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Twelfth Congress Third Regular Session Begun and held in Metro Manila, on Monday, the twenty-second day of July,

two thousand three. Republic Act No. 9262 08, 2004 March

Women, Convention on the Rights of the Child and other international human rights instruments of which the Philippines is a party. SECTION 3. Definition of Terms.- As used in this Act, (a) "Violence against women and their children" refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts: A. "Physical Violence" refers to acts that include bodily or physical harm; B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to: a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal

AN ACT DEFINING VIOLENCE AGAINST WOMEN AND THEIR CHILDREN, PROVIDING FOR PROTECTIVE MEASURES FOR VICTIMS, PRESCRIBING PENALTIES THEREFORE, AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: SECTION 1. Short Title.- This Act shall be known as the "Anti-Violence Against Women and Their Children Act of 2004". SECTION 2. Declaration of Policy.- It is hereby declared that the State values the dignity of women and children and guarantees full respect for human rights. The State also recognizes the need to protect the family and its members particularly women and children, from violence and threats to their personal safety and security. Towards this end, the State shall exert efforts to address violence committed against women and children in keeping with the fundamental freedoms guaranteed under the Constitution and the Provisions of the Universal Declaration of Human Rights, the convention on the Elimination of all forms of discrimination Against

home or sleep together in the same room with the abuser; b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion; c) Prostituting the woman or child. C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children. D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited to the following: 1. withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious and moral grounds as defined in Article 73 of the Family Code; 2. deprivation or threat of deprivation of financial resources

and the right to the use and enjoyment of the conjugal, community or property owned in common; 3. destroying household property; 4. controlling the victims' own money or properties or solely controlling the conjugal money or properties. (b) "Battery" refers to an act of inflicting physical harm upon the woman or her child resulting to the physical and psychological or emotional distress. (c) "Battered Woman Syndrome" refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse. (d) "Stalking" refers to an intentional act committed by a person who, knowingly and without lawful justification follows the woman or her child or places the woman or her child under surveillance directly or indirectly or a combination thereof. (e) "Dating relationship" refers to a situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship. (f) "Sexual relations" refers to a single sexual act which may or may

not result in the bearing of a common child. (g) "Safe place or shelter" refers to any home or institution maintained or managed by the Department of Social Welfare and Development (DSWD) or by any other agency or voluntary organization accredited by the DSWD for the purposes of this Act or any other suitable place the resident of which is willing temporarily to receive the victim. (h) "Children" refers to those below eighteen (18) years of age or older but are incapable of taking care of themselves as defined under Republic Act No. 7610. As used in this Act, it includes the biological children of the victim and other children under her care. SECTION 4. Construction.- This Act shall be liberally construed to promote the protection and safety of victims of violence against women and their children. SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and their children is committed through any of the following acts: (a) Causing physical harm to the woman or her child; (b) Threatening to cause the woman or her child physical harm; (c) Attempting to cause the woman or her child physical harm; (d) Placing the woman or her child in fear of imminent physical harm; (e) Attempting to compel or compelling the woman or her child

to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct: (1) Threatening to deprive or actually depriving the woman or her child of custody to her/his family; (2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman's children insufficient financial support; (3) Depriving or threatening to deprive the woman or her child of a legal right; (4) Preventing the woman in engaging in any legitimate profession, occupation, business or activity or controlling the victim's own mon4ey or properties, or solely controlling the conjugal or common money, or properties; (f) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; (g) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not

constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family; (h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: (1) Stalking or following the woman or her child in public or private places; (2) Peering in the window or lingering outside the residence of the woman or her child; (3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; (4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and (5) Engaging in any form of harassment or violence; (i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the woman's child/children. SECTION 6. Penalties.- The crime of violence against women and their children, under Section 5 hereof

shall be punished according to the following rules: (a) Acts falling under Section 5(a) constituting attempted, frustrated or consummated parricide or murder or homicide shall be punished in accordance with the provisions of the Revised Penal Code. If these acts resulted in mutilation, it shall be punishable in accordance with the Revised Penal Code; those constituting serious physical injuries shall have the penalty of prison mayor; those constituting less serious physical injuries shall be punished by prision correccional; and those constituting slight physical injuries shall be punished by arresto mayor. Acts falling under Section 5(b) shall be punished by imprisonment of two degrees lower than the prescribed penalty for the consummated crime as specified in the preceding paragraph but shall in no case be lower than arresto mayor. (b) Acts falling under Section 5(c) and 5(d) shall be punished by arresto mayor; (c) Acts falling under Section 5(e) shall be punished by prision correccional; (d) Acts falling under Section 5(f) shall be punished by arresto mayor; (e) Acts falling under Section 5(g) shall be punished by prision mayor; (f) Acts falling under Section 5(h) and Section 5(i) shall be punished by prision mayor.

If the acts are committed while the woman or child is pregnant or committed in the presence of her child, the penalty to be applied shall be the maximum period of penalty prescribed in the section. In addition to imprisonment, the perpetrator shall (a) pay a fine in the amount of not less than One hundred thousand pesos (P100,000.00) but not more than three hundred thousand pesos (300,000.00); (b) undergo mandatory psychological counseling or psychiatric treatment and shall report compliance to the court. SECTION 7. Venue.- The Regional Trial Court designated as a Family Court shall have original and exclusive jurisdiction over cases of violence against women and their children under this law. In the absence of such court in the place where the offense was committed, the case shall be filed in the Regional Trial Court where the crime or any of its elements was committed at the option of the compliant. SECTION 8. Protection Orders.- A protection order is an order issued under this act for the purpose of preventing further acts of violence against a woman or her child specified in Section 5 of this Act and granting other necessary relief. The relief granted under a protection order serve the purpose of safeguarding the victim from further harm, minimizing any disruption in the victim's daily life, and facilitating the opportunity and ability of the victim to independently regain control over her life. The provisions of the protection order shall be enforced by law enforcement agencies. The protection orders that

may be issued under this Act are the barangay protection order (BPO), temporary protection order (TPO) and permanent protection order (PPO). The protection orders that may be issued under this Act shall include any, some or all of the following reliefs: (a) Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the acts mentioned in Section 5 of this Act; (b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the petitioner, directly or indirectly; (c) Removal and exclusion of the respondent from the residence of the petitioner, regardless of ownership of the residence, either temporarily for the purpose of protecting the petitioner, or permanently where no property rights are violated, and if respondent must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the respondent has gathered his things and escort respondent from the residence; (d) Directing the respondent to stay away from petitioner and designated family or household member at a distance specified by the court, and to stay away from the residence, school, place of employment, or any specified place frequented by the petitioner and any designated family or household member; (e) Directing lawful possession and use by petitioner of an automobile and other essential personal effects,

regardless of ownership, and directing the appropriate law enforcement officer to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to the possession of the automobile and other essential personal effects, or to supervise the petitioner's or respondent's removal of personal belongings; (f) Granting a temporary or permanent custody of a child/children to the petitioner; (g) Directing the respondent to provide support to the woman and/or her child if entitled to legal support. Notwithstanding other laws to the contrary, the court shall order an appropriate percentage of the income or salary of the respondent to be withheld regularly by the respondent's employer for the same to be automatically remitted directly to the woman. Failure to remit and/or withhold or any delay in the remittance of support to the woman and/or her child without justifiable cause shall render the respondent or his employer liable for indirect contempt of court; (h) Prohibition of the respondent from any use or possession of any firearm or deadly weapon and order him to surrender the same to the court for appropriate disposition by the court, including revocation of license and disqualification to apply for any license to use or possess a firearm. If the offender is a law enforcement agent, the court shall order the offender to surrender his firearm and shall direct the appropriate authority to investigate on the offender and take appropriate action on matter;

