAN was still in Langihan distributing fish. The Fiera left for Buenavista,
driven by SORIANO between 6:00 to 7:00 A.M., while TAN followed only at 11:00, A.M. in another vehicle. So that when TRINIDAD boarded the
Fiera in Buenavista, TAN was not yet in that vehicle although on the return trip from Butuan City to Davao City, TAN was already on board. In fact,
TAN was the one driving. TAN's testimony clarifying this point reads:
Q Did you not say in your direct examination that you went to Buenavista, Agusan del Norte?
A We were in Langihan and since our fishes were not consumed there, we went to Buenavista.
Q Now, what time did you leave for Buenavista from Langihan?
A It was more or less at 6:00 to 7:00 o'clock.
Q You were riding the fish car which you said?
A I was not able to take the fish car in going to Buenavista because they left me fishes to be dispatched yet.
Q In other words, you did not go to Buenavista on January 20, 1983?
A I was able to go to Buenavista after the fishes were consumed.
Q What time did you go to Buenavista?
A It was more or less from 11:00 o'clock noon.
Q What transportation did you take?
A I just took a ride with another fish car because they were also going to dispatch fishes in Buenavista.
Q Now, who then went to Buenavista with the fish car at about 7:00 o'clock in the morning of January 20, 1983?
A Lolito Soriano and Marcia Laroa with his helper.
xxxxxx
Q Now, when this fish car returned to Butuan City who drove it?
A Lolito Soriano.
Q Were you with the fish car in going back to Langihan?
A Yes, sir. (T.S.N., December 6, 1985, pp. 53-54).
Felimon Comendador, also a fish vendor, and a resident of Butuan City, testified that he saw TRINIDAD riding in the Fiera on the front seat in the
company of TAN, SORIANO and LAROA, when the Fiera stopped by his house at Butuan City (TSN, November 5, 1985, pp. 32-33).
The other inconsistencies TRINIDAD makes much of, such as, that TAN was unsure before the NAPOLCOM Hearing Officer whether TRINIDAD was
wearing khaki or fatigue uniform but, in open Court, he testified positively that TRINIDAD was in khaki uniform; and that while TAN declared that
TRINIDAD was wearing a cap, prosecution witness Felimon Comendador said that he was not but was in complete fatigue uniform, are actually
trivial details that do not affect the positive identification of TRINIDAD that TAN has made nor detract from the latter's overall credibility.
Nor is there basis for TRINIDAD to contend that the absence of gunpowder burns on the deceased victims negates TAN's claim that they were shot
"point-blank." Actually, this term refers merely to the "aim directed straight toward a target" (Webster's Third New International Dictionary) and
has no reference to the distance between the gun and the target. And in point of fact, it matters not how far the assailant was at the time he shot
the victims, the crucial factor being whether he did shoot the victim or not.
TRINIDAD's defense of alibi is inherently weak and cannot prevail over the straightforward and detailed descriptive narration of TAN, thus:
Q Now, from Butuan City, where did you proceed?
A We proceeded to Davao.
Q Did you in fact reach Davao on that date?
A No, sir.
Q Could you tell the Court why you failed to reach Davao?
A Because we were held-up.
Q Who held-up you?
A Emeliano Trinidad, sir.
Q Are you referring to accused Emeliano Trinidad whom you pointed to the court awhile ago?
A Yes, sir.
Q Will you tell the Court how did Emeliano Trinidad holdup you?
A When we reach between El Rio and Afga, Trinidad advised us to run slowly because this place is dangerous. Then suddenly there were two gun
bursts.
Q Now, you heard two gun bursts. What happened? What did you see if there was any?
A I have found out that Lolito Soriano and Marcial Laroa already fall.
Q Fall dead?
A They were dead because they were hit at the head.
Q You mean to inform the Court that these two died because of that gun shot bursts?
A Yes, sir.
Q Did you actually see Trinidad shooting the two?
A I did not see that it was really Trinidad who shot Laroa but since I was already alerted by the first burst, I have seen that it was Trinidad who shot
Soriano.
Q What was the firearm used?
A Carbine, sir.
xxxxxx
Q Now, after you saw that the two fell dead, what did you do?
A I got out from the Ford Fiera while it was running.
xxxxxx
Q From the place where you were because you said you ran, what transpired next?
A I hid myself at the side of the jeep, at the bushes.
Q While hiding yourself at the bushes, what transpired?
A I heard one gun burst.
Q From what direction was that gun bursts you heard?
A From the Ford Fiera, sir.
Q After that, what happened?
A At around 20 to 30 minutes, I moved out from the place where I hid myself because I wanted to go back to Butuan, Then, I boarded the jeep and
sat at the front seat but I found out that Emeliano Trinidad was at the back seat.
Q When you found out that Trinidad was at the back, what happened?
A He ordered me to get out.
Q Now, when you got down, what happened?
A When I got out from the jeep, Trinidad also got out.
Q Tell the Court, what happened after you and Trinidad got out from the jeep?
A He called me because he wanted me to get near him.
Q What did you do?
A I moved backward.
'Q Now, what did Trinidad do?
A He followed me.
Q While Trinidad followed you, what happened?
A I ran away around the jeep.
Q Now, while you were running around the jeep, what happened?
A The driver drove the jeep.
Q Now, after that, what did you do?
A I ran after the jeep and then I was able to take the jeep at the side of it.
Q How about Trinidad, where was he at that time?
A He also ran, sir.
Q Now, when Trinidad ran after you what happened?
A Trinidad was able to catchup with the jeep and fired his gun.
Q Were you hit?
A At that time I did not know that I was hit because it was sudden.
Q When for the first time did you notice that you were hit?
A At the second jeep.
Q You mean to inform the Court that the jeep you first rode is not the very same jeep that you took for the second time?
A No, sir.
Q Now, when you have notice that you were hit, what did you do?
A At the first jeep that I took I was hit, so I got out from it and stood-up at the middle of the road so that I can catch up the other jeep.' (TSN,
December 6, 1985, pp. 44-49)
TAN's testimony remained unshaken even during cross- examination. No ill motive has been attributed to him to prevaricate the truth. He was in
the vehicle where the killing transpired was a witness to the actual happening, and was a victim himself who managed narrowly to escape death
despite the weaponry with which TRINIDAD was equipped.
The defense is correct, however, in contending that in the Frustrated Murder case, TRINIDAD can only be convicted of Attempted Murder.
TRINIDAD had commenced the commission of the felony directly by overt acts but was unable to perform all the acts of execution which would
have produced it by reason of causes other than his spontaneous desistance, such as, that the jeep to which TAN was clinging was in motion, and
there was a spare tire which shielded the other parts of his body. Moreover, the wound on his thigh was not fatal and the doctrinal rule is that
where the wound inflicted on the victim is not sufficient to cause his death, the crime is only Attempted Murder, the accused not having performed
all the acts of execution that would have brought about death (People vs. Phones, L-32754-5, July 21, 1978, 84 SCRA 167; People vs. Garcia, L-
40106, March 13, 1980, 96 SCRA 497).
But while the circumstances do spell out the two crimes of Murder, the penalty will have to be modified. For, with the abolition of capital
punishment in the 1987 Constitution, the penalty for Murder is now reclusion temporal in its maximum period to reclusion perpetua (People vs.
Lopez, et al. G.R. No. 71876-76, January 25, 1988 citing People vs. Gavarra, No. L-37673, October 30, 1987; People vs. Masangkay, G.R. No. 73461,
October 27, 1987). With no attending mitigating or aggravating circumstance, said penalty is imposable in its medium period or from eighteen (18)
years, eight (8) months and one (1) day to twenty (20) years. The penalty next lower in degree for purposes of the Indeterminate Sentence Law is
prision mayor, maximum, to reclusion temporal, medium, or from ten (10) years and one (1) day to seventeen (17) years and four (4) months
(Article 61, parag. 3, Revised Penal Code).
WHEREFORE, the guilt of the accused Emeliano Trinidad for the crimes of Murder (on two counts) and Attempted Murder, having been proven
beyond reasonable doubt, his conviction is hereby AFFIRMED and he is hereby sentenced as follows:
1) In each of Criminal Cases Nos. 79123-24 (Nos. 96 and 99 below) for Murder, he shall suffer the indeterminate penalty of ten (10) years and one
(1) day of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal, as maximum; to indemnify
the heirs of Marcial Laroa and Lolito Soriano, respectively, in the amount of P30,000.00 each; and to pay the costs.
2) In Criminal Case No. 79125 (No. 100 below) for Frustrated Murder, he is hereby found guilty only of Attempted Murder and sentenced to an
indeterminate penalty of six (6) months and one (1) day of prision correccional, as minimum, to six (6) years and one (1) day of prision mayor, as
maximum; to indemnify Ricardo Tan in the sum of P5,000,00; and to pay the costs.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88724 April 3, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.

MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-031-B before the Regional Trial Court, Branch II,
Borongan, Eastern Samar. The information filed in the said case reads as follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the offended party, accuses CEILITO ORITA alias LITO of the
crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at Victoria St., Poblacion, Borongan, Eastern Samar,
Philippines, and within the jurisdiction of this Honorable Court, above named accused with lewd designs and by the use of a Batangas knife he
conveniently provided himself for the purpose and with threats and intimidation, did, then and there wilfully, unlawfully and feloniously lay with
and succeeded in having sexual intercourse with Cristina S. Abayan against her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the witnesses for the People testified and the
exhibits were formally offered and admitted, the prosecution rested its case. Thereafter, the defense opted not to present any exculpatory
evidence and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the dispositive portion of which reads (pp.
59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @ LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond
reasonable doubt, with the aggravating circumstances of dwelling and nightime (sic) with no mitigating circumstance to offset the same, and
considering the provisions of the Indeterminate Sentence Law, imposes on accused an imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION
MAYOR, as minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S. ABAYAN, the amount of Four Thousand
(P4,000.00) Pesos, without subsidiary imprisonment in case of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29, 1988, the Court of Appeals rendered its decision,
the dispositive portion of which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty of the crime of rape, and consequently, sentenced to
suffer imprisonment of reclusion perpetua and to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988 decision and forwarded the case to this Court,
considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the
Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's College at Borongan, Eastern Samar. Appellant was a
Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her boarding house. Her classmates had just brought her home from a party (p. 44,
tsn, May 23, 1984). Shortly after her classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a sudden, somebody held
her and poked a knife to her neck. She then recognized appellant who was a frequent visitor of another boarder (pp. 8-9, ibid).
She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door which led to the first floor was locked from the
inside, appellant forced complainant to use the back door leading to the second floor (p. 77, ibid). With his left arm wrapped around her neck and
his right hand poking a "balisong" to her neck, appellant dragged complainant up the stairs (p. 14, ibid). When they reached the second floor, he
commanded her to look for a room. With the Batangas knife still poked to her neck, they entered complainant's room.
Upon entering the room, appellant pushed complainant who hit her head on the wall. With one hand holding the knife, appellant undressed
himself. He then ordered complainant to take off her clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and panty (p. 20,
ibid).
He ordered her to lie down on the floor and then mounted her. He made her hold his penis and insert it in her vagina. She followed his order as he
continued to poke the knife to her. At said position, however, appellant could not fully penetrate her. Only a portion of his penis entered her as she
kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount him. In this position, only a small part again of his penis was inserted into her
vagina. At this stage, appellant had both his hands flat on the floor. Complainant thought of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant pursued her and climbed the partition. When she saw him inside the room, she
ran to another room. Appellant again chased her. She fled to another room and jumped out through a window (p. 27, ibid).
Still naked, she darted to the municipal building, which was about eighteen meters in front of the boarding house, and knocked on the door. When
there was no answer, she ran around the building and knocked on the back door. When the policemen who were inside the building opened the
door, they found complainant naked sitting on the stairs crying. Pat. Donceras, the first policeman to see her, took off his jacket and wrapped it
around her. When they discovered what happened, Pat. Donceras and two other policemen rushed to the boarding house. They heard a sound at
the second floor and saw somebody running away. Due to darkness, they failed to apprehend appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical Certificate (Exhibit "A") which states:
Physical Examination — Patient is fairly built, came in with loose clothing with no under-clothes; appears in state of shock, per unambulatory.
PE Findings — Pertinent Findings only.
Neck- — Circumscribed hematoma at Ant. neck.
Breast — Well developed, conical in shape with prominent nipples; linear abrasions below (L) breast.
Back — Multiple pinpoint marks.
Extremities — Abrasions at (R) and (L) knees.
Vulva — No visible abrasions or marks at the perineal area or over the vulva, errythematous (sic) areas noted surrounding vaginal orifice, tender,
hymen intact; no laceration fresh and old noted; examining finger can barely enter and with difficulty; vaginal canal tight; no discharges noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable and vital inconsistencies and its incredibility
amounting to fabrication and therefore casted doubt to its candor, truth and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which are not sufficient to blur or cast doubt on the
witnesses' straightforward attestations. Far from being badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably
considered as manifestations of truthfulness on material points. These little deviations also confirm that the witnesses had not been rehearsed.
The most candid witnesses may make mistakes sometimes but such honest lapses do not necessarily impair their intrinsic credibility (People v.
Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution witnesses, discrepancies on minor
details must be viewed as adding credence and veracity to such spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-
41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be a strong indication of untruthfulness and lack
of spontaneity (People v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves a little
discussion which is, the testimony of the victim that the accused asked her to hold and guide his penis in order to have carnal knowledge of her.
According to the accused, this is strange because "this is the only case where an aggressor's advances is being helped-out by the victim in order
that there will be a consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the testimony of the victim ended
there. The victim testified further that the accused was holding a Batangas knife during the aggression. This is a material part of the victim's
testimony which the accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court on the credibility of witnesses should be
accorded the highest respect because it has the advantage of observing the demeanor of witnesses and can discern if a witness is telling the truth
(People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding the testimony of the victim (p 56,
Rollo):
As correctly pointed out in the memorandum for the People, there is not much to be desired as to the sincerity of the offended party in her
testimony before the court. Her answer to every question profounded (sic), under all circumstances, are plain and straightforward. To the Court
she was a picture of supplication hungry and thirsty for the immediate vindication of the affront to her honor. It is inculcated into the mind of the
Court that the accused had wronged her; had traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape was committed provided her testimony
is clear and free from contradiction and her sincerity and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA
487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400).
The victim in this case did not only state that she was raped but she testified convincingly on how the rape was committed. The victim's testimony
from the time she knocked on the door of the municipal building up to the time she was brought to the hospital was corroborated by Pat.
Donceras. Interpreting the findings as indicated in the medical certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of
Dr. Abude) declared that the abrasions in the left and right knees, linear abrasions below the left breast, multiple pinpoint marks, circumscribed
hematoma at the anterior neck, erythematous area surrounding the vaginal orifice and tender vulva, are conclusive proof of struggle against force
and violence exerted on the victim (pp. 52-53, Rollo). The trial court even inspected the boarding house and was fully satisfied that the narration of
the scene of the incident and the conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe enough to carry the weight of both accused and offended party without the
slightest difficulty, even in the manner as narrated. The partitions of every room were of strong materials, securedly nailed, and would not give way
even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al., G.R. No. L-48731, December 21, 1983, 126
SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony (opening) to the ground which was correctly estimated to be less than eight (8)
meters, will perhaps occasion no injury to a frightened individual being pursued. Common experience will tell us that in occasion of conflagration
especially occuring (sic) in high buildings, many have been saved by jumping from some considerable heights without being injured. How much
more for a frightened barrio girl, like the offended party to whom honor appears to be more valuable than her life or limbs? Besides, the exposure
of her private parts when she sought assistance from authorities, as corroborated, is enough indication that something not ordinary happened to
her unless she is mentally deranged. Sadly, nothing was adduced to show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is her having been rendered entirely naked by appellant and that even in her nudity, she
had to run away from the latter and managed to gain sanctuary in a house owned by spouses hardly known to her. All these acts she would not
have done nor would these facts have occurred unless she was sexually assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present other witnesses to corroborate the allegations in the complaint and the non-
presentation of the medico-legal officer who actually examined the victim. Suffice it to say that it is up to the prosecution to determine who should
be presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989;
People v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the medico-legal officer who actually examined the victim, the
trial court stated that it was by agreement of the parties that another physician testified inasmuch as the medico-legal officer was no longer
available. The accused did not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on its face. Some were not even substantiated
and do not, therefore, merit consideration. We are convinced that the accused is guilty of rape. However, We believe the subject matter that really
calls for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial court was of the belief that there is no
conclusive evidence of penetration of the genital organ of the victim and thus convicted the accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor General shares the same view.
Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:
Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious and
3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall
be present.
xxx xxx xxx
Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well as those which are frustrated and attempted, are
punishable.
A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender
performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted and consummated stages apply to the crime of rape.1âwphi1 Our concern
now is whether or not the frustrated stage applies to the crime of rape.
The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which would produce the felony and (2) that
the felony is not produced due to causes independent of the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212,
Justice Moreland set a distinction between attempted and frustrated felonies which is readily understood even by law students:
. . . A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against
his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the
purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he
has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all of
the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it can not be an attempt. The
essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous
cause or agency between the beginning of the commission of the crime and the moment when all of the acts have been performed which should
result in the consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of
the acts which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually attains his purpose and, from that
moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender, because he has
performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases (People v. Oscar, 48 Phil. 527;
People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21,
1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the
female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina
is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559
People v. Rabadan et al., 53 Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the crime of
rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People v. Eriña 50 Phil. 998 [1927] where We found the offender guilty of
frustrated rape there being no conclusive evidence of penetration of the genital organ of the offended party. However, it appears that this is a
"stray" decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal
Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a homicide is committed by reason or on the
occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead provision. The Eriña case, supra, might have
prompted the law-making body to include the crime of frustrated rape in the amendments introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the trial court relied on the testimony of Dr.
Zamora when he "categorically declared that the findings in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he
tossed back to the offended party the answer as to whether or not there actually was penetration." (p. 53, Rollo) Furthermore, the trial court
stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora and the equivocal
declaration of the latter of uncertainty whether there was penetration or not. It is true, and the Court is not oblivious, that conviction for rape
could proceed from the uncorroborated testimony of the offended party and that a medical certificate is not necessary (People v. Royeras People
v. Orteza, 6 SCRA 109, 113). But the citations the people relied upon cannot be applicable to the instant case. The testimony of the offended party
is at variance with the medical certificate. As such, a very disturbing doubt has surfaced in the mind of the court. It should be stressed that in cases
of rape where there is a positive testimony and a medical certificate, both should in all respect, compliment each other, for otherwise to rely on the
testimony alone in utter disregard of the manifest variance in the medical certificate, would be productive of mischievous results.
The alleged variance between the testimony of the victim and the medical certificate does not exist. On the contrary, it is stated in the medical
certificate that the vulva was erythematous (which means marked by abnormal redness of the skin due to capillary congestion, as in inflammation)
and tender. It bears emphasis that Dr. Zamora did not rule out penetration of the genital organ of the victim. He merely testified that there was
uncertainty whether or not there was penetration. Anent this testimony, the victim positively testified that there was penetration, even if only
partially (pp. 302, 304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx xxx xxx
Q What do you mean when you said comply, or what act do you referred (sic) to, when you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the victim's testimony if credible (People v.
Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v.
Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely corroborative and is not an
indispensable element in the prosecution of this case (People v. Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused because after a thorough review of the
records, We find the evidence sufficient to prove his guilt beyond reasonable doubt of the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is committed with the use of a deadly weapon, the
penalty shall be reclusion perpetua to death. The trial court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper
imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution and Our ruling in People v. Millora, et al., G.R.
Nos. L-38968-70, February 9, 1989, that the cited Constitutional provision did not declare the abolition of the death penalty but merely prohibits
the imposition of the death penalty, the Court has since February 2, 1987 not imposed the death penalty whenever it was called for under the
Revised Penal Code but instead reduced the same to reclusion perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion
perpetua, being a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of any mitigating or aggravating circumstances (in
relation to Article 63, paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano,
G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito Orita is hereby found guilty beyond reasonable
doubt of the crime of rape and sentenced to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.
EN BANC
[G.R. No. 129433. March 30, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y BELLO, accused.
DECISION
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita[1] finally did away with frustrated rape[2] and allowed only attempted rape and consummated rape to
remain in our statute books. The instant case lurks at the threshold of another emasculation of the stages of execution of rape by considering
almost every attempt at sexual violation of a woman as consummated rape, that is, if the contrary view were to be adopted. The danger there is
that that concept may send the wrong signal to every roaming lothario, whenever the opportunity bares itself, to better intrude with climactic
gusto, sans any restraint, since after all any attempted fornication would be considered consummated rape and punished as such. A mere strafing
of the citadel of passion would then be considered a deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the victim since by it he attained his
objective. All the elements of the offense were already present and nothing more was left for the offender to do, having performed all the acts
necessary to produce the crime and accomplish it. We ruled then that perfect penetration was not essential; any penetration of the female organ
by the male organ, however slight, was sufficient. The Court further held that entry of the labia or lips of the female organ, even without rupture of
the hymen or laceration of the vagina, was sufficient to warrant conviction for consummated rape. We distinguished consummated rape from
attempted rape where there was no penetration of the female organ because not all acts of execution were performed as the offender merely
commenced the commission of a felony directly by overt acts.[3] The inference that may be derived therefrom is that complete or full penetration
of the vagina is not required for rape to be consummated. Any penetration, in whatever degree, is enough to raise the crime to its consummated
stage.
But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of the female organ, even if there be no
rupture of the hymen or laceration of the vagina, to warrant a conviction for consummated rape. While the entry of the penis into the lips of the
female organ was considered synonymous with mere touching of the external genitalia, e.g., labia majora, labia minora, etc.,[4] the crucial
doctrinal bottom line is that touching must be inextricably viewed in light of, in relation to, or as an essential part of, the process of penile
penetration, and not just mere touching in the ordinary sense. In other words, the touching must be tacked to the penetration itself. The
importance of the requirement of penetration, however slight, cannot be gainsaid because where entry into the labia or the lips of the female
genitalia has not been established, the crime committed amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining whether rape has been committed either in its attempted or in its consummated
stage; otherwise, no substantial distinction would exist between the two, despite the fact that penalty-wise, this distinction, threadbare as it may
seem, irrevocably spells the difference between life and death for the accused - a reclusive life that is not even perpetua but only temporal on one
hand, and the ultimate extermination of life on the other. And, arguing on another level, if the case at bar cannot be deemed attempted but
consummated rape, what then would constitute attempted rape? Must our field of choice be thus limited only to consummated rape and acts of
lasciviousness since attempted rape would no longer be possible in light of the view of those who disagree with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a quo to the extreme penalty of death,[5]
hence this case before us on automatic review under Art. 335 of the Revised Penal Code as amended by RA 7659.[6]
As may be culled from the evidence on record, on 25 April 1996, at around 4 oclock in the afternoon, Ma. Corazon P. Pamintuan, mother of four
(4)-year old Crysthel Pamintuan, went down from the second floor of their house to prepare Milo chocolate drinks for her two (2) children. At the
ground floor she met Primo Campuhan who was then busy filling small plastic bags with water to be frozen into ice in the freezer located at the
second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the drinks, she heard one of her
daughters cry, "Ayo'ko, ayo'ko!"[7] prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan inside her childrens room kneeling
before Crysthel whose pajamas or "jogging pants" and panty were already removed, while his short pants were down to his knees.
According to Corazon, Primo was forcing his penis into Crysthels vagina. Horrified, she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and
boxed him several times. He evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to block his path. Corazon then
ran out and shouted for help thus prompting her brother, a cousin and an uncle who were living within their compound, to chase the accused.[8]
Seconds later, Primo was apprehended by those who answered Corazon's call for help. They held the accused at the back of their compound until
they were advised by their neighbors to call the barangay officials instead of detaining him for his misdeed. Physical examination of the victim
yielded negative results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on Crysthels body as her hymen was
intact and its orifice was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed the charge as a mere scheme of Crysthel's
mother who allegedly harbored ill will against him for his refusal to run an errand for her.[9] He asserted that in truth Crysthel was in a playing
mood and wanted to ride on his back when she suddenly pulled him down causing both of them to fall down on the floor. It was in this fallen
position that Corazon chanced upon them and became hysterical. Corazon slapped him and accused him of raping her child. He got mad but
restrained himself from hitting back when he realized she was a woman. Corazon called for help from her brothers to stop him as he ran down
from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him and threatened to kill him. Upon
hearing the threat, Primo immediately ran towards the house of Conrado Plata but Vicente followed him there. Primo pleaded for a chance to
explain as he reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead pipe,
Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives and neighbors of Vicente prevailed upon him to take
Primo to the barangay hall instead, and not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of statutory rape, sentenced him to the
extreme penalty of death, and ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her narration should not be given any
weight or credence since it was punctured with implausible statements and improbabilities so inconsistent with human nature and experience. He
claims that it was truly inconceivable for him to commit the rape considering that Crysthels younger sister was also in the room playing while
Corazon was just downstairs preparing Milo drinks for her daughters. Their presence alone as possible eyewitnesses and the fact that the episode
happened within the family compound where a call for assistance could easily be heard and responded to, would have been enough to deter him
from committing the crime. Besides, the door of the room was wide open for anybody to see what could be taking place inside. Primo insists that it
was almost inconceivable that Corazon could give such a vivid description of the alleged sexual contact when from where she stood she could not
have possibly seen the alleged touching of the sexual organs of the accused and his victim. He asserts that the absence of any external signs of
physical injuries or of penetration of Crysthels private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo with his short pants down to his knees
kneeling before Crysthel whose pajamas and panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthels
vagina." The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of the
Revised Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising the penalty, from reclusion perpetua to death, to the
single indivisible penalty of death under RA 7659, Sec. 11, the offended party being below seven (7) years old. We have said often enough that in
concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen
necessary; the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal
knowledge.[10] But the act of touching should be understood here as inherently part of the entry of the penis into the labias of the female organ
and not mere touching alone of the mons pubis or the pudendum.
In People v. De la Pea[11] we clarified that the decisions finding a case for rape even if the attackers penis merely touched the external portions of
the female genitalia were made in the context of the presence or existence of an erect penis capable of full penetration. Where the accused failed
to achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into the victim's vagina, the Court nonetheless held that
rape was consummated on the basis of the victim's testimony that the accused repeatedly tried, but in vain, to insert his penis into her vagina and
in all likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her vulva,[12] or that the penis of the accused touched
the middle part of her vagina.[13] Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of
organs, a slight brush or a scrape of the penis on the external layer of the victims vagina, or the mons pubis, as in this case. There must be sufficient
and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof,
for an accused to be convicted of consummated rape.[14] As the labias, which are required to be "touched" by the penis, are by their natural situs
or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the
surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia
minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly
visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the
inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does
not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora.[15] Jurisprudence dictates that the labia
majora must be entered for rape to be consummated,[16] and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of
the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any
showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female organ,"[17] but has also progressed into
being described as "the introduction of the male organ into the labia of the pudendum,"[18] or "the bombardment of the drawbridge."[19] But, to
our mind, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of passion."
A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving that Primos penis was able to penetrate
Crysthels vagina however slight. Even if we grant arguendo that Corazon witnessed Primo in the act of sexually molesting her daughter, we
seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and Crysthel. When asked what she saw upon
entering her childrens room Corazon plunged into saying that she saw Primo poking his penis on the vagina of Crysthel without explaining her
relative position to them as to enable her to see clearly and sufficiently, in automotive lingo, the contact point. It should be recalled that when
Corazon chanced upon Primo and Crysthel, the former was allegedly in a kneeling position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of the accused is pinning down the victim, while his right hand is holding his penis and
his left hand is spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that Primos kneeling position rendered an unbridled observation impossible. Not even a
vantage point from the side of the accused and the victim would have provided Corazon an unobstructed view of Primos penis supposedly reaching
Crysthels external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo would have hidden his
movements from Corazons sight, not to discount the fact that Primos right hand was allegedly holding his penis thereby blocking it from Corazons
view. It is the burden of the prosecution to establish how Corazon could have seen the sexual contact and to shove her account into the permissive
sphere of credibility. It is not enough that she claims that she saw what was done to her daughter. It is required that her claim be properly
demonstrated to inspire belief. The prosecution failed in this respect, thus we cannot conclude without any taint of serious doubt that inter-genital
contact was at all achieved. To hold otherwise would be to resolve the doubt in favor of the prosecution but to run roughshod over the
constitutional right of the accused to be presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely appearance, thus giving her the
opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with mans instinct of self-preservation to remain where he is and persist in satisfying his lust even when he
knows fully well that his dastardly acts have already been discovered or witnessed by no less than the mother of his victim. For, the normal
behavior or reaction of Primo upon learning of Corazons presence would have been to pull his pants up to avoid being caught literally with his
pants down. The interval, although relatively short, provided more than enough opportunity for Primo not only to desist from but even to conceal
his evil design.
What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the court -
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No." Thus -
Q: But did his penis penetrate your organ?
A: No, sir.[20]
This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this case was consummated. It has
foreclosed the possibility of Primos penis penetrating her vagina, however slight. Crysthel made a categorical statement denying penetration,[21]
obviously induced by a question propounded to her who could not have been aware of the finer distinctions between touching and penetration.
Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child, whose vocabulary is yet as underdeveloped as her sex and
whose language is bereft of worldly sophistication, an adult interpretation that because the penis of the accused touched her organ there was
sexual entry. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the accused touched the middle portion of her vagina
and entered the labia of her pudendum as the prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel.[22]
Corazon did not say, nay, not even hint that Primo's penis was erect or that he responded with an erection.[23] On the contrary, Corazon even
narrated that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate his victim.
Antithetically, the possibility of Primos penis having breached Crysthels vagina is belied by the child's own assertion that she resisted Primos
advances by putting her legs close together;[24] consequently, she did not feel any intense pain but just felt "not happy" about what Primo did to
her.[25] Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court had
anchored its conclusion that rape nevertheless was consummated on the victim's testimony that she felt pain, or the medico-legal finding of
discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or the hymenal tags were no longer visible.[26]
None was shown in this case. Although a child's testimony must be received with due consideration on account of her tender age, the Court
endeavors at the same time to harness only what in her story appears to be true, acutely aware of the equally guaranteed rights of the accused.
Thus, we have to conclude that even on the basis of the testimony of Crysthel alone the accused cannot be held liable for consummated rape;
worse, be sentenced to death.
Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external signs of physical injuries on complaining
witness body to conclude from a medical perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the absence of
complete penetration of the hymen does not negate the possibility of contact, she clarified that there was no medical basis to hold that there was
sexual contact between the accused and the victim.[27]
In cases of rape where there is a positive testimony and a medical certificate, both should in all respects complement each other; otherwise, to rely
on the testimonial evidence alone, in utter disregard of the manifest variance in the medical certificate, would be productive of unwarranted or
even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in reality entered the labial threshold of the female
organ to accurately conclude that rape was consummated. Failing in this, the thin line that separates attempted rape from consummated rape will
significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of rape directly
by overt acts, and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other
than his own spontaneous desistance. All the elements of attempted rape - and only of attempted rape - are present in the instant case, hence, the
accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is statutory rape of a
minor below seven (7) years. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20)
years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the maximum of the penalty to
be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8)
months and (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is
prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to
death and to pay damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight (8)
years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20) days of
reclusion temporal medium as maximum. Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ.,
concur.
Panganiban, J., in the result.
THIRD DIVISION
[G.R. Nos. 136592-93. November 27, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs. MANOLITO PANCHO, appellant.
DECISION
SANDOVAL-GUTIERREZ, J.:
This is an appeal from the Joint Decision[1] dated June 19, 1998 of the Regional Trial Court, Branch 15, Malolos, Bulacan, finding appellant Manolito
Pancho guilty beyond reasonable doubt of rape in Criminal Case No. 837-M-96 and attempted rape in Criminal Case No. 838-M-96. In Criminal Case
No. 837-M-96, the trial court sentenced him to suffer reclusion perpetua, while in Criminal Case No. 838-M-96, the penalty of 10 years and 1 day,
as minimum, to 12 years, as maximum of prision mayor, was imposed upon him.
The Informations in both Criminal Case Nos. 837-M-96 and 838-M-96 read:
For Criminal Case No. 837-M-96 (For Rape):
That in or about the month of August, 1994, in the municipality of Malolos, province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously, by means of force, threats and intimidation
and with lewd designs, have carnal knowledge of said Michelle L. dela Torre, 11 years of age, against her will and without her consent.
Contrary to law.
For Criminal Case No. 838-M-96 (For Attempted Rape):
That in or about the month of December, 1995, in the municipality of Malolos, province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously, by means of force, threats and intimidation
and with lewd designs, have carnal knowledge of said Michelle L. dela Torre, 11 years of age, against her will and without her consent.
Contrary to law.
Upon arraignment, appellant, assisted by counsel, pleaded not guilty to the crimes charged.
Thereafter, trial ensued. The evidence for the prosecution shows that complainant Michelle dela Torre was born on April 2, 1984[2] to spouses
Exequiela Lacanilao and Eduardo dela Torre. After Michelles father passed away, her mother contracted a second marriage with appellant. Michelle
and her two (2) brothers live with the couple at Look First, Malolos, Bulacan.
On August 1, 1994, at around 6:00 oclock in the morning, Michelle, who was then only ten years old, went home after spending the night at her
aunts house. While she was about to undress, appellant suddenly dragged her and forced her to lie down on the floor. Although frightened, she
struggled by kicking and boxing him. However, he forcibly removed her clothes and underwear. Then he took off his clothing. Appellant started
kissing and holding her breast and eventually had carnal knowledge of her. She felt pain when he inserted his organ into her vagina which bled. She
tried to resist but he held her both arms. He was on top of her making push and pull movements for four (4) minutes. Then he dressed up,
threatening to kill her should she complain or tell anyone about the incident.
Sometime in December, 1995 at the familys new residence at Bayugo, Meycauayan, Bulacan, appellant arrived from work. When Michelle opened
the door and saw him, she got scared. While he was approaching her, she managed to hit him. Then she attempted to jump out of the window, but
he dragged her by her feet. At that instance, her uncle (Tito Onio) suddenly arrived.[3] Immediately, appellant stopped, thus thwarting his bestial
desire.
After sometime, Michelle mustered enough courage to report the incidents to her mother, but the latter casually ignored her. So, she turned to her
grandmother Natividad Lacanilao, who brought her, sometime in February, 1996, to the National Bureau of Investigation (NBI) for examination by a
medico-legal officer.[4] Thereafter, they proceeded to the Malolos Police Station where she executed a sworn statement.[5]
Dr. Ida P. Daniel, a Medico-Legal Officer of the NBI, testified that she conducted a medico-genital examination of Michelle dela Torre. Her
findings,[6] which she confirmed on the witness stand, are as follows:
GENERAL PHYSICAL EXAMINATION:
Height: 132.0 cms
Weight: 78.0 cms
Normally developed, fairly nourished, conscious, coherent, cooperative, ambulatory subject.
Breasts, developing, conical, firm. Areolae, brown, 2.5 cms in diameter. Nipples, brown, protruding, 0.5 cm in diameter.
No sign of extragenital physical injury noted.
GENETAL EXAMINATION:
Pubic hair, fine, scanty. Labia majora and minora, coaptated. Fourchette, tense. Vestibular mucosa, pinkish. Hymen, moderately tall, moderately
thick, intact. Hymenal orifice, annular, admits a tube 2.0 cms in diameter with moderate resistance. Vaginal walls, tight. Rugosities, prominent.
CONCLUSIONS:
1. No evident sign of extragenital physical injury noted on the body of the subject at the time of examination.
2. Hymen, intact and its orifice small (2.0 cms in diameter) as to preclude complete penetration by an average sized adult Filipino male organ in full
erection without producing any genital injury.
For his part, appellant strongly denied the charges, contending that it was impossible for him to commit the crimes considering that during the
incidents, his wife and her two sons were also inside the house.[7] Moreover, the charge of rape is totally belied by the finding of the NBI Medico-
Legal Officer that Michelles hymen has remained intact with no sign of extra-genital or genital injuries.
After trial, the lower court rendered a Joint Decision dated June 19, 1998, the dispositive portion of which reads:
In view of all the foregoing and by proof beyond reasonable doubt, the Court hereby renders judgment as follows:
1. With respect to Criminal Case No. 837-M-96, the Court finds the accused guilty beyond reasonable doubt of the crime charged and hereby
sentences accused MANOLITO PANCHO to suffer the penalty of RECLUSION PERPETUA.
2. With respect to Criminal Case No. 838-M-96, the Court finds the accused guilty beyond reasonable doubt of the crime of Attempted Rape, and
hereby sentences accused MANOLITO PANCHO to suffer an imprisonment of TEN (10) YEARS and ONE (1) DAY to TWELVE (12) YEARS.
3. To indemnify the victim Michelle dela Torre the amount of P20,000.00 each case.
The period of the accuseds detention is credited in his favor.
SO ORDERED.
In this appeal, appellant ascribes to the trial court the following errors:
I
THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIMES OF RAPE AND ATTEMPTED
RAPE, DESPITE INSUFFICIENCY OF EVIDENCE.
II
THE LOWER COURT ERRED IN DISREGARDING THE DEFENSE PUT UP BY ACCUSED-APPELLANT.
As alleged in the Informations, the crimes charged were committed sometime in August, 1994 and December, 1995. Thus, the governing law is
Article 335[8] of the Revised Penal Code which, as amended by Republic Act No. 7659 (The Death Penalty Law),[9] provides:
ART. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
xxx
The death penalty shall also be imposed if the crime or rape is committed with any of the following attendant circumstances:
1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or
affinity within the third civil degree or the common-law spouse of the parent of the victim.
2. xxx.
A. G.R. No. 136592 for rape:
Rape under the above provisions is either simple or qualified. It is qualified when the age of the victim (below 18) and her relationship with the
appellant are both alleged in the Information and proved.[10] In this case, the prosecution failed to allege in the Information the qualifying
circumstance that appellant is the victims step-parent. Thus, he may only be convicted of simple rape.
Simple rape is committed under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age (statutory rape) or is demented.
In the Information, appellant is being charged of statutory rape considering that Michelle was then below 12 years old.
The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12) years old.[11] In statutory rape, force,
intimidation or physical evidence of injury is immaterial.[12] Where the girl is below 12 years of age, violence or intimidation is not required, and
the only subject of inquiry is whether carnal knowledge took place.[13]
As shown by her Certificate of Live Birth,[14] Michelle was born on April 2, 1984. Thus, on August 1, 1994 when the incident took place, she was
only 10 years and 3 months old.
Michelle identified appellant in open court as the culprit who raped her. She testified as follows:
FISCAL:
Q: Ms. Witness, you claim in your testimony that you were raped by your step father Manolito Pancho last August 1, 1994, will you please tell this
Honorable Court how Manolito Pancho raped you?
A: About 6:00 oclock in the morning I went home, sir.
Q: And where is your home located?
A: I went home at Look First, Malolos, Bulacan.
Q: And what happened when you went home at Look, Malolos, Bulacan?
A: Manolito Pancho dragged me and forced me to lie on the floor.
Q: And what happened when after Manolito Pancho lay you on the floor?
A: He took off all my clothes.
Q: And what clothes you are wearing at that time, Ms. witness?
A: I was wearing a t-shirt and short, sir.
Q: What else Manolito Pancho removed?
A: My clothes, short and panty, sir.
Q: And what was your appearance after these clothes were removed by Manolito Pancho?
A: I was naked, sir.
Q: How about Manolito Pancho, what did he do after he removed your dress?
A: He also took-off his clothes, sir.
Q: What clothes did he remove?
A: His t-shirt, short and brief, sir.
Q: After Manolito removed all these: his short, brief and t-shirt, what did he do?
A: He placed himself on top of me.
Q: And what happened after he placed himself on top of you?
A: He inserted his penis on my vagina.
Q: Were you able to see his organ when he inserted it on your vagina?
A: Yes, sir.
Q: What happened when he inserted his organ on your vagina?
A: He was kissing me and touching my body, sir.
Q: What particular parts of your body did Manolito Pancho kiss and touch, Ms. witness?
A: My both breasts, sir.
Q: And what did you feel when Manolito Pancho inserted his organ on your vagina?
A: It hurts, sir.
Q: What motion did he do if you can still remember when Manolito Pancho was on top of you?
A: He was kissing me, touching me and then I tried to struggle against him but he was holding my both hands so that I could not struggle.
Q: And what happened to your vagina after he inserted his penis?
A: It bled, sir.
Q: How long did Manolito Pancho stay on top of you?
A: Four (4) minutes, sir.
Q: And after four (4) minutes, what did Manolito Pancho do?
A: I already dressed up because he already dressed-up, sir.
Q: And what did Manolito Pancho tell you, if any?
A: He said, do not complain because if you do so, I am going to kill you.
Q: How are you related with Manolito Pancho, Ms. witness?
A: My step father, sir.
Q: At the time you claimed that you were raped by Manolito Pancho, will you please tell this Honorable Court, how young were you then?
A: Ten (10) years old, sir.
Q: Do you have evidence to show Ms. witness that you are ten (10) years old at that time?
A: My birth certificate, sir.
Q: Do you have with you your birth certificate?
A: Yes, sir. (The grandmother is producing the Live Birth Certificate of the complainant Michelle dela Torre.)
Q: Will you please tell this Honorable Court what is your date of birth, Ms. witness?
A: April 2, 1984.
Q: And you claimed that you were 10 years old when you were raped by Manolito Pancho?
A: Yes, sir.
xxx.[15]
Michelles testimony is straightforward, unflawed by significant inconsistency, and unshaken by rigid cross-examination. It deserves full faith and
credence. In rape cases, the accused may be convicted solely on the testimony of the rape victim if her testimony is credible, natural, and
convincing.[16]
When a woman says she was raped, she says in effect all that is necessary to show that rape had been committed, and if her testimony meets the
test of credibility, the accused may be convicted on the basis thereof.[17] It bears stressing that Michelle, a girl of tender years, innocent and
guileless, cannot be expected to brazenly impute a crime so serious as rape to her step-father if it were not true.
Appellant vigorously denied the charge, contending that per the Medical Report of Dr. Ida Daniel, Michelles hymen has remained intact.[18]
We are not persuaded.
Appellant heavily relies on the virgo intacta theory.[19] He disregards Dr. Daniels testimony that there are two types of hymen: (1) one that
remains intact even though there is penetration; (2) the other is lacerated after penetration.[20] We have ruled that in rape cases the absence of
fresh lacerations does not preclude the finding of rape,[21] especially when the victim is of tender age.[22] Moreover, laceration of the hymen is
not an element of the crime of rape.[23] Hymenal rupture or any indication of vaginal laceration or genital injury is not necessary for the
consummation of rape.[24] Its absence does not negate a finding of forced sexual coitus.[25] For the rule is well settled that rape is consummated
by the slightest penile penetration of the labia majora or pudendum of the female organ.[26] Indeed, the evidentiary weight of the medical
examination of the victim, as well as the medical certificate, is merely corroborative in character and is not an indispensable element for conviction
for rape.[27]
Appellants denial is an inherently weak defense. It has always been viewed upon with disfavor by the courts due to the ease with which it can be
concocted.[28] Inherently weak, denial as a defense crumbles in the light of positive identification of the accused, as in this case. The defense of
denial assumes significance only when the prosecutions evidence is such that it does not prove guilt beyond reasonable doubt.[29] Verily, mere
denial, unsubstantiated by clear and convincing evidence, is negative self-serving evidence which cannot be given greater evidentiary weight than
the testimony of the complaining witness who testified on affirmative matters.[30]
B. G.R. No. 136593 for attempted rape:
Appellant also contends that his conviction of attempted rape in Criminal Case No. 838-M-96 is not supported by evidence.
Michelle testified that when appellant was coming near me, I hit him and I saw that our door was opened. I tried to jump and that was the time he
dragged and he held my feet.[31] Appellant and Michelle were in this snap situation when his Tito Onio arrived.[32] Her testimony regarding this
incident is quoted as follows:
FISCAL:
xxx
Q: And what happened in that place at Bayugo, Meycauayan, Bulacan?
A: When the door opened I thought it was my mother and when I saw him I was scared, sir.
Q: And what happened when you saw Manolito Pancho?
A: I closed the door, sir.
Q: Thereafter, what happened?
A: When he was coming near me, I hit him and I saw that our door was opened. I tried to jump and that was the time he dragged and he held my
feet.
Q: And what happened after Manolito Pancho held your feet?
A: When he was holding my feet I was not able to jump from the window and thats the time the door opened and then I saw my uncle that is why
the rape was not committed.
xxx.[33]
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of rape directly
by overt acts, but does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other
than his own spontaneous desistance.[34]
In this second case, the prosecution failed to prove that appellant started to rape the victim and had commenced the performance of acts of carnal
knowledge. He did not force her to lie down or remove her garment. In short, there was no showing that he did commence at all the performance
of any act indicative of an intent or attempt to rape the victim. What he did was to drag her and hold her feet. At this juncture, we can not safely
conclude that he was attempting to rape her.
In People vs. Campuhan,[35] we held that the thin line that separates attempted rape from consummated rape is the entrance of the male organ
into the labial threshold of the female genitalia. In that case, the accused was caught by the mother of the victim kneeling on top of her. The victim
testified that the accuseds organ merely touched but did not penetrate her vagina. We held that he could not be convicted of statutory rape but
only attempted rape.
In the instant case, appellant was merely holding complainants feet when her Tito Onio arrived at the alleged locus criminis. Thus, it would be
stretching to the extreme our credulity if we were to conclude that mere holding of the feet is attempted rape.
Anent the award of damages in G.R. No. 136592, we observed that the trial court only awarded the victim civil indemnity in the amount of
P20,000.00. This must be corrected. We have consistently ruled that upon a finding of the fact of rape, the award of civil indemnity is mandatory. If
the death penalty is imposed, the indemnity ex delicto should be P75,000.00. Where, as here, the death penalty is not decreed, the victim should
be entitled to P50,000.00 only.[36]
In line with current jurisprudence, we also award the victim moral damages in the amount of P50,000.00 without need of pleading or proof of the
basis thereof.[37] The anguish and pain she has endured are evident.
WHEREFORE, the Decision dated June 19, 1998 of the Regional Trial Court, Branch 15, Malolos, Bulacan, in Criminal Case No. 837-M-96, convicting
appellant Manolito Pancho of rape and sentencing him to suffer the penalty of reclusion perpetua is AFFIRMED, with the modification that he is
ordered to pay the victim, Michelle dela Torre, P50,000.00 as civil indemnity, and P50,000.00 as moral damages.
In Criminal Case No. 838-M-96, the trial courts judgment convicting the appellant of attempted rape is REVERSED AND SET ASIDE and a new one is
entered ACQUITTING him of the crime charged.
Costs de oficio.
SO ORDERED.
Vitug, (Chairman), Corona, and Carpio-Morales, JJ., concur.
EN BANC