(i) Restitution for actual damages caused by the violence inflicted, including, but not limited to, property damage, medical expenses, childcare expenses and loss of income; (j) Directing the DSWD or any appropriate agency to provide petitioner may need; and (k) Provision of such other forms of relief as the court deems necessary to protect and provide for the safety of the petitioner and any designated family or household member, provided petitioner and any designated family or household member consents to such relief. Any of the reliefs provided under this section shall be granted even in the absence of a decree of legal separation or annulment or declaration of absolute nullity of marriage. The issuance of a BPO or the pendency of an application for BPO shall not preclude a petitioner from applying for, or the court from granting a TPO or PPO. SECTION 9. Who may file Petition for Protection Orders. A petition for protection order may be filed by any of the following: (a) the offended party; (b) parents or guardians of the offended party; (c) ascendants, descendants or collateral relatives within the fourth civil degree of consanguinity or affinity;

(d) officers or social workers of the DSWD or social workers of local government units (LGUs); (e) police officers, preferably those in charge of women and children's desks; (f) Punong Barangay or Barangay Kagawad; (g) lawyer, counselor, therapist or healthcare provider of the petitioner; (h) At least two (2) concerned responsible citizens of the city or municipality where the violence against women and their children occurred and who has personal knowledge of the offense committed. SECTION 10. Where to Apply for a Protection Order. Applications for BPOs shall follow the rules on venue under Section 409 of the Local Government Code of 1991 and its implementing rules and regulations. An application for a TPO or PPO may be filed in the regional trial court, metropolitan trial court, municipal trial court, municipal circuit trial court with territorial jurisdiction over the place of residence of the petitioner: Provided, however, That if a family court exists in the place of residence of the petitioner, the application shall be filed with that court. SECTION 11. How to Apply for a Protection Order. The application for a protection order must be in writing, signed and verified under oath by the applicant. It may be filed as an independent action or as incidental relief in any civil or criminal case the subject matter or issues thereof partakes of a violence

as described in this Act. A standard protection order application form, written in English with translation to the major local languages, shall be made available to facilitate applications for protections order, and shall contain, among other, the following information: (a) names and addresses of petitioner and respondent; (b) description of relationships between petitioner and respondent; (c) a statement of the circumstances of the abuse; (d) description of the reliefs requested by petitioner as specified in Section 8 herein; (e) request for counsel and reasons for such; (f) request for waiver of application fees until hearing; and (g) an attestation that there is no pending application for a protection order in another court. If the applicants is not the victim, the application must be accompanied by an affidavit of the applicant attesting to (a) the circumstances of the abuse suffered by the victim and (b) the circumstances of consent given by the victim for the filling of the application. When disclosure of the address of the victim will pose danger to her life, it shall be so stated in the application. In such a case, the applicant shall attest that the victim is residing in the municipality or city over which court has territorial jurisdiction, and shall provide a mailing address for purpose of service processing.

An application for protection order filed with a court shall be considered an application for both a TPO and PPO. Barangay officials and court personnel shall assist applicants in the preparation of the application. Law enforcement agents shall also extend assistance in the application for protection orders in cases brought to their attention. SECTION 12. Enforceability of Protection Orders. All TPOs and PPOs issued under this Act shall be enforceable anywhere in the Philippines and a violation thereof shall be punishable with a fine ranging from Five Thousand Pesos (P5,000.00) to Fifty Thousand Pesos (P50,000.00) and/or imprisonment of six (6) months. SECTION 13. Legal Representation of Petitioners for Protection Order. If the woman or her child requests in the applications for a protection order for the appointment of counsel because of lack of economic means to hire a counsel de parte, the court shall immediately direct the Public Attorney's Office (PAO) to represent the petitioner in the hearing on the application. If the PAO determines that the applicant can afford to hire the services of a counsel de parte, it shall facilitate the legal representation of the petitioner by a counsel de parte. The lack of access to family or conjugal resources by the applicant, such as when the same are controlled by the perpetrator, shall qualify the petitioner to legal representation by the PAO.

However, a private counsel offering free legal service is not barred from representing the petitioner. SECTION 14. Barangay Protection Orders (BPOs); Who May Issue and How. - Barangay Protection Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator to desist from committing acts under Section 5 (a) and (b) of this Act. A Punong Barangay who receives applications for a BPO shall issue the protection order to the applicant on the date of filing after ex parte determination of the basis of the application. If the Punong Barangay is unavailable to act on the application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO is issued by a Barangay Kagawad the order must be accompanied by an attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time for the issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct any barangay official to effect is personal service. The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong Barangay. SECTION 15. Temporary Protection Orders. Temporary Protection Orders (TPOs) refers to the protection order issued by the court on the date of filing of the application after ex parte determination that such order should be issued. A court may grant

in a TPO any, some or all of the reliefs mentioned in this Act and shall be effective for thirty (30) days. The court shall schedule a hearing on the issuance of a PPO prior to or on the date of the expiration of the TPO. The court shall order the immediate personal service of the TPO on the respondent by the court sheriff who may obtain the assistance of law enforcement agents for the service. The TPO shall include notice of the date of the hearing on the merits of the issuance of a PPO. SECTION 16. Permanent Protection Orders. Permanent Protection Order (PPO) refers to protection order issued by the court after notice and hearing. Respondents non-appearance despite proper notice, or his lack of a lawyer, or the non-availability of his lawyer shall not be a ground for rescheduling or postponing the hearing on the merits of the issuance of a PPO. If the respondents appears without counsel on the date of the hearing on the PPO, the court shall appoint a lawyer for the respondent and immediately proceed with the hearing. In case the respondent fails to appear despite proper notice, the court shall allow ex parte presentation of the evidence by the applicant and render judgment on the basis of the evidence presented. The court shall allow the introduction of any history of abusive conduct of a respondent even if the same was not directed against the applicant or the person for whom the applicant is made. The court shall, to the extent possible, conduct the hearing on the merits of the issuance of a PPO in

one (1) day. Where the court is unable to conduct the hearing within one (1) day and the TPO issued is due to expire, the court shall continuously extend or renew the TPO for a period of thirty (30) days at each particular time until final judgment is issued. The extended or renewed TPO may be modified by the court as may be necessary or applicable to address the needs of the applicant. The court may grant any, some or all of the reliefs specified in Section 8 hereof in a PPO. A PPO shall be effective until revoked by a court upon application of the person in whose favor the order was issued. The court shall ensure immediate personal service of the PPO on respondent. The court shall not deny the issuance of protection order on the basis of the lapse of time between the act of violence and the filing of the application. Regardless of the conviction or acquittal of the respondent, the Court must determine whether or not the PPO shall become final. Even in a dismissal, a PPO shall be granted as long as there is no clear showing that the act from which the order might arise did not exist. SECTION 17. Notice of Sanction in Protection Orders. The following statement must be printed in boldfaced type or in capital letters on the protection order issued by the Punong Barangay or court: "VIOLATION OF THIS ORDER IS PUNISHABLE BY LAW."

SECTION 18. Mandatory Period For Acting on Applications For Protection Orders Failure to act on an application for a protection order within the reglementary period specified in the previous section without justifiable cause shall render the official or judge administratively liable. SECTION 19. Legal Separation Cases. In cases of legal separation, where violence as specified in this Act is alleged, Article 58 of the Family Code shall not apply. The court shall proceed on the main case and other incidents of the case as soon as possible. The hearing on any application for a protection order filed by the petitioner must be conducted within the mandatory period specified in this Act. SECTION 20. Priority of Application for a Protection Order. Ex parte and adversarial hearings to determine the basis of applications for a protection order under this Act shall have priority over all other proceedings. Barangay officials and the courts shall schedule and conduct hearings on applications for a protection order under this Act above all other business and, if necessary, suspend other proceedings in order to hear applications for a protection order. SECTION 21. Violation of Protection Orders. A complaint for a violation of a BPO issued under this Act must be filed directly with any municipal trial court, metropolitan trial court, or municipal circuit trial court that has territorial jurisdiction over the barangay that issued the BPO. Violation of a BPO shall be punishable by imprisonment of thirty (30) days without prejudice to

any other criminal or civil action that the offended party may file for any of the acts committed. A judgement of violation of a BPO ma be appealed according to the Rules of Court. During trial and upon judgment, the trial court may motu proprio issue a protection order as it deems necessary without need of an application. Violation of any provision of a TPO or PPO issued under this Act shall constitute contempt of court punishable under Rule 71 of the Rules of Court, without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed. SECTION 22. Applicability of Protection Orders to Criminal Cases. The foregoing provisions on protection orders shall be applicable in impliedly instituted with the criminal actions involving violence against women and their children. SECTION 23. Bond to Keep the Peace. The Court may order any person against whom a protection order is issued to give a bond to keep the peace, to present two sufficient sureties who shall undertake that such person will not commit the violence sought to be prevented. Should the respondent fail to give the bond as required, he shall be detained for a period which shall in no case exceed six (6) months, if he shall have been prosecuted for acts punishable under Section 5(a) to 5(f) and not exceeding thirty (30) days, if for acts punishable under Section 5(g) to 5(I).

The protection orders referred to in this section are the TPOs and the PPOs issued only by the courts. SECTION 24. Prescriptive Period. Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty (20) years. Acts falling under Sections 5(g) to 5(I) shall prescribe in ten (10) years. SECTION 25. Public Crime. Violence against women and their children shall be considered a public offense which may be prosecuted upon the filing of a complaint by any citizen having personal knowledge of the circumstances involving the commission of the crime. SECTION 26. Battered Woman Syndrome as a Defense. Victimsurvivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime, the courts shall be assisted by expert psychiatrists/ psychologists. SECTION 27. Prohibited Defense. Being under the influence of alcohol, any illicit drug, or any other mindaltering substance shall not be a defense under this Act. SECTION 28. Custody of children. The woman victim of violence shall be entitled to the custody and support of her child/children.

Children below seven (7) years old older but with mental or physical disabilities shall automatically be given to the mother, with right to support, unless the court finds compelling reasons to order otherwise. A victim who is suffering from battered woman syndrome shall not be disqualified from having custody of her children. In no case shall custody of minor children be given to the perpetrator of a woman who is suffering from Battered woman syndrome. SECTION 29. Duties of Prosecutors/Court Personnel. Prosecutors and court personnel should observe the following duties when dealing with victims under this Act: a) communicate with the victim in a language understood by the woman or her child; and b) inform the victim of her/his rights including legal remedies available and procedure, and privileges for indigent litigants. SECTION 30. Duties of Barangay Officials and Law Enforcers. Barangay officials and law enforcers shall have the following duties: (a) respond immediately to a call for help or request for assistance or protection of the victim by entering the necessary whether or not a protection order has been issued and ensure the safety of the victim/s; (b) confiscate any deadly weapon in the possession of the perpetrator or within plain view;

(c) transport or escort the victim/s to a safe place of their choice or to a clinic or hospital; (d) assist the victim in removing personal belongs from the house; (e) assist the barangay officials and other government officers and employees who respond to a call for help; (f) ensure the enforcement of the Protection Orders issued by the Punong Barangy or the courts; (g) arrest the suspected perpetrator wiithout a warrant when any of the acts of violence defined by this Act is occurring, or when he/she has personal knowledge that any act of abuse has just been committed, and there is imminent danger to the life or limb of the victim as defined in this Act; and (h) immediately report the call for assessment or assistance of the DSWD, social Welfare Department of LGUs or accredited non-government organizations (NGOs). Any barangay official or law enforcer who fails to report the incident shall be liable for a fine not exceeding Ten Thousand Pesos (P10,000.00) or whenever applicable criminal, civil or administrative liability. SECTION 31. Healthcare Provider Response to Abuse Any healthcare provider, including, but not limited to, an attending physician, nurse, clinician, barangay health worker, therapist or counselor who suspects abuse or has been informed by the victim of violence shall:

(a) properly document any of the victim's physical, emotional or psychological injuries; (b) properly record any of victim's suspicions, observations and circumstances of the examination or visit; (c) automatically provide the victim free of charge a medical certificate concerning the examination or visit; (d) safeguard the records and make them available to the victim upon request at actual cost; and (e) provide the victim immediate and adequate notice of rights and remedies provided under this Act, and services available to them. SECTION 32. Duties of Other Government Agencies and LGUs Other government agencies and LGUs shall establish programs such as, but not limited to, education and information campaign and seminars or symposia on the nature, causes, incidence and consequences of such violence particularly towards educating the public on its social impacts. It shall be the duty of the concerned government agencies and LGU's to ensure the sustained education and training of their officers and personnel on the prevention of violence against women and their children under the Act. SECTION 33. Prohibited Acts. A Punong Barangay, Barangay Kagawad or the court hearing an application for a protection order shall not order, direct, force or in any way unduly influence he applicant for a protection order to

compromise or abandon any of the reliefs sought in the application for protection under this Act. Section 7 of the Family Courts Act of 1997 and Sections 410, 411, 412 and 413 of the Local Government Code of 1991 shall not apply in proceedings where relief is sought under this Act. Failure to comply with this Section shall render the official or judge administratively liable. SECTION 34. Persons Intervening Exempt from Liability. In every case of violence against women and their children as herein defined, any person, private individual or police authority or barangay official who, acting in accordance with law, responds or intervenes without using violence or restraint greater than necessary to ensure the safety of the victim, shall not be liable for any criminal, civil or administrative liability resulting therefrom. SECTION 35. Rights of Victims. In addition to their rights under existing laws, victims of violence against women and their children shall have the following rights: (a) to be treated with respect and dignity; (b) to avail of legal assistance form the PAO of the Department of Justice (DOJ) or any public legal assistance office; (c) To be entitled to support services form the DSWD and LGUs' (d) To be entitled to all legal remedies and support as provided for under the Family Code; and

(e) To be informed of their rights and the services available to them including their right to apply for a protection order. SECTION 36. Damages. Any victim of violence under this Act shall be entitled to actual, compensatory, moral and exemplary damages. SECTION 37. Hold Departure Order. The court shall expedite the process of issuance of a hold departure order in cases prosecuted under this Act. SECTION 38. Exemption from Payment of Docket Fee and Other Expenses. If the victim is an indigent or there is an immediate necessity due to imminent danger or threat of danger to act on an application for a protection order, the court shall accept the application without payment of the filing fee and other fees and of transcript of stenographic notes. SECTION 39. Inter-Agency Council on Violence Against Women and Their Children (IAC-VAWC). In pursuance of the abovementioned policy, there is hereby established an Inter-Agency Council on Violence Against Women and their children, hereinafter known as the Council, which shall be composed of the following agencies: (a) Department of Social Welfare and Development (DSWD); (b) National Commission on the Role of Filipino Women (NCRFW); (c) Civil Service Commission (CSC); (d) Commission on Human rights (CHR)