G. R. No. 160188
ARISTOTEL VALENZUELA y NATIVIDAD,Petitioner,
- versus -
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS,Respondents.
x----------------------------------------------------------------------------x

DECISION

Tinga, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner effectively concedes having performed the felonious
acts imputed against him, but instead insists that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on a common theory expounded in two well-known decisions[1] rendered
decades ago by the Court of Appeals, upholding the existence of frustrated theft of which the accused in both cases were found guilty. However,
the rationale behind the rulings has never been affirmed by this Court.

As far as can be told,[2] the last time this Court extensively considered whether an accused was guilty of frustrated or consummated theft was in
1918, in People v. Adiao.[3] A more cursory

treatment of the question was followed in 1929, in People v. Sobrevilla,[4] and in 1984, in Empelis v. IAC.[5] This petition now gives occasion for us
to finally and fully measure if or how frustrated theft is susceptible to commission under the Revised Penal Code.

I.

The basic facts are no longer disputed before us. The case stems from an Information[6] charging petitioner Aristotel Valenzuela (petitioner) and
Jovy Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m., petitioner and Calderon were sighted outside the Super
Sale Club, a supermarket within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago), a security guard who was then manning his
post at the open parking area of the supermarket. Lago saw petitioner, who was wearing an identification card with the mark Receiving Dispatching
Unit (RDU), hauling a push cart with cases of detergent of the well-known Tide brand. Petitioner unloaded these cases in an open parking space,
where Calderon was waiting. Petitioner then returned inside the supermarket, and after five (5) minutes, emerged with more cartons of Tide
Ultramatic and again unloaded these boxes to the same area in the open parking space.[7]

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it towards the parking space where Calderon was
waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who proceeded
to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a receipt of the merchandise, petitioner and Calderon
reacted by fleeing on foot, but Lago fired a warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered.[8] The filched items seized from the duo were four (4) cases of Tide Ultramatic,
one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods with an aggregate value of P12,090.00.[9]

Petitioner and Calderon were first brought to the SM security office before they were transferred on the same day to the Baler Station II of the
Philippine National Police, Quezon City, for investigation. It appears from the police investigation records that apart from petitioner and Calderon,
four (4) other persons were apprehended by the security guards at the scene and delivered to police custody at the Baler PNP Station in connection
with the incident. However, after the matter was referred to the Office of the Quezon City Prosecutor, only petitioner and Calderon were charged
with theft by the Assistant City Prosecutor, in Informations prepared on 20 May 1994, the day after the incident.[10]

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having been innocent bystanders within the vicinity of
the Super Sale Club on the afternoon of 19 May 1994 when they were haled by Lago and his fellow security guards after a commotion and brought
to the Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super Sale Club to withdraw from his ATM account,
accompanied by his neighbor, Leoncio Rosulada.[11] As the queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the
supermarket. It was while they were eating that they heard the gunshot fired by Lago, leading them to head out of the building to check what was
transpiring. As they were outside, they were suddenly grabbed by a security guard, thus commencing their detention.[12] Meanwhile, petitioner
testified during trial that he and his cousin, a Gregorio Valenzuela,[13] had been at the parking lot, walking beside the nearby BLISS complex and
headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The gunshot caused him and the other people at the
scene to start running, at which point he was apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the
security office until around 9:00 p.m., at which time he and the others were brought to the Baler Police Station. At the station, petitioner denied
having stolen the cartons of detergent, but he was detained overnight, and eventually brought to the prosecutors office where he was charged
with theft.[14] During petitioners cross-examination, he admitted that he had been employed as a bundler of GMS Marketing, assigned at the
supermarket though not at SM.[15]

In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90, convicted both petitioner and
Calderon of the crime of consummated theft. They were sentenced to an indeterminate prison term of two (2) years of prision correccional as
minimum to seven (7) years of prision mayor as maximum.[17] The RTC found credible the testimonies of the prosecution witnesses and
established the convictions on the positive identification of the accused as perpetrators of the crime.