(e) Council for the Welfare of Children (CWC); (f) Department of Justice (DOJ); (g) Department of the Interior and Local Government (DILG); (h) Philippine National Police (PNP); (i) Department of Health (DOH); (j) Department of Education (DepEd); (k) Department of Labor and Employment (DOLE); and (l) National Bureau of Investigation (NBI). These agencies are tasked to formulate programs and projects to eliminate VAW based on their mandates as well as develop capability programs for their employees to become more sensitive to the needs of their clients. The Council will also serve as the monitoring body as regards to VAW initiatives. The Council members may designate their duly authorized representative who shall have a rank not lower than an assistant secretary or its equivalent. These representatives shall attend Council meetings in their behalf, and shall receive emoluments as may be determined by the Council in accordance with existing budget and accounting rules and regulations. SECTION 40. Mandatory Programs and Services for Victims. The DSWD, and LGU's shall provide the victims temporary shelters, provide

counseling, psycho-social services and /or, recovery, rehabilitation programs and livelihood assistance. The DOH shall provide medical assistance to victims. SECTION 41. Counseling and Treatment of Offenders. The DSWD shall provide rehabilitative counseling and treatment to perpetrators towards learning constructive ways of coping with anger and emotional outbursts and reforming their ways. When necessary, the offender shall be ordered by the Court to submit to psychiatric treatment or confinement. SECTION 42. Training of Persons Involved in Responding to Violence Against Women and their Children Cases. All agencies involved in responding to violence against women and their children cases shall be required to undergo education and training to acquaint them with: a. the nature, extend and causes of violence against women and their children; b. the legal rights of, and remedies available to, victims of violence against women and their children; c. the services and facilities available to victims or survivors; d. the legal duties imposed on police officers to make arrest and to offer protection and assistance; and e. techniques for handling incidents of violence against women and their children that minimize the likelihood of injury to the officer and promote the safety of the victim or survivor.

The PNP, in coordination with LGU's shall establish an education and training program for police officers and barangay officials to enable them to properly handle cases of violence against women and their children. SECTION 43. Entitled to Leave. Victims under this Act shall be entitled to take a paid leave of absence up to ten (10) days in addition to other paid leaves under the Labor Code and Civil Service Rules and Regulations, extendible when the necessity arises as specified in the protection order. Any employer who shall prejudice the right of the person under this section shall be penalized in accordance with the provisions of the Labor Code and Civil Service Rules and Regulations. Likewise, an employer who shall prejudice any person for assisting a co-employee who is a victim under this Act shall likewise be liable for discrimination. SECTION 44. Confidentiality. All records pertaining to cases of violence against women and their children including those in the barangay shall be confidential and all public officers and employees and public or private clinics to hospitals shall respect the right to privacy of the victim. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer, or other identifying information of a victim or an immediate family member, without the latter's consent, shall be liable to the contempt power of the court.

Any person who violates this provision shall suffer the penalty of one (1) year imprisonment and a fine of not more than Five Hundred Thousand pesos (P500,000.00). SECTION 45. Funding The amount necessary to implement the provisions of this Act shall be included in the annual General Appropriations Act (GAA). The Gender and Development (GAD) Budget of the mandated agencies and LGU's shall be used to implement services for victim of violence against women and their children. SECTION 46. Implementing Rules and Regulations. Within six (6) months from the approval of this Act, the DOJ, the NCRFW, the DSWD, the DILG, the DOH, and the PNP, and three (3) representatives from NGOs to be identified by the NCRFW, shall promulgate the Implementing Rules and Regulations (IRR) of this Act. SECTION 47. Suppletory Application For purposes of this Act, the Revised Penal Code and other applicable laws, shall have suppletory application. SECTION 48. Separability Clause. If any section or provision of this Act is held unconstitutional or invalid, the other sections or provisions shall not be affected. SECTION 49. Repealing Clause All laws, Presidential decrees, executive orders and rules and regulations, or parts thereof, inconsistent with the provisions of this Act are hereby repealed or modified accordingly.

SECTION 50. Effectivity This Act shall take effect fifteen (15) days from the date of its complete publication in at least two (2) newspapers of general circulation.

Thirteenth Congress Second Regular Session Begun and held in Metro Manila, on Monday, the twenty-fifth day of July, two thousand and five. Republic Act No. 9344 AN ACT ESTABLISHING A COMPREHENSIVE JUVENILE JUSTICE AND WELFARE SYSTEM, CREATING THE JUVENILE JUSTICE AND WELFARE COUNCIL UNDER THE DEPARTMENT OF JUSTICE, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: TITLE I GOVERNING PRINCIPLES CHAPTER 1 TITLE, POLICY AND DEFINITION OF TERMS Section 1. Short Title and Scope. This Act shall be known as the "Juvenile Justice and Welfare Act of 2006." It shall cover the different stages involving children at risk and children in conflict with the law from prevention to rehabilitation and reintegration. SEC. 2. Declaration of State Policy. The following State policies shall be observed at all times: (a) The State recognizes the vital role of children and youth in nation building and shall promote and protect their physical, moral, spiritual, intellectual and social wellbeing. It shall inculcate in the youth

patriotism and nationalism, and encourage their involvement in public and civic affairs. (b) The State shall protect the best interests of the child through measures that will ensure the observance of international standards of child protection, especially those to which the Philippines is a party. Proceedings before any authority shall be conducted in the best interest of the child and in a manner which allows the child to participate and to express himself/herself freely. The participation of children in the program and policy formulation and implementation related to juvenile justice and welfare shall be ensured by the concerned government agency. (c) The State likewise recognizes the right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty and exploitation, and other conditions prejudicial to their development. (d) Pursuant to Article 40 of the United Nations Convention on the Rights of the Child, the State recognizes the right of every child alleged as, accused of, adjudged, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, taking into account the child's age and desirability of promoting his/her reintegration. Whenever appropriate and desirable, the State shall adopt measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. It

shall ensure that children are dealt with in a manner appropriate to their well-being by providing for, among others, a variety of disposition measures such as care, guidance and supervision orders, counseling, probation, foster care, education and vocational training programs and other alternatives to institutional care. (e) The administration of the juvenile justice and welfare system shall take into consideration the cultural and religious perspectives of the Filipino people, particularly the indigenous peoples and the Muslims, consistent with the protection of the rights of children belonging to these communities. (f) The State shall apply the principles of restorative justice in all its laws, policies and programs applicable to children in conflict with the law. SEC. 3. Liberal Construction of this Act. - In case of doubt, the interpretation of any of the provisions of this Act, including its implementing rules and regulations (IRRs), shall be construed liberally in favor of the child in conflict with the law. SEC. 4. Definition of Terms. - The following terms as used in this Act shall be defined as follows: (a) "Bail" refers to the security given for the release of the person in custody of the law, furnished by him/her or a bondsman, to guarantee his/her appearance before any court. Bail may be given in the form of corporate security, property bond, cash deposit, or recognizance.

(b) "Best Interest of the Child" refers to the totality of the circumstances and conditions which are most congenial to the survival, protection and feelings of security of the child and most encouraging to the child's physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. (e) "Child" refers to a person under the age of eighteen (18) years. (d) "Child at Risk" refers to a child who is vulnerable to and at the risk of committing criminal offenses because of personal, family and social circumstances, such as, but not limited to, the following: (1) being abused by any person through sexual, physical, psychological, mental, economic or any other means and the parents or guardian refuse, are unwilling, or unable to provide protection for the child; (2) being exploited including sexually or economically; (3) being abandoned or neglected, and after diligent search and inquiry, the parent or guardian cannot be found; (4) coming from a dysfunctional or broken family or without a parent or guardian; (5) being out of school; (6) being a streetchild; (7) being a member of a gang;

(8) living in a community with a high level of criminality or drug abuse; and (9) living in situations of armed conflict. (e) "Child in Conflict with the Law" refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws. (f) "Community-based Programs" refers to the programs provided in a community setting developed for purposes of intervention and diversion, as well as rehabilitation of the child in conflict with the law, for reintegration into his/her family and/or community. (g) "Court" refers to a family court or, in places where there are no family courts, any regional trial court. (h) "Deprivation of Liberty" refers to any form of detention or imprisonment, or to the placement of a child in conflict with the law in a public or private custodial setting, from which the child in conflict with the law is not permitted to leave at will by order of any judicial or administrative authority. (i) "Diversion" refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings.

(j) "Diversion Program" refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings. (k) "Initial Contact With-the Child" refers to the apprehension or taking into custody of a child in conflict with the law by law enforcement officers or private citizens. It includes the time when the child alleged to be in conflict with the law receives a subpoena under Section 3(b) of Rule 112 of the Revised Rules of Criminal Procedure or summons under Section 6(a) or Section 9(b) of the same Rule in cases that do not require preliminary investigation or where there is no necessity to place the child alleged to be in conflict with the law under immediate custody. (I) "Intervention" refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being. (m) "Juvenile Justice and Welfare System" refers to a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, re-integration and aftercare to ensure their normal growth and development. (n) "Law Enforcement Officer" refers to the person in authority or his/her

agent as defined in Article 152 of the Revised Penal Code, including a barangay tanod. (0) "Offense" refers to any act or omission whether punishable under special laws or the Revised Penal Code, as amended. (p) "Recognizance" refers to an undertaking in lieu of a bond assumed by a parent or custodian who shall be responsible for the appearance in court of the child in conflict with the law, when required. (q) "Restorative Justice" refers to a principle which requires a process of resolving conflicts with the maximum involvement of the victim, the offender and the community. It seeks to obtain reparation for the victim; reconciliation of the offender, the offended and the community; and reassurance to the offender that he/she can be reintegrated into society. It also enhances public safety by activating the offender, the victim and the community in prevention strategies. (r) "Status Offenses" refers to offenses which discriminate only against a child, while an adult does not suffer any penalty for committing similar acts. These shall include curfew violations; truancy, parental disobedience and the like. (s) "Youth Detention Home" refers to a 24-hour child-caring institution managed by accredited local government units (LGUs) and licensed and/or accredited nongovernment organizations (NGOs) providing short-term residential care for children in conflict with the law who are awaiting court disposition of their

cases or transfer to other agencies or jurisdiction. (t) "Youth Rehabilitation Center" refers to a 24-hour residential care facility managed by the Department of Social Welfare and Development (DSWD), LGUs, licensed and/or accredited NGOs monitored by the DSWD, which provides care, treatment and rehabilitation services for children in conflict with the law. Rehabilitation services are provided under the guidance of a trained staff where residents are cared for under a structured therapeutic environment with the end view of reintegrating them into their families and communities as socially functioning individuals. Physical mobility of residents of said centers may be restricted pending court disposition of the charges against them. (u) "Victimless Crimes" refers to offenses where there is no private offended party. CHAPTER 2 PRINCIPLES IN THE ADMINISTRATION OF JUVENILE JUSTICE AND WELFARE SEC. 5. Rights of the Child in Conflict with the Law. - Every child in conflict with the law shall have the following rights, including but not limited to: (a) the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; (b) the right not to be imposed a sentence of capital punishment or life imprisonment, without the possibility of release;

(c) the right not to be deprived, unlawfully or arbitrarily, of his/her liberty; detention or imprisonment being a disposition of last resort, and which shall be for the shortest appropriate period of time; (d) the right to be treated with humanity and respect, for the inherent dignity of the person, and in a manner which takes into account the needs of a person of his/her age. In particular, a child deprived of liberty shall be separated from adult offenders at all times. No child shall be detained together with adult offenders. He/She shall be conveyed separately to or from court. He/She shall await hearing of his/her own case in a separate holding area. A child in conflict with the law shall have the right to maintain contact with his/her family through correspondence and visits, save in exceptional circumstances; (e) the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his/her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on such action; (f) the right to bail and recognizance, in appropriate cases; (g) the right to testify as a witness in hid/her own behalf under the rule on examination of a child witness; (h) the right to have his/her privacy respected fully at all stages of the proceedings;

(i) the right to diversion if he/she is qualified and voluntarily avails of the same; (j) the right to be imposed a judgment in proportion to the gravity of the offense where his/her best interest, the rights of the victim and the needs of society are all taken into consideration by the court, under the principle of restorative justice; (k) the right to have restrictions on his/her personal liberty limited to the minimum, and where discretion is given by law to the judge to determine whether to impose fine or imprisonment, the imposition of fine being preferred as the more appropriate penalty; (I) in general, the right to automatic suspension of sentence; (m) the right to probation as an alternative to imprisonment, if qualified under the Probation Law; (n) the right to be free from liability for perjury, concealment or misrepresentation; and (o) other rights as provided for under existing laws, rules and regulations. The State further adopts the provisions of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice or "Beijing Rules", United Nations Guidelines for the Prevention of Juvenile Delinquency or the "Riyadh Guidelines", and the United Nations Rules for the Protection of Juveniles Deprived of Liberty.

SEC. 6. Minimum Age of Criminal Responsibility. - A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. SEC. 7. Determination ofAge. - The child in conflict with the law shall enjoy the presumption of minority. He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be eighteen (18) years old or older. The age of a child may be determined from the child's birth certificate, baptismal certificate or any other pertinent documents. In the absence of these documents, age may be based on information from the child himself/herself, testimonies of other persons, the physical appearance of the child and other relevant evidence. In case of doubt as to the age of the child, it shall be resolved in his/her favor. Any person contesting the age of the child in conflict with the law prior to the filing of the information in any

appropriate court may file a case in a summary proceeding for the determination of age before the Family Court which shall decide the case within twenty-four (24) hours from receipt of the appropriate pleadings of all interested parties. If a case has been fiied against the child in conflict with the law and is pending in the appropriate court, the person shall file a motion to determine the age of the child in the same court where the case is pending. Pending hearing on the said motion, proceedings on the main case shall be suspended. In all proceedings, law enforcement officers, prosecutors, judges and other government officials concerned shall exert all efforts at determining the age of the child in conflict with the law. TITLE II STRUCTURES IN THE ADMINISTRATION OF JUVENILE JUSTICE AND WELFARE SEC. 8. Juvenile Justice and Welfare Council (JJWC). - A Juvenile Justice and Welfare Council (JJWC) is hereby created and attached to the Department of Justice and placed under its administrative supervision. The JJWC shall be chaired by an undersecretary of the Department of Social Welfare and Development. It shall ensure the effective implementation of this Act and coordination among the following agencies: (a) Council for the Welfare of Children (CWC);