Both accused filed their respective Notices of Appeal,[18] but only petitioner filed a brief[19] with the Court of Appeals, causing the appellate court
to deem Calderons appeal as abandoned and consequently dismissed. Before the Court of Appeals, petitioner argued that he should only be
convicted of frustrated theft since at the time he was apprehended, he was never placed in a position to freely dispose of the articles stolen.[20]
However, in its Decision dated 19 June 2003,[21] the Court of Appeals rejected this contention and affirmed petitioners conviction.[22] Hence the
present Petition for Review,[23] which expressly seeks that petitioners conviction be modified to only of Frustrated Theft.[24]
Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual participation in the theft of
several cases of detergent with a total value of P12,090.00 of which he was charged.[25] As such, there is no cause for the Court to consider a
factual scenario other than that presented by the prosecution, as affirmed by the RTC and the Court of Appeals. The only question to consider is
whether under the given facts, the theft should be deemed as consummated or merely frustrated.

II.

In arguing that he should only be convicted of frustrated theft, petitioner cites[26] two decisions rendered many years ago by the Court of Appeals:
People v. Dio[27] and People v. Flores.[28] Both decisions elicit the interest of this Court, as they modified trial court convictions from
consummated to frustrated theft and involve a factual milieu that bears similarity to the present case. Petitioner invoked the same rulings in his
appeal to the Court of Appeals, yet the appellate court did not expressly consider the import of the rulings when it affirmed the conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to the Dio and Flores rulings since they have not yet been expressly adopted
as precedents by this Court. For whatever reasons,

the occasion to define or debunk the crime of frustrated theft has not come to pass before us. Yet despite the silence on our part, Dio and Flores
have attained a level of renown reached by very few other appellate court rulings. They are comprehensively discussed in the most popular of our
criminal law annotations,[29] and studied in criminal law classes as textbook examples of frustrated crimes or even as definitive of frustrated theft.

More critically, the factual milieu in those cases is hardly akin to the fanciful scenarios that populate criminal law exams more than they actually
occur in real life. Indeed, if we finally say that Dio and Flores are doctrinal, such conclusion could profoundly influence a multitude of routine theft
prosecutions, including commonplace shoplifting. Any scenario that involves the thief having to exit with the stolen property through a supervised
egress, such as a supermarket checkout counter or a parking area pay booth, may easily call for the application of Dio and Flores. The fact that
lower courts have not hesitated to lay down convictions for frustrated theft further validates that Dio and Flores and the theories offered therein
on frustrated theft have borne some weight in our jurisprudential system. The time is thus ripe for us to examine whether those theories are
correct and should continue to influence prosecutors and judges in the future.

III.

To delve into any extended analysis of Dio and Flores, as well as the specific issues relative to frustrated theft, it is necessary to first refer to the
basic rules on the three stages of crimes under our Revised Penal Code.[30]

Article 6 defines those three stages, namely the consummated, frustrated and attempted felonies. A felony is consummated when all the elements
necessary for its execution and accomplishment are present. It is frustrated when the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.
Finally, it is attempted when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.

Each felony under the Revised Penal Code has a subjective phase, or that portion of the acts constituting the crime included between the act which
begins the commission of the crime and the last act performed by the offender which, with prior acts, should result in the consummated crime.[31]
After that point has been breached, the subjective phase ends and the objective phase begins.[32] It has been held that if the offender never
passes the subjective phase of the offense, the crime is merely attempted.[33] On the other hand, the subjective phase is completely passed in
case of frustrated crimes, for in such instances, [s]ubjectively the crime is complete.[34]

Truly, an easy distinction lies between consummated and frustrated felonies on one hand, and attempted felonies on the other. So long as the
offender fails to complete all the acts of execution despite commencing the commission of a felony, the crime is undoubtedly in the attempted
stage. Since the specific acts of execution that define each crime under the Revised Penal Code are generally enumerated in the code itself, the task
of ascertaining whether a crime is attempted only would need to compare the acts actually performed by the accused as against the acts that
constitute the felony under the Revised Penal Code.

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial concession that all of the acts of execution
have been performed by the offender. The critical distinction instead is whether the felony itself was actually produced by the acts of execution.
The determination of whether the felony was produced after all the acts of execution had been performed hinges on the particular statutory
definition of the felony. It is the statutory definition that generally furnishes the elements of each crime under the Revised Penal Code, while the
elements in turn unravel the particular requisite acts of execution and accompanying criminal intent.

The long-standing Latin maxim actus non facit reum, nisi mens sit rea supplies an important characteristic of a crime, that ordinarily, evil intent
must unite with an unlawful act for there to be a crime, and accordingly, there can be no crime when the criminal mind is wanting.[35] Accepted in
this jurisdiction as material in crimes mala in se,[36] mens rea has been defined before as a guilty mind, a guilty or wrongful purpose or criminal
intent,[37] and essential for criminal liability.[38] It follows that the statutory definition of our mala in se crimes must be able to supply what the
mens rea of the crime is, and indeed the U.S. Supreme Court has comfortably held that a criminal law that contains no mens rea requirement
infringes on constitutionally protected rights.[39] The criminal statute must also provide for the overt acts that constitute the crime. For a crime to
exist in our legal law, it is not enough that mens rea be shown; there must also be an actus reus.[40]

It is from the actus reus and the mens rea, as they find expression in the criminal statute, that the felony is produced. As a postulate in the
craftsmanship of constitutionally sound laws, it is extremely preferable that the language of the law expressly provide when the felony is produced.
Without such provision, disputes would inevitably ensue on the elemental question whether or not a crime was committed, thereby presaging the
undesirable and legally dubious set-up under which the judiciary is assigned the legislative role of defining crimes. Fortunately, our Revised Penal
Code does not suffer from such infirmity. From the statutory definition of any felony, a decisive passage or term is embedded which attests when
the felony is produced by the acts of execution. For example, the statutory definition of murder or homicide expressly uses the phrase shall kill
another, thus making it clear that the felony is produced by the death of the victim, and conversely, it is not produced if the victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised Penal Code, its elements are spelled out as follows:

Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons
nor force upon things, shall take personal property of another without the latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage
caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its
owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products.

Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which theft may be committed.[41] In
the present discussion, we need to concern ourselves only with the general definition since it was under it that the prosecution of the accused was
undertaken and sustained. On the face of the definition, there is only one operative act of execution by the actor involved in theft ─ the taking of
personal property of another. It is also clear from the provision that in order that such taking may be qualified as theft, there must further be
present the descriptive circumstances that the taking was with intent to gain; without force upon things or violence against or intimidation of
persons; and it was without the consent of the owner of the property.

Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal Code, namely: (1) that there be
taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done
without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force
upon things.[42]

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early Roman law as defined by Gaius, was so broad
enough as to encompass any kind of physical handling of property belonging to another against the will of the owner,[43] a definition similar to
that by Paulus that a thief handles (touches, moves) the property of another.[44] However, with the Institutes of Justinian, the idea had taken hold
that more than mere physical handling, there must further be an intent of acquiring gain from the object, thus: [f]urtum est contrectatio rei
fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve.[45] This requirement of animo lucrandi, or intent to gain, was
maintained in both the Spanish and Filipino penal laws, even as it has since been abandoned in Great Britain.[46]

In Spanish law, animo lucrandi was compounded with apoderamiento, or unlawful taking, to characterize theft. Justice Regalado notes that the
concept of apoderamiento once had a controversial interpretation and application. Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding that it had to be coupled with the intent to appropriate the object in order to constitute
apoderamiento; and to appropriate means to deprive the lawful owner of the thing.[47] However, a conflicting line of cases decided by the Court of
Appeals ruled, alternatively, that there must be permanency in the taking[48] or an intent to permanently deprive the owner of the stolen
property;[49] or that there was no need for permanency in the taking or in its intent, as the mere temporary possession by the offender or
disturbance of the proprietary rights of the owner already constituted apoderamiento.[50] Ultimately, as Justice Regalado notes, the Court
adopted the latter thought that there was no need of an intent to permanently deprive the owner of his property to constitute an unlawful
taking.[51]

So long as the descriptive circumstances that qualify the taking are present, including animo lucrandi and apoderamiento, the completion of the
operative act that is the taking of personal property of another establishes, at least, that the transgression went beyond the attempted stage. As
applied to the present case, the moment petitioner obtained physical possession of the cases of detergent and loaded them in the pushcart, such
seizure motivated by intent to gain, completed without need to inflict violence or intimidation against persons nor force upon things, and
accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction for only attempted theft
would have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are obliged to apply Article 6 of the Revised Penal Code to ascertain
the answer. Following that provision, the theft would have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to
produce theft as a consequence, do not produce [such theft] by reason of causes independent of the will of the perpetrator. There are clearly two
determinative factors to consider: that the felony is not produced, and that such failure is due to causes independent of the will of the perpetrator.
The second factor ultimately depends on the evidence at hand in each particular case. The first, however, relies primarily on a doctrinal definition
attaching to the individual felonies in the Revised Penal Code[52] as to when a particular felony is not produced, despite the commission of all the
acts of execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is necessary to inquire as to how exactly is the felony of theft produced.
Parsing through the statutory definition of theft under Article 308, there is one apparent answer provided in the language of the law that theft is
already produced upon the tak[ing of] personal property of another without the latters consent.

U.S. v. Adiao[53] apparently supports that notion. Therein, a customs inspector was charged with theft after he abstracted a leather belt from the
baggage of a foreign national and secreted the item in his desk at the Custom House. At no time was the accused able to get the merchandise out
of the Custom House, and it appears that he was under observation during the entire transaction.[54] Based apparently on those two
circumstances, the trial court had found him guilty, instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive,
and holding instead that the accused was guilty of consummated theft, finding that all the elements of the completed crime of theft are
present.[55] In support of its conclusion that the theft was consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the
discussion of which we replicate below:

The defendant was charged with the theft of some fruit from the land of another. As he was in the act of taking the fruit[,] he was seen by a
policeman, yet it did not appear that he was at that moment caught by the policeman but sometime later. The court said: "[x x x] The trial court did
not err [x x x ] in considering the crime as that of consummated theft instead of frustrated theft inasmuch as nothing appears in the record showing
that the policemen who saw the accused take the fruit from the adjoining land arrested him in the act and thus prevented him from taking full
possession of the thing stolen and even its utilization by him for an interval of time." (Decision of the Supreme Court of Spain, October 14, 1898.)

Defendant picked the pocket of the offended party while the latter was hearing mass in a church. The latter on account of the solemnity of the act,
although noticing the theft, did not do anything to prevent it. Subsequently, however, while the defendant was still inside the church, the offended
party got back the money from the defendant. The court said that the defendant had performed all the acts of execution and considered the theft
as consummated. (Decision of the Supreme Court of Spain, December 1, 1897.)

The defendant penetrated into a room of a certain house and by means of a key opened up a case, and from the case took a small box, which was
also opened with a key, from which in turn he took a purse containing 461 reales and 20 centimos, and then he placed the money over the cover of
the case; just at this moment he was caught by two guards who were stationed in another room near-by. The court considered this as
consummated robbery, and said: "[x x x] The accused [x x x] having materially taken possession of the money from the moment he took it from the
place where it had been, and having taken it with his hands with intent to appropriate the same, he executed all the acts necessary to constitute
the crime which was thereby produced; only the act of making use of the thing having been frustrated, which, however, does not go to make the
elements of the consummated crime." (Decision of the Supreme Court of Spain, June 13, 1882.)[56]

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited therein, that the criminal actors in all these cases had been able to
obtain full possession of the personal property prior to their apprehension. The interval between the commission of the acts of theft and the
apprehension of the thieves did vary, from sometime later in the 1898 decision; to the very moment the thief had just extracted the money in a
purse which had been stored as it was in the 1882 decision; and before the thief had been able to spirit the item stolen from the building where the
theft took place, as had happened in Adiao and the 1897 decision. Still, such intervals proved of no consequence in those cases, as it was ruled that
the thefts in each of those cases was consummated by the actual possession of the property belonging to another.

In 1929, the Court was again confronted by a claim that an accused was guilty only of frustrated rather than consummated theft. The case is People
v. Sobrevilla,[57] where the accused, while in the midst of a crowd in a public market, was already able to abstract a pocketbook from the trousers
of the victim when the latter, perceiving the theft, caught hold of the [accused]s shirt-front, at the same time shouting for a policeman; after a
struggle, he recovered his pocket-book and let go of the defendant, who was afterwards caught by a policeman.[58] In rejecting the contention
that only frustrated theft was established, the Court simply said, without further comment or elaboration:

We believe that such a contention is groundless. The [accused] succeeded in taking the pocket-book, and that determines the crime of theft. If the
pocket-book was afterwards recovered, such recovery does not affect the [accuseds] criminal liability, which arose from the [accused] having
succeeded in taking the pocket-book.[59]

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the latter, in that the fact that the offender was able to
succeed in obtaining physical possession of the stolen item, no matter how momentary, was able to consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of petitioner in this case. Yet to simply affirm
without further comment would be disingenuous, as there is another school of thought on when theft is consummated, as reflected in the Dio and
Flores decisions.

Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The accused therein, a driver employed by
the United States Army, had driven his truck into the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army
personnel. After he had finished unloading, accused drove away his truck from the Port, but as he was approaching a checkpoint of the Military
Police, he was stopped by an M.P. who inspected the truck and found therein three boxes of army rifles. The accused later contended that he had
been stopped by four men who had loaded the boxes with the agreement that they were to meet him and retrieve the rifles after he had passed
the checkpoint. The trial court convicted accused of consummated theft, but the Court of Appeals modified the conviction, holding instead that
only frustrated theft had been committed.

In doing so, the appellate court pointed out that the evident intent of the accused was to let the boxes of rifles pass through the checkpoint,
perhaps in the belief that as the truck had already unloaded its cargo inside the depot, it would be allowed to pass through the check point without
further investigation or checking.[60] This point was deemed material and indicative that the theft had not been fully produced, for the Court of
Appeals pronounced that the fact determinative of consummation is the ability of the thief to dispose freely of the articles stolen, even if it were
more or less momentary.[61] Support for this proposition was drawn from a decision of the Supreme Court of Spain dated 24 January 1888 (1888
decision), which was quoted as follows:

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la consumacion del delito de hurto es preciso que so haga en
circunstancias tales que permitan al sustractor la libre disposicion de aquella, siquiera sea mas o menos momentaneamente, pues de otra suerte,
dado el concepto del delito de hurto, no puede decirse en realidad que se haya producido en toda su extension, sin materializar demasiado el acto
de tomar la cosa ajena.[62]

Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the booty subject to the control and disposal of the culprits, the articles stolen
must first be passed through the M.P. check point, but since the offense was opportunely discovered and the articles seized after all the acts of
execution had been performed, but before the loot came under the final control and disposal of the looters, the offense can not be said to have
been fully consummated, as it was frustrated by the timely intervention of the guard. The offense committed, therefore, is that of frustrated
theft.[63]

Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of apprehension is determinative as to
whether the theft is consummated or frustrated. This theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which
according to the division of the court that decided it, bore no substantial variance between the circumstances [herein] and in [Dio].[64] Such
conclusion is borne out by the facts in Flores. The accused therein, a checker employed by the Luzon Stevedoring Company, issued a delivery
receipt for one empty sea van to the truck driver who had loaded the purportedly empty sea van onto his truck at the terminal of the stevedoring
company. The truck driver proceeded to show the delivery receipt to the guard on duty at the gate of the terminal. However, the guards insisted on
inspecting the van, and discovered that the empty sea van had actually contained other merchandise as well.[65] The accused was prosecuted for
theft qualified by abuse of confidence, and found himself convicted of the consummated crime. Before the Court of Appeals, accused argued in the
alternative that he was guilty only of attempted theft, but the appellate court pointed out that there was no intervening act of spontaneous
desistance on the part of the accused that literally frustrated the theft. However, the Court of Appeals, explicitly relying on Dio, did find that the
accused was guilty only of frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found no substantial variance between Dio and Flores then before it. The prosecution in Flores had
sought to distinguish that case from Dio, citing a traditional ruling which unfortunately was not identified in the decision itself. However, the Court
of Appeals pointed out that the said traditional ruling was qualified by the words is placed in a situation where [the actor] could dispose of its
contents at once.[66] Pouncing on this qualification, the appellate court noted that [o]bviously, while the truck and the van were still within the
compound, the petitioner could not have disposed of the goods at once. At the same time, the Court of Appeals conceded that [t]his is entirely
different from the case where a much less bulk and more common thing as money was the object of the crime, where freedom to dispose of or
make use of it is palpably less restricted,[67] though no further qualification was offered what the effect would have been had that alternative
circumstance been present instead.
Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to whether the crime of theft was produced is the ability of
the actor to freely dispose of the articles stolen, even if it were only momentary. Such conclusion was drawn from an 1888 decision of the Supreme
Court of Spain which had pronounced that in determining whether theft had been consummated, es preciso que so haga en circunstancias tales
que permitan al sustractor de aquella, siquiera sea mas o menos momentaneamente. The qualifier siquiera sea mas o menos momentaneamente
proves another important consideration, as it implies that if the actor was in a capacity to freely dispose of the stolen items before apprehension,
then the theft could be deemed consummated. Such circumstance was not present in either Dio or Flores, as the stolen items in both cases were
retrieved from the actor before they could be physically extracted from the guarded compounds from which the items were filched. However, as
implied in Flores, the character of the item stolen could lead to a different conclusion as to whether there could have been free disposition, as in
the case where the chattel involved was of much less bulk and more common x x x, [such] as money x x x.[68]

In his commentaries, Chief Justice Aquino makes the following pointed observation on the import of the Dio ruling:

There is a ruling of the Court of Appeals that theft is consummated when the thief is able to freely dispose of the stolen articles even if it were
more or less momentary. Or as stated in another case[[69]], theft is consummated upon the voluntary and malicious taking of property belonging
to another which is realized by the material occupation of the thing whereby the thief places it under his control and in such a situation that he
could dispose of it at once. This ruling seems to have been based on Viadas opinion that in order the theft may be consummated, es preciso que se
haga en circumstancias x x x [[70]][71]

In the same commentaries, Chief Justice Aquino, concluding from Adiao and other cases, also states that [i]n theft or robbery the crime is
consummated after the accused had material possession of the thing with intent to appropriate the same, although his act of making use of the
thing was frustrated.[72]

There are at least two other Court of Appeals rulings that are at seeming variance with the Dio and Flores rulings. People v. Batoon[73] involved an
accused who filled a container with gasoline from a petrol pump within view of a police detective, who followed the accused onto a passenger
truck where the arrest was made. While the trial court found the accused guilty of frustrated qualified theft, the Court of Appeals held that the
accused was guilty of consummated qualified theft, finding that [t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate
that actual taking with intent to gain is enough to consummate the crime of theft.[74]

In People v. Espiritu,[75] the accused had removed nine pieces of hospital linen from a supply depot and loaded them onto a truck. However, as the
truck passed through the checkpoint, the stolen items were discovered by the Military Police running the checkpoint. Even though those facts
clearly admit to similarity with those in Dio, the Court of Appeals held that the accused were guilty of consummated theft, as the accused were able
to take or get hold of the hospital linen and that the only thing that was frustrated, which does not constitute any element of theft, is the use or
benefit that the thieves expected from the commission of the offense.[76]

In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that [w]hen the meaning of an element of a felony is controversial,
there is bound to arise different rulings as to the stage of execution of that felony.[77] Indeed, we can discern from this survey of jurisprudence
that the state of the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed foundational basis of the concept of
frustrated theft itself, the question can even be asked whether there is really such a crime in the first place.

IV.

The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As we undertake this inquiry, we
have to reckon with the import of this Courts 1984 decision in Empelis v. IAC.[78]

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the premises of his plantation, in the act of gathering and
tying some coconuts. The accused were surprised by the owner within the plantation as they were carrying with them the coconuts they had
gathered. The accused fled the scene, dropping the coconuts they had seized, and were subsequently arrested after the owner reported the
incident to the police. After trial, the accused were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only
of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised Penal Code,[79] but further held that the
accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the theft was consummated or frustrated was raised by any of the parties.
What does appear, though, is that the disposition of that issue was contained in only two sentences, which we reproduce in full:

However, the crime committed is only frustrated qualified theft because petitioners were not able to perform all the acts of execution which
should have produced the felony as a consequence. They were not able to carry the coconuts away from the plantation due to the timely arrival of
the owner.[80]

No legal reference or citation was offered for this averment, whether Dio, Flores or the Spanish authorities who may have bolstered the conclusion.
There are indeed evident problems with this formulation in Empelis.

Empelis held that the crime was only frustrated because the actors were not able to perform all the acts of execution which should have produced
the felon as a consequence.[81] However, per Article 6 of the Revised Penal Code, the crime is frustrated when the offender performs all the acts
of execution, though not producing the felony as a result. If the offender was not able to perform all the acts of execution, the crime is attempted,
provided that the non-performance was by reason of some cause or accident other than spontaneous desistance. Empelis concludes that the crime
was frustrated because not all of the acts of execution were performed due to the timely arrival of the owner. However, following Article 6 of the
Revised Penal Code, these facts should elicit the conclusion that the crime was only attempted, especially given that the acts were not performed
because of the timely arrival of the owner, and not because of spontaneous desistance by the offenders.

For these reasons, we cannot attribute weight to Empelis as we consider the present petition. Even if the two sentences we had cited actually
aligned with the definitions provided in Article 6 of the Revised Penal Code, such passage bears no reflection that it is the product of the considered
evaluation of the relevant legal or jurisprudential thought. Instead, the passage is offered as if it were sourced from an indubitable legal premise so
settled it required no further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft. Indeed, we cannot see how Empelis can
contribute to our present debate, except for the bare fact that it proves that the Court had once deliberately found an accused guilty of frustrated
theft. Even if Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely compromised by the erroneous legal
premises that inform it, and also by the fact that it has not been entrenched by subsequent reliance.
Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in this jurisdiction. Considering the flawed
reasoning behind its conclusion of frustrated theft, it cannot present any efficacious argument to persuade us in this case. Insofar as Empelis may
imply that convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to reassessment.

V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal de Espaa was then in place. The definition of the crime of theft, as
provided then, read as follows:

They are accused of theft:

1. Those who, with the aim of making a profit, and without violence or intimidation in people or force in things, take the personal property of
others without the will of their owner.
2. Those who find themselves a lost thing and knowing who is their owner will appropriate it for profit.
3. The givers who subtract or use the fruits or object of the damage caused, except in the cases provided for in articles 606, nm. 1.0; 607, nms, 1.0,
2.0 and 3.0; 608, nm. 1.0; 611; 613; Second paragraph of 617 and 618

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were handed down. However, the said code
would be revised again in 1932, and several times thereafter. In fact, under the Codigo Penal Espaol de 1995, the crime of theft is now simply
defined as who, on a profit basis, will take the furniture of other people without the will of their owner to be punished [82]

Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, la libre disposicion of the property is not an element or a statutory
characteristic of the crime. It does appear that the principle originated and perhaps was fostered in the realm of Spanish jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his 1926 commentaries on the 1870 Codigo Penal de Espaa. Therein, he raised at
least three questions for the reader whether the crime of frustrated or consummated theft had occurred. The passage cited in Dio was actually
utilized by Viada to answer the question whether frustrated or consummated theft was committed [e]l que en el momento mismo de apoderarse
de la cosa ajena, vindose sorprendido, la arroja al suelo.[83] Even as the answer was as stated in Dio, and was indeed derived from the 1888
decision of the Supreme Court of Spain, that decisions factual predicate occasioning the statement was apparently very different from Dio, for it
appears that the 1888 decision involved an accused who was surprised by the employees of a haberdashery as he was abstracting a layer of
clothing off a mannequin, and who then proceeded to throw away the garment as he fled.[84]

Nonetheless, Viada does not contest the notion of frustrated theft, and willingly recites decisions of the Supreme Court of Spain that have held to
that effect.[85] A few decades later, the esteemed Eugenio Cuello Caln pointed out the inconsistent application by the Spanish Supreme Court with
respect to frustrated theft.

There is frustration when the inmates were surprised by the guards when they carried the flour sacks of the car that led them to another one that
they had prepared, February 22, 1913; when the result had no effect by the intervention of the police located in the place where the removal took
place that prevented the inmates from disposing of the sustrado, October 30, 1950. There is "at least" frustration, if there is seizure, but the guilt
does not get to dispose of the thing, April 12, 1930; there is "very close" frustration when the guilty party is arrested by the injured party
immediately after committing the theft, February 28, 1931. Some judgments have considered the existence of frustration when, persecuted the
guilty or surprised at the time of carrying the stolen effects, the abandons, May 29, 1889, February 22, 1913, March 11, 1921; this doctrine is not
admissible, these, according to the above, are consummated thefts
.[86]

Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible:

The doctrine generally supported today considers that the theft is consummated when the thing is in fact at the disposition of the agent. With this
criterion the doctrine seated lastly by the Spanish jurisprudence agrees that generally considers the theft consummate when the culprit catches or
apprehends the thing and it remains for more or less lasting time under its power. The fact that he can take advantage or not of the stolen is
indifferent. The crime does not lose its consummate character even if the stolen thing is returned by the guilty party or recovered. Frustration is
not conceived, because it is very difficult for those who do what is necessary for the consummation of the theft do not consume it effectively, the
rare cases that our jurisprudence, very hesitant, declares frustrated thefts are true consummated crimes. [87] (Emphasis supplied)

Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was content with replicating the Spanish Supreme Court decisions on the
matter, Cuello Caln actually set forth his own thought that questioned whether theft could truly be frustrated, since pues es muy dificil que el que
hace cuanto es necesario para la consumacin del hurto no lo consume efectivamente. Otherwise put, it would be difficult to foresee how the
execution of all the acts necessary for the completion of the crime would not produce the effect of theft.