(b) Department of Education (DepEd); (c) Department of the Interior and Local Government (DILG); (d) Public Attorney's Office (PAO); (e) Bureau of Corrections (BUCOR); (f) Parole and Probation Administration (PPA) (g) National Bureau of Investigation (NBI); (h) Philippine National Police (PNP);. (i) Bureau of Jail Management and Penology (BJMP); (i) Commission on Human Rights (CHR); (k) Technical Education and Skills Development Authority (TESDA); (l) National Youth Commission (NYC); and (m) Other institutions focused on juvenile justice and intervention programs. The JJWC shall be composed of representatives, whose ranks shall not be lower than director, to be designated by the concerned heads of the following departments or agencies: (a) Department of Justice (DOJ); (b) Department of Social Welfare and Development (DSWD); (c) Council for the Welfare of Children (CWC)

(d) Department of Education (DepEd); (e) Department of the Interior and Local Government (DILG) (f) Commission on Human Rights (CHR); (g) National Youth Commission (NYC); and (h) Two (2) representatives from NGOs, one to be designated by the Secretary of Justice and the other to be designated by the Secretary of Social Welfare and Development. The JJWC shall convene within fifteen (15) days from the effectivity of this Act. The Secretary of Justice and the Secretary of Social Welfare and Development shall determine the organizational structure and staffing pattern of the JJWC. The JJWC shall coordinate with the Office of the Court Administrator and the Philippine Judicial Academy to ensure the realization of its mandate and the proper discharge of its duties and functions, as herein provided. SEC. 9. Duties and Functions of the JJWC. - The JJWC shall have the following duties and functions: (a) To oversee the implementation of this Act; (b) To advise the President on all matters and policies relating to juvenile justice and welfare; (c) To assist the concerned agencies in the review and redrafting of existing policies/regulations or in

the formulation of new ones in line with the provisions of this Act; (d) To periodically develop a comprehensive 3 to 5-year national juvenile intervention program, with the participation of government agencies concerned, NGOs and youth organizations; (e) To coordinate the implementation of the juvenile intervention programs and activities by national government agencies and other activities which may have an important bearing on the success of the entire national juvenile intervention program. All programs relating to juvenile justice and welfare shall be adopted in consultation with the JJWC; (f) To formulate and recommend policies and strategies in consultation with children for the prevention of juvenile delinquency and the administration of justice, as well as for the treatment and rehabilitation of the children in conflict with the law; (g) To collect relevant information and conduct continuing research and support evaluations and studies on all matters relating to juvenile justice and welfare, such as but not limited to: (1) the performance and results achieved by juvenile intervention programs and by activities of the local government units and other government agencies; (2) the periodic trends, problems and causes of juvenile delinquency and crimes; and

(3) the particular needs of children in conflict with the law in custody. The data gathered shall be used by the JJWC in the improvement of the administration of juvenile justice and welfare system. The JJWC shall set up a mechanism to ensure that children are involved in research and policy development. (h) Through duly designated persons and with the assistance of the agencies provided in the preceding section, to conduct regular inspections in detention and rehabilitation facilities and to undertake spot inspections on their own initiative in order to check compliance with the standards provided herein and to make the necessary recommendations to appropriate agencies; (i) To initiate and coordinate the conduct of trainings for the personnel of the agencies involved in the administration of the juvenile justice and welfare system and the juvenile intervention program; (j) To submit an annual report to the President on the implementation of this Act; and (k) To perform such other functions as may be necessary to implement the provisions of this Act. SEC. 10. Policies and Procedures on Juvenile Justice and Welfare. - All government agencies enumerated in Section 8 shall, with the assistance of the JJWC and within one (1) year from the effectivity of this Act, draft policies and procedures consistent with the standards set in the law. These policies and procedures shall

be modified accordingly in consultation with the JJWC upon the completion of the national juvenile intervention program as provided under Section 9 (d). SEC. 11. Child Rights Center (CRC). The existing Child Rights Center of the Commission on Human Rights shall ensure that the status, rights and interests of children are upheld in accordance with the Constitution and international instruments on human rights. The CHR shall strengthen the monitoring of government compliance of all treaty obligations, including the timely and regular submission of reports before the treaty bodies, as well as the implementation and dissemination of recommendations and conclusions by government agencies as well as NGOs and civil society. TITLE III PREVENTION OF JUVENILE DELINQUENCY CHAPTER 1 THE ROLE OF THE DIFFERENT SECTORS SEC. 12. The Family. - The family shall be responsible for the primary nurturing and rearing of children which is critical in delinquency prevention. As far as practicable and in accordance with the procedures of this Act, a child in conflict with the law shall be maintained in his/her family. SEC. 13. The Educational System. Educational institutions shall work together with families, community organizations and agencies in the prevention of juvenile delinquency and in the rehabilitation and

reintegration of child in conflict with the law. Schools shall provide adequate, necessary and individualized educational schemes for children manifesting difficult behavior and children in conflict with the law. In cases where children in conflict with the law are taken into custody or detained in rehabilitation centers, they should be provided the opportunity to continue learning under an alternative learning system with basic literacy program or nonformal education accreditation equivalency system. SEC. 14. The Role of the Mass Media. - The mass media shall play an active role in the promotion of child rights, and delinquency prevention by relaying consistent messages through a balanced approach. Media practitioners shall, therefore, have the duty to maintain the highest critical and professional standards in reporting and covering cases of children in conflict with the law. In all publicity concerning children, the best interest of the child should be the primordial and paramount concern. Any undue, inappropriate and sensationalized publicity of any case involving a child in conflict with the law is hereby declared a violation of the child's rights. SEC. 15. Establishment and Strengthening of Local Councils for the Protection of Children. - Local Councils for the Protection of Children (LCPC) shall be established in all levels of local government, and where they have already been established, they shall be strengthened within one (1) year from the effectivity of this Act. Membership in the LCPC shall be chosen from among the responsible

members of the community, including a representative from the youth sector, as well as representatives from government and private agencies concerned with the welfare of children. The local council shall serve as the primary agency to coordinate with and assist the LGU concerned for the adoption of a comprehensive plan on delinquency prevention, and to oversee its proper implementation. One percent (1%) of the internal revenue allotment of barangays, municipalities and cities shall be allocated for the strengthening and implementation of the programs of the LCPC: Provided, That the disbursement of the fund shall be made by the LGU concerned. SEC. 16. Appointment of Local Social Welfare and Development Officer. All LGUs shall appoint a duly licensed social worker as its local social welfare and development officer tasked to assist children in conflict with the law. SEC. 17. The Sangguniang Kabataan. - The Sangguniang Kabataan (SK) shall coordinate with the LCPC in the formulation and implementation of juvenile intervention and diversion programs in the community. CHAPTER 2 COMPREHENSIVE JUVENILE INTERVENTION PROGRAM SEC. 18. Development of a Comprehensive Juvenile Intervention Program. - A Comprehensive juvenile intervention program covering at least a 3-year period shall be

instituted in LGUs from the barangay to the provincial level. The LGUs shall set aside an amount necessary to implement their respective juvenile intervention programs in their annual budget. The LGUs, in coordination with the LCPC, shall call on all sectors concerned, particularly the childfocused institutions, NGOs, people's organizations, educational institutions and government agencies involved in delinquency prevention to participate in the planning process and implementation of juvenile intervention programs. Such programs shall be implemented consistent with the national program formulated and designed by the JJWC. The implementation of the comprehensive juvenile intervention program shall be reviewed and assessed annually by the LGUs in coordination with the LCPC. Results of the assessment shall be submitted by the provincial and city governments to the JJWC not later than March 30 of every year. SEC. 19. Community-based Programs on Juvenile Justice and Welfare. Community-based programs on juvenile justice and welfare shall be instituted by the LGUs through the LCPC, school, youth organizations and other concerned agencies. The LGUs shall provide communitybased services which respond to the special needs, problems, interests and concerns of children and which offer appropriate counseling and guidance to them and their families. These programs shall consist of three levels:

(a) Primary intervention includes general measures to promote social justice and equal opportunity, which tackle perceived root causes of offending; (b) Secondary intervention includes measures to assist children at risk; and (c) Tertiary intervention includes measures to avoid unnecessary contact with the formal justice system and other measures to prevent re-offending. TITLE IV TREATMENT OF CHILDREN BELOW THE AGE OF CRIMINAL RESPONSIBILITY SEC. 20. Children Below the Age of Criminal Responsibility. - If it has been determined that the child taken into custody is fifteen (15) years old or below, the authority which will have an initial contact with the child has the duty to immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child's nearest relative. Said authority shall give notice to the local social welfare and development officer who will determine the appropriate programs in consultation with the child and to the person having custody over the child. If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following: a duly registered nongovernmental or religious organization; a barangay official or a member of the Barangay Council for the Protection of Children (BCPC); a local social welfare and development officer; or when and where

appropriate, the DSWD. If the child referred to herein has been found by the Local Social Welfare and Development Office to be abandoned, neglected or abused by his parents, or in the event that the parents will not comply with the prevention program, the proper petition for involuntary commitment shall be filed by the DSWD or the Local Social Welfare and Development Office pursuant to Presidential Decree No. 603, otherwise ,known as "The Child and Youth Welfare Code". TITLE V JUVENILE JUSTICE AND WELFARE SYSTEM CHAPTER I INITIAL CONTACT WITH THE CHILD SEC. 21. Procedure for Taking the Child into Custody. - From the moment a child is taken into custody, the law enforcement officer shall: (a) Explain to the child in simple language and in a dialect that he/she can understand why he/she is being placed under custody and the offense that he/she allegedly committed; (b) Inform the child of the reason for such custody and advise the child of his/her constitutional rights in a language or dialect understood by him/her; (e) Properly identify himself/herself and present proper identification to the child; (d) Refrain from using vulgar or profane words and from sexually

harassing or abusing, or making sexual advances on the child in conflict with the law; (e) Avoid displaying or using any firearm, weapon, handcuffs or other instruments of force or restraint, unless absolutely necessary and only after all other methods of control have been exhausted and have failed; (f) Refrain from subjecting the child in conflict with the law to greater restraint than is necessary for his/her apprehension; (g) Avoid violence or unnecessary force; (h) Determine the age of the child pursuant to Section 7 of this Act; (i) Immediately but not later than eight (8) hours after apprehension, turn over custody of the child to the Social Welfare and Development Office or other accredited NGOs, and notify the child's apprehension. The social welfare and development officer shall explain to the child and the child's parents/guardians the consequences of the child's act with a view towards counseling and rehabilitation, diversion from the criminal justice system, and reparation, if appropriate; (j) Take the child immediately to the proper medical and health officer for a thorough physical and mental examination. The examination results shall be kept confidential unless otherwise ordered by the Family Court. Whenever the medical treatment is required, steps shall be immediately undertaken to provide the same;

(k) Ensure that should detention of the child in conflict with the law be necessary, the child shall be secured in quarters separate from that of the opposite sex and adult offenders; (l) Record the following in the initial investigation: 1. Whether handcuffs or other instruments of restraint were used, and if so, the reason for such; 2. That the parents or guardian of a child, the DSWD, and the PA0 have been informed of the apprehension and the details thereof; and 3. The exhaustion of measures to determine the age of a child and the precise details of the physical and medical examination or the failure to submit a child to such examination; and (m) Ensure that all statements signed by the child during investigation shall be witnessed by the child's parents or guardian, social worker, or legal counsel in attendance who shall affix his/her signature to the said statement. A child in conflict with the law shall only be searched by a law enforcement officer of the same gender and shall not be locked up in a detention cell. SEC. 22. Duties During Initial Investigation. - The law enforcement officer shall, in his/her investigation, determine where the case involving the child in conflict with the law should be referred. The taking of the statement of the child shall be conducted in the presence of the following: (1) child's

counsel of choice or in the absence thereof, a lawyer from the Public Attorney's Office; (2) the child's parents, guardian, or nearest relative, as the case may be; and (3) the local social welfare and development officer. In the absence of the child's parents, guardian, or nearest relative, and the local social welfare and development officer, the investigation shall be conducted in the presence of a representative of an NGO, religious group, or member of the BCPC. After the initial investigation, the local social worker conducting the same may do either of the following: (a) Proceed in accordance with Section 20 if the child is fifteen (15) years or below or above fifteen (15) but below eighteen (18) years old, who acted without discernment; and (b) If the child is above fifteen (15) years old but below eighteen (18) and who acted with discernment, proceed to diversion under the following chapter. CHAPTER 2 DIVERSION SEC. 23. System of Diversion. Children in conflict with the law shall undergo diversion programs without undergoing court proceedings subject to the conditions herein provided: (a) Where the imposable penalty for the crime committee is not more than six (6) years imprisonment, the law enforcement officer or Punong Barangay with the assistance of the local social welfare and development officer or other members of the LCPC shall conduct mediation, family

conferencing and conciliation and, where appropriate, adopt indigenous modes of conflict resolution in accordance with the best interest of the child with a view to accomplishing the objectives of restorative justice and the formulation of a diversion program. The child and his/her family shall be present in these activities. (b) In victimless crimes where the imposable penalty is not more than six (6) years imprisonment, the local social welfare and development officer shall meet with the child and his/her parents or guardians for the development of the appropriate diversion and rehabilitation program, in coordination with the BCPC; (c) Where the imposable penalty for the crime committed exceeds six (6) years imprisonment, diversion measures may be resorted to only by the court. SEC. 24. Stages Where Diversion May be Conducted. - Diversion may be conducted at the Katarungang Pambarangay, the police investigation or the inquest or preliminary investigation stage and at all 1evels and phases of the proceedings including judicial level. SEC. 25. Conferencing, Mediation and Conciliation. - A child in conflict with law may undergo conferencing, mediation or conciliation outside the criminal justice system or prior to his entry into said system. A contract of diversion may be entered into during such conferencing, mediation or conciliation proceedings. SEC. 26. Contract of Diversion. - If during the conferencing, mediation

or conciliation, the child voluntarily admits the commission of the act, a diversion program shall be developed when appropriate and desirable as determined under Section 30. Such admission shall not be used against the child in any subsequent judicial, quasi-judicial or administrative proceedings. The diversion program shall be effective and binding if accepted by the parties concerned. The acceptance shall be in writing and signed by the parties concerned and the appropriate authorities. The local social welfare and development officer shall supervise the implementation of the diversion program. The diversion proceedings shall be completed within forty-five (45) days. The period of prescription of the offense shall be suspended until the completion of the diversion proceedings but not to exceed fortyfive (45) days. The child shall present himself/herself to the competent authorities that imposed the diversion program at least once a month for reporting and evaluation of the effectiveness of the program. Failure to comply with the terms and conditions of the contract of diversion, as certified by the local social welfare and development officer, shall give the offended party the option to institute the appropriate legal action. The period of prescription of the offense shall be suspended during the effectivity of the diversion program, but not exceeding a period of two (2) years. SEC. 27. Duty of the Punong Barangay When There is No