This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges us to accept frustrated theft, as
proposed in Dio and Flores. A final ruling by the Court that there is no crime of frustrated theft in this jurisdiction will not lead to scholastic pariah,
for such a submission is hardly heretical in light of Cuello Calns position.

Accordingly, it would not be intellectually disingenuous for the Court to look at the question from a fresh perspective, as we are not bound by the
opinions of the respected Spanish commentators, conflicting as they are, to accept that theft is capable of commission in its frustrated stage.
Further, if we ask the question whether there is a mandate of statute or precedent that must compel us to adopt the Dio and Flores doctrines, the
answer has to be in the negative. If we did so, it would arise not out of obeisance to an inexorably higher command, but from the exercise of the
function of statutory interpretation that comes as part and parcel of judicial review, and a function that allows breathing room for a variety of
theorems in competition until one is ultimately adopted by this Court.
V.

The foremost predicate that guides us as we explore the matter is that it lies in the province of the legislature, through statute, to define what
constitutes a particular crime in this jurisdiction. It is the legislature, as representatives of the sovereign people, which determines which acts or
combination of acts are criminal in nature. Judicial interpretation of penal laws should be aligned with what was the evident legislative intent, as
expressed primarily in the language of the law as it defines the crime. It is Congress, not the courts, which is to define a crime, and ordain its
punishment.[88] The courts cannot arrogate the power to introduce a new element of a crime which was unintended by the legislature, or redefine
a crime in a manner that does not hew to the statutory language. Due respect for the prerogative of Congress in defining crimes/felonies constrains
the Court to refrain from a broad interpretation of penal laws where a narrow interpretation is appropriate. The Court must take heed of language,
legislative history and purpose, in order to strictly determine the wrath and breath of the conduct the law forbids.[89]

With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of the offender to freely dispose of the property stolen is not a
constitutive element of the crime of theft. It finds no support or extension in Article 308, whether as a descriptive or operative element of theft or
as the mens rea or actus reus of the felony. To restate what this Court has repeatedly held: the elements of the crime of theft as provided for in
Article 308 of the Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the
taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without
the use of violence against or intimidation of persons or force upon things.[90]

Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal property of another without the
latters consent. While the Dio/Flores dictum is considerate to the mindset of the offender, the statutory definition of theft considers only the
perspective of intent to gain on the part of the offender, compounded by the deprivation of property on the part of the victim.

For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is again, when is the crime of theft
produced? There would be all but certain unanimity in the position that theft is produced when there is deprivation of personal property due to its
taking by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the offender, once having
committed all the acts of execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone
has already ensued from such acts of execution. This conclusion is reflected in Chief Justice Aquinos commentaries, as earlier cited, that [i]n theft
or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same, although his act
of making use of the thing was frustrated.[91]

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of taking itself, in that there
could be no true taking until the actor obtains such degree of control over the stolen item. But even if this were correct, the effect would be to
downgrade the crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution have not been completed, the
taking not having been accomplished. Perhaps this point could serve as fertile ground for future discussion, but our concern now is whether there
is indeed a crime of frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover, such issue will not apply to
the facts of this particular case. We are satisfied beyond reasonable doubt that the taking by the petitioner was completed in this case. With intent
to gain, he acquired physical possession of the stolen cases of detergent for a considerable period of time that he was able to drop these off at a
spot in the parking lot, and long enough to load these onto a taxicab.

Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of the same.[92] And long ago, we asserted in People v. Avila:[93]

x x x [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into the physical power of the thief, which
idea is qualified by other conditions, such as that the taking must be effected animo lucrandi and without the consent of the owner; and it will be
here noted that the definition does not require that the taking should be effected against the will of the owner but merely that it should be without
his consent, a distinction of no slight importance.[94]

Insofar as we consider the present question, unlawful taking is most material in this respect. Unlawful taking, which is the deprivation of ones
personal property, is the element which produces the felony in its consummated stage. At the same time, without unlawful taking as an act of
execution, the offense could only be attempted theft, if at all.

With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot have a frustrated stage. Theft can
only be attempted or consummated.

Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained possession over the stolen items,
the effect of the felony has been produced as there has been deprivation of property. The presumed inability of the offenders to freely dispose of
the stolen property does not negate the fact that the owners have already been deprived of their right to possession upon the completion of the
taking.

Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to freely dispose of the stolen property frustrates the
theft would introduce a convenient defense for the accused which does not reflect any legislated intent,[95] since the Court would have carved a
viable means for offenders to seek a mitigated penalty under applied circumstances that do not admit of easy classification. It is difficult to
formulate definite standards as to when a stolen item is susceptible to free disposal by the thief. Would this depend on the psychological belief of
the offender at the time of the commission of the crime, as implied in Dio?

Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the property, the location of the
property, the number and identity of people present at the scene of the crime, the number and identity of people whom the offender is expected
to encounter upon fleeing with the stolen property, the manner in which the stolen item had been housed or stored; and quite frankly, a whole lot
more. Even the fungibility or edibility of the stolen item would come into account, relevant as that would be on whether such property is capable
of free disposal at any stage, even after the taking has been consummated.

All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed deprived of property by one
who intended to produce such deprivation for reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for
therein, all of the acts of execution, including the taking, have been completed. If the facts establish the non-completion of the taking due to these
peculiar circumstances, the effect could be to downgrade the crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been completed, causing the unlawful deprivation of property, and
ultimately the consummation of the theft.

Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the legislated framework of the crime of
theft. The Revised Penal Code provisions on theft have not been designed in such fashion as to accommodate said rulings. Again, there is no
language in Article 308 that expressly or impliedly allows that the free disposition of the items stolen is in any way determinative of whether the
crime of theft has been produced. Dio itself did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Dio alone for legal support. These cases do not enjoy the weight of stare decisis, and even if they did, their
erroneous appreciation of our law on theft leave them susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which
has not since found favor from this Court.
We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched the success of his appeal on
our acceptance of the Dio and Flores rulings, his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken all
these years for us to recognize that there can be no frustrated theft under the Revised Penal Code does not detract from the correctness of this
conclusion. It will take considerable amendments to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to
Viada yields to the higher reverence for legislative intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.


Republic of the Philippines
Supreme Court
Manila
THIRD DIVISION
PEOPLE OF THE PHILIPPINES,Appellee,
- versus -
FORD GUTIERREZ y DIMAANO, Appellant.
G.R. No. 188602
x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

On appeal is the March 12, 2009 Decision[1] of the Court of Appeals (CA) in CA-G.R. CR.-H.C. No. 02680, which affirmed with modifications the
August 7, 2006 decision[2] of the Regional Trial Court (RTC) of Makati City, Branch 62, in Criminal Case Nos. 03-3639, 03-3640, and 03-3641-43,
finding appellant Ford Gutierrez y Dimaano (appellant) guilty beyond reasonable doubt of murder, frustrated murder and three (3) counts of
attempted murder.
On August 15, 2003, five (5) separate Informations for murder, frustrated murder and three (3) counts of attempted murder were filed against
appellant. The accusatory portions of the Informations read:

Criminal Case No. 03-3639


For: Murder

That on or about the 17th day of May, 2003, in the City of Makati, Philippines, a place within the jurisdiction of this Honorable Court, the above-
named accused, armed with [a] gun, by means of treachery and abuse of superior strength, with intent to kill, did then and there willfully,
unlawfully and feloniously fired his gun towards the person of LEO SALVADOR REGIS, thereby hitting him and inflicting mortal wounds which
caused his death.[3]

Criminal Case No. 03-3640


For: Frustrated Murder

That on or about the 17th day of May, 2003, in the City of Makati, Philippines, a place within the jurisdiction of this Honorable Court, the above-
named accused, armed with [a] gun, by means of treachery and abuse of superior strength, with intent to kill, did then and there willfully,
unlawfully and feloniously attack, assault and shot one ALEXIS DALIT y BALOSBALOS hitting him on the arm, thus performing all the acts of
execution which would have produced the crime of murder as a consequence but nevertheless did not produce it by reason of a cause independent
of the will of the accused, that is due to the timely and able medical attendance rendered to the said ALEXIS DALIT y BALOSBALOS which prevented
his death.[4]

Criminal Case No. 03-3641


For: Attempted Murder

That on or about the 17th day of May, 2003, in the City of Makati, Philippines, a place within the jurisdiction of this Honorable Court, the above-
named accused, armed with a gun, with treachery, with intent to kill, did then and there willfully, unlawfully and feloniously fired his gun towards
one Jaypee S. Boneo, thus commencing the commission of the crime of Murder directly by overt acts but did not perform all the acts of execution
which should produce the crime of Murder by reason of cause or causes other than his own spontaneous desistance, that is due to the fact that he
was not able to hit the said Jaypee S. Boneo.[5]

Criminal Case No. 03-3642


For: Attempted Murder

That on or about the 17th day of May, 2003, in the City of Makati, Philippines, a place within the jurisdiction of this Honorable Court, the above-
named accused, armed with a gun, with treachery, with intent to kill, did then and there willfully, unlawfully and feloniously fired his gun towards
one Randy S. Marcelo, thus commencing the commission of the crime of Murder directly by overt acts but did not perform all the acts of execution
which should produce the crime of Murder by reason of cause or causes other than his own spontaneous desistance, that is due to the fact that he
was not able to hit the said Randy S. Marcelo.[6]

Criminal Case No. 03-3643


For: Attempted Murder

That on or about the 17th day of May 2003, in the City of Makati, Philippines, a place within the jurisdiction of this Honorable Court, the above-
named accused, armed with a gun, with treachery, with intent to kill, did then and there willfully, unlawfully and feloniously fired his gun towards
one Jefferson S. Gallemit, thus commencing the commission of the crime of Murder directly by overt acts but did not perform all the acts of
execution which should produce the crime of Murder by reason of cause or causes other than his own spontaneous desistance, that is due to the
fact that he was not able to hit the said Jefferson S. Gallemit.[7]

When arraigned, appellant, with the assistance of counsel de oficio, entered a plea of not guilty to the charges. Trial on the merits then ensued.

The Office of the Solicitor General (OSG) summed up the prosecutions version as follows:
On May 17, 2003 at nine oclock in the evening, the deceased Leo Salvador Regis, private complainants Randy Marcelo, Jefferson Gallemit, Jaypee
Boneo and Alexis Dalit were talking to each other in front of the house of the deceased at 477 Narra St., Cembo, Makati City. They noticed the
presence of appellant along the street and thought that appellant would just pass by. However, when appellant was two (2) arms length away in
front of them, appellant suddenly raised his arm and shot the deceased Regis with a .45 caliber pistol. After he was hit on the chest, Regis said
Aray!, embraced Randy Marcelo who was seated on his left, and fell off his chair to the ground (TSN, June 2, 2004, pp. 8-11, 17-26).

Jefferson Gallemit, Jaypee Boneo and Alexis Dalit stood from their seats. Appellant fired several shots thereafter, one of which hit Dalits arm.
Boneo and Gallemit ran up the street while Dalit ran in the opposite direction and hid behind a car. In the meantime, the deceased Leo Salvador
Regis and Randy Marcelo were still huddled together at the spot where the deceased fell. Appellant stayed at the same spot where he fired the
first shot even after the three ran away. (Ibid., pp. 26-31).
Appellant then pursued Dalit down the street but did not catch him, prompting appellant to say: Pagnaabutan ko kayo, pagpapatayin ko kayo! Dalit
then sought refuge at BLISS Makati and contacted the police from there (Ibid., pp. 31-34).

The police arrived at the scene after twenty (20) minutes. Dalit was brought to the Ospital ng Makati where his wound was dressed. He was
operated on at the Philippine Orthopedic Hospital (Ibid., pp. 34-41). Regis was brought to the Ospital ng Makati by Randy Marcelo where he died
that night (TSN, June 22, 2005, p. 14). [8]

Appellant for his part asserted self-defense. He testified that:

At around 8 oclock p.m. of May 17, 2003, he went to an ihaw-ihaw restaurant with live band in Guadalupe in order to relax. After taking two (2)
bottles of beer, he decided to go home, took a jeepney ride and alighted in front of a bakery owned by Barangay Captain Leo Magbantay, one
hundred twenty (120) meters away from his house. While passing by, he noticed a group of five youngsters who were at the right side of the street.
Among them, he only knew Loloy (Jaypee) Boneo, whom he used to babysit when the latter was still young.