Diversion. - If the offense does not fall under Section 23(a) and (b), or if the child, his/her parents or guardian does not consent to a diversion, the Punong Barangay handling the case shall, within three (3) days from determination of the absence of jurisdiction over the case or termination of the diversion proceedings, as the case may be, forward the records of the case of the child to the law enforcement officer, prosecutor or the appropriate court, as the case may be. Upon the issuance of the corresponding document, certifying to the fact that no agreement has been reached by the parties, the case shall be filed according to the regular process. SEC. 28. Duty of the Law Enforcement Officer When There is No Diversion. - If the offense does not fall under Section 23(a) and (b), or if the child, his/her parents or guardian does not consent to a diversion, the Women and Children Protection Desk of the PNP, or other law enforcement officer handling the case of the child under custody, to the prosecutor or judge concerned for the conduct of inquest and/or preliminary investigation to determine whether or not the child should remain under custody and correspondingly charged in court. The document transmitting said records shall display the word "CHILD" in bold letters. SEC. 29. Factors in Determining Diversion Program. - In determining whether diversion is appropriate and desirable, the following factors shall be taken into consideration: (a) The nature and circumstances of the offense charged;

(b) The frequency and the severity of the act; (c) The circumstances of the child (e.g. age, maturity, intelligence, etc.); (d) The influence of the family and environment on the growth of the child; (e) The reparation of injury to the victim; (f) The weight of the evidence against the child; (g) The safety of the community; and (h) The best interest of the child. SEC. 30. Formulation of the Diversion Program. - In formulating a diversion program, the individual characteristics and the peculiar circumstances of the child in conflict with the law shall be used to formulate an individualized treatment. The following factors shall be considered in formulating a diversion program for the child: (a) The child's feelings of remorse for the offense he/she committed; (b) The parents' or legal guardians' ability to guide and supervise the child; (c) The victim's view about the propriety of the measures to be imposed; and (d) The availability of communitybased programs for rehabilitation and reintegration of the child.

SEC. 31. Kinds of Diversion Programs. - The diversion program shall include adequate socio-cultural and psychological responses and services for the child. At the different stages where diversion may be resorted to, the following diversion programs may be agreed upon, such as, but not limited to: (a) At the level of the Punong Barangay: (1) Restitution of property; (2) Reparation of the damage caused; (3) Indemnification for consequential damages; (4) Written or oral apology; (5) Care, guidance and supervision orders; (6) Counseling for the child in conflict with the law and the child's family; (7)Attendance in trainings, seminars and lectures on: (i) anger management skills; (ii) problem solving and/or conflict resolution skills; (iii) values formation; and (iv) other skills which will aid the child in dealing with situations which can lead to repetition of the offense; (8) Participation in available community-based programs, including community service; or

(9) Participation in education, vocation and life skills programs. (b) At the level of the law enforcement officer and the prosecutor: (1) Diversion programs specified under paragraphs (a)(1) to (a)(9) herein; and (2) Confiscation and forfeiture of the proceeds or instruments of the crime; (c) At the level of the appropriate court: (1) Diversion programs specified under paragraphs(a)and (b) above; (2) Written or oral reprimand or citation; (3) Fine: (4) Payment of the cost of the proceedings; or (5) Institutional care and custody. CHAPTER 3 PROSECUTION SEC. 32. Duty of the Prosecutor's Office. - There shall be a specially trained prosecutor to conduct inquest, preliminary investigation and prosecution of cases involving a child in conflict with the law. If there is an allegation of torture or illtreatment of a child in conflict with the law during arrest or detention, it shall be the duty of the prosecutor to investigate the same. SEC. 33. Preliminary Investigation and Filing of Information. - The prosecutor shall conduct a

preliminary investigation in the following instances: (a) when the child in conflict with the law does not qualify for diversion: (b) when the child, his/her parents or guardian does not agree to diversion as specified in Sections 27 and 28; and (c) when considering the assessment and recommendation of the social worker, the prosecutor determines that diversion is not appropriate for the child in conflict with the law. Upon serving the subpoena and the affidavit of complaint, the prosecutor shall notify the Public Attorney's Office of such service, as well as the personal information, and place of detention of the child in conflict with the law. Upon determination of probable cause by the prosecutor, the information against the child shall be filed before the Family Court within forty-five (45) days from the start of the preliminary investigation. CHAPTER 4 COURT PROCEEDINGS SEC. 34. Bail. - For purposes of recommending the amount of bail, the privileged mitigating circumstance of minority shall be considered. SEC. 35. Release on Recognizance. Where a child is detained, the court shall order: (a) the release of the minor on recognizance to his/her parents and other suitable person; (b) the release of the child in conflict with the law on bail; or

(c) the transfer of the minor to a youth detention home/youth rehabilitation center. The court shall not order the detention of a child in a jail pending trial or hearing of his/her case. SEC. 36. Detention of the Child Pending Trial. - Children detained pending trial may be released on bail or recognizance as provided for under Sections 34 and 35 under this Act. In all other cases and whenever possible, detention pending trial may be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home. Institutionalization or detention of the child pending trial shall be used only as a measure of last resort and for the shortest possible period of time. Whenever detention is necessary, a child will always be detained in youth detention homes established by local governments, pursuant to Section 8 of the Family Courts Act, in the city or municipality where the child resides. In the absence of a youth detention home, the child in conflict with the law may be committed to the care of the DSWD or a local rehabilitation center recognized by the government in the province, city or municipality within the jurisdiction of the court. The center or agency concerned shall be responsible for the child's appearance in court whenever required. SEC. 37. Diversion Measures. Where the maximum penalty imposed by law for the offense with which the child in conflict with the

law is charged is imprisonment of not more than twelve (12) years, regardless of the fine or fine alone regardless of the amount, and before arraignment of the child in conflict with the law, the court shall determine whether or not diversion is appropriate. SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her guilt. Upon suspension of sentence and after considering the various chcumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict with the Law. SEC. 39. Discharge of the Child in Conflict with the Law. - Upon the recommendation of the social worker who has custody of the child, the court shall dismiss the case against the child whose sentence has been suspended and against whom disposition measures have been issued, and shall order the final discharge of the child if it finds that the objective of the disposition measures have been fulfilled.

The discharge of the child in conflict with the law shall not affect the civil liability resulting from the commission of the offense, which shall be enforced in accordance with law. SEC. 40. Return of the Child in Conflict with the Law to Court. - If the court finds that the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the conditions of his/her disposition or rehabilitation program, the child in conflict with the law shall be brought before the court for execution of judgment. If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child in accordance with this Act, to order execution of sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twentyone (21) years. SEC. 41. Credit in Service of Sentence. - The child in conflict with the law shall be credited in the services of his/her sentence with the full time spent in actual commitment and detention under this Act. SEC. 42. Probation as an Alternative to Imprisonment. - The court may, after it shall have convicted and sentenced a child in conflict with the law, and upon application at any time, place the child on probation in lieu of service of his/her sentence taking into account the best interest

of the child. For this purpose, Section 4 of Presidential Decree