While walking, one in the group cursed him and shouted tang ina mo! Since he was the only passerby, he stopped and looked at them, but two (2)
from the group approached him. He was suddenly boxed by Regis Ado, while Dalit was just beside Ado. When he fell on the ground, Ado
continuously beat him, then suddenly, a gun fell from Leo Regis. He immediately got hold of it, and when Leo Regis was supposed to attack him
again, he kicked Leo which made him [to fall] down. When he stood up and saw Regis standing up, he fired a shot at him. He continuously fired the
gun, which was directed towards the ground so as to warn the others.

Thereafter, he fled the scene, and threw the gun on a vacant lot. Since he did not know what to do, and confused, he took a jeepney going to
Pateros, but since, he had no money, he alighted somewhere, and rested. When he finally regained his senses, he went to Cubao and borrowed
money from one of their retailers. [9]

Not finding credence in appellant's claim of self-defense, the RTC convicted him of murder, frustrated murder and attempted murder on three (3)
counts:

WHEREFORE, in view of the foregoing, finding the accused guilty beyond reasonable doubt of the murder of Leo Salvador Regis, the frustrated
murder committed against Alexis B. Dalit, and the three counts of attempted murder committed against Jaypee S. Boneo, Randy S. Marcelo &
Jefferson S. Gallemit, the court hereby imposes the following penalties:

1. in criminal case no. 03-3639 for murder of Leo Salvador E. Regis, the court hereby sentences him to suffer the penalty of imprisonment reclusion
perpetua, to pay the heirs of the victim the sum of P50,000.00 as civil indemnity and the amount of Php 102,337.25 as actual damages;
2. in criminal case no. 03-3640 for the frustrated murder committed against Alexis B. Dalit, the [c]ourt hereby sentences him to suffer the penalty
of imprisonment of 8 years and 20 days as minimum to 14 years, 10 months and 20 days as maximum and to indemnify the sum of Php 22,596.50,
representing the victims expenses for medical services and medicine;
3. in criminal case no. 03-3641 for the attempted murder committed against Jaypee S. Boneo, the court hereby sentences the accused to suffer the
penalty of imprisonment of from Two (2) years, Four (4) months and One (1) day of prision correccional, as minimum, to Eight (8) years and One (1)
day of prision mayor, as maximum;
4. in criminal case no. 03-3642 for the attempted murder committed against Randy S. Marcelo, the court hereby sentences the accused to suffer
the penalty of imprisonment of from Two (2) years, Four (4) months and One (1) day of prision correccional, as minimum, to Eight (8) years and
One (1) day of prision mayor, as maximum;
5. in criminal case no. 03-3643 for the attempted murder committed against Jefferson S. Gallemit, the court hereby sentences the accused to suffer
the penalty of imprisonment of from Two (2) years, Four (4) months and One (1) day of prision correccional, as minimum, to Eight (8) years and
One (1) day of prision mayor, as maximum.

SO ORDERED.[10]

Appellant filed an appeal before the CA, assigning in his brief this lone error allegedly committed by the trial court:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIMES CHARGED, WHEN HIS GUILT HAS NOT BEEN PROVEN
BEYOND REASONABLE DOUBT, BY GIVING WEIGHT AND CREDENCE TO THE CONTRADICTORY TESTIMONIES OF THE PROSECUTION
EYEWITNESSES.[11]

The OSG, on behalf of the People, also filed its brief[12] with a recommendation for the modifications of the felony and of the award for damages.
It asserted that the trial court correctly gave credence to the testimonies of the prosecution witnesses and rejected appellants claim of self-
defense. The OSG insisted that appellants guilt for murder in Criminal Case No. 03-3639 and attempted murder on three (3) counts in Criminal Case
Nos. 03-3641-43 was proven beyond reasonable doubt. However, in Criminal Case No. 03-3640, appellant should be held liable only for attempted
murder and not for frustrated murder, since the wound inflicted on Alexis B. Dalit was not life-threatening. The OSG, therefore, prayed that
appellants conviction for frustrated murder be reduced to attempted murder with the corresponding reduction of penalty. Finally, it prayed for
modification of the actual damages awarded, and for the grant of moral and exemplary damages to the heirs of Leo Salvador E. Regis.

On March 12, 2009, the CA rendered the assailed Decision, affirming, but with modifications, the RTC decision, viz.:

WHEREFORE, premises considered, the 7 August 2006 decision of the Regional Trial Court of Makati City (Branch 62) in Criminal Case No. 03-3639
for murder is AFFIRMED with MODIFICATION as to the award of damages. The award of actual damages in favor of the heirs of Leo Salvador E.
Regis is reduced to P42,337.25. Moral damages of P50,000.00, temperate damages of P10,000.00, and exemplary damages of P10,000.00 are
additionally awarded to the heirs of Leo Salvador E. Regis.
The 7 August 2006 decision of the Regional Trial Court of Makati City (Branch 62) in Criminal Case No. 03-3640 for frustrated murder is MODIFIED.
Accused-appellant Ford D. Gutierrez is found GUILTY of committing the crime of ATTEMPTED MURDER and sentenced to suffer the indeterminate
imprisonment of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years and one (1) day of prision
mayor, as maximum. The award of actual damages in favor of the victim Alexis B. Dalit is AFFIRMED.

The 7 August 2006 decision of the Regional Trial Court of Makati City (Branch 62) in Criminal Case Nos. 03-3641, 03-3642 and 03-3643 for
attempted murder is AFFIRMED.

SO ORDERED.[13]

Appellant is now before this Court, submitting for resolution the same matters argued before the CA. Through his Manifestation in Lieu of
Supplemental Brief,[14] appellant states that he will not file a Supplemental Brief and, in lieu thereof, he will adopt the Appellants Brief he filed
before the appellate court. The OSG, likewise, manifests that it is no longer filing a supplemental brief.[15]

Appellant assails the trial court and the CA for giving credence to the prosecutions evidence. He admits having killed Regis and wounding Dalit, but
insists that he did so in self-defense.

Self-defense is an affirmative allegation and offers exculpation from liability for crimes only if satisfactorily proved. It requires (a) unlawful
aggression on the part of the victim; (b) reasonable necessity of the means employed by the accused to repel it; and (c) lack of sufficient
provocation on his part.[16]

In People of the Philippines v. Bienvenido Mara, we explained:

One who admits killing or fatally injuring another in the name of self-defense bears the burden of proving: (1) unlawful aggression on the part of
the victim; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person
claiming self-defense. By invoking self-defense, the burden is placed on the accused to prove its elements clearly and convincingly. While all three
elements must concur, self-defense relies first and foremost on proof of unlawful aggression on the part of the victim. If no unlawful aggression is
proved, no self-defense may be successfully pleaded. [17]

In this case, appellant utterly failed to discharge the burden of proving unlawful aggression. His version of the events was uncorroborated, and his
testimony was found to be less credible by the trial court. On the other hand, the surviving victims were unanimous that appellant suddenly fired at
them, without any provocation on their part. The credibility of the prosecution witnesses had been weighed by the trial court, and it found their
testimonies to be more convincing. As a rule, the appellate court gives full weight and respect to the determination by the trial court of the
credibility of witnesses, since the trial judge has the best opportunity to observe their demeanor.[18] While this rule admits of exceptions, none of
such exceptions obtains in this case.

In Razon v. People,[19] we held:

Self-defense cannot be justifiably appreciated when uncorroborated by independent and competent evidence or when it is extremely doubtful by
itself. Indeed, in invoking self-defense, the burden of evidence is shifted and the accused claiming self-defense must rely on the strength of his own
evidence and not on the weakness of the prosecution.[20]

The trial court and the CA cannot, therefore, be faulted for rejecting appellants plea of self-defense.

This Court also agrees with the trial court in appreciating treachery as a qualifying circumstance. The essence of treachery is the sudden and
unexpected attack by the aggressor on unsuspecting victims, depriving the latter of any real chance to defend themselves, thereby ensuring its
commission without risk to the aggressor, and without the slightest provocation on the part of the victims.[21]

The pieces of evidence gleaned by the trial court, the facts, are enough to show that treachery was employed by appellant. The attack was sudden,
as testified to by the witnesses, and unexpected. Provocation on the part of the victims was not proven, and appellants testimony that the victims
were about to attack him cannot be given credence. The victims had no inkling that an attack was forthcoming and had no opportunity to mount a
defense. Thus, treachery was correctly appreciated as a circumstance to qualify the crime to murder.

Under Article 248[22] of the Revised Penal Code (RPC), as amended, the penalty imposed for the crime of murder is reclusion perpetua to death.
There being no aggravating or mitigating circumstance, the penalty imposed on appellant is reclusion perpetua, pursuant to Article 63, paragraph
2[23] of the RPC. The prison term imposed by the trial court in Criminal Case No. 03-3639 is correct.

We also affirm the CA ruling that appellant is guilty of attempted murder, not of frustrated murder, in Criminal Case No. 03-3640 for the injury
sustained by Dalit. No convincing proof was offered to show that the wound inflicted on Dalit was fatal and would have caused his death had
medical help not been provided. It is well settled that where the wounds inflicted on the victim are not sufficient to cause his death, the crime is
only attempted murder, as the accused had not performed all the acts of execution that would have brought about the victim's death.[24]

The CA correctly assessed the penalty to be imposed on appellant for attempted murder in Criminal Case Nos. 03-3640 to 03-3643. The penalty for
attempted murder is two degrees lower than that prescribed for the consummated felony under Article 51 of the RPC. Accordingly, the imposable
penalty is prision mayor. Absent any mitigating or aggravating circumstance, the penalty shall be imposed in its medium period. Applying the
Indeterminate Sentence Law, the minimum penalty to be imposed should be within the range of prision correccional, and the maximum penalty to
be imposed should be within the range of prision mayor in its medium period. Hence, for the crime of attempted murder, appellant was rightly
sentenced by the CA to suffer the penalty of imprisonment of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to
eight (8) years and one (1) day of prision mayor, as maximum.

And now, the award of damages. When death occurs due to a crime, the following may be recovered: (1) civil indemnity ex delicto for the death of
the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; (5) attorney's fees and expenses of litigation; and (6)
interest, in proper cases.[25]

The CA awarded P42,337.25 as actual damages and P10,000.00 as temperate damages to the heirs of Regis. In People v. Villanueva[26] and People
v. Abrazaldo,[27] we ruled that temperate and actual damages are mutually exclusive in that both may not be awarded at the same time. Hence,
no temperate damages may be awarded if actual damages have already been granted. The award of P10,000.00 as temperate damages must,
therefore, be deleted.

The grant of P50,000.00 as civil indemnity and P50,000.00 as moral damages is proper, and thus, we sustain the same. In murder, the grant of civil
indemnity, which has been fixed by jurisprudence at P50,000.00, requires no proof other than the fact of death as a result of the crime and proof of
the accused's responsibility therefor.[28] Moral damages, on the
other hand, are awarded in view of the violent death of the victim. There is no need for any allegation or proof of the emotional sufferings of the
heirs.[29]

Likewise, the award of exemplary damages is warranted when the commission of the offense is attended by an aggravating circumstance, whether
ordinary or qualifying,[30] as in this case. Accordingly, we sustain the CAs award of exemplary damages to the heirs of Regis, but we increase the
award to P30,000.00.

Similarly, we affirm the award of P22,596.50 as actual damages to Dalit, who is, likewise, entitled to moral damages, which this Court fixes in the
amount of P40,000.00. Ordinary human experience and common sense dictate that the wounds inflicted on the surviving victims would naturally
cause physical suffering, fright, serious anxiety, moral shock, and similar injuries. Finally, the award in the amount of P20,000.00, as exemplary
damages to Dalit, is also in order considering that the crime was attended by the qualifying circumstance of treachery.[31]

WHEREFORE, the appeal is DISMISSED. The assailed Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 02680 is AFFIRMED with
MODIFICATIONS. Appellant Ford Gutierrez y Dimaano is found GUILTY beyond reasonable doubt of MURDER (Criminal Case No. 03-3639) and is
hereby sentenced to suffer the penalty of reclusion perpetua. Appellant is also ordered to pay the heirs of Leo Salvador E. Regis the amounts of
P42,337.25 as actual damages, P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P30,000.00 as exemplary damages.

Ford Gutierrez y Dimaano is also found guilty beyond reasonable doubt of four (4) counts of ATTEMPTED MURDER (Criminal Case Nos. 03-3640 to
03-3643) and is hereby sentenced to suffer the penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to
eight (8) years and one (1) day of prision mayor, as maximum, on each count, with all the accessory penalties imposed by law. Appellant is further
ordered to pay Alexis B. Dalit the amounts of P22,596.50 as actual damages, P40,000.00 as moral damages, and P20,000.00 as exemplary damages.

SO ORDERED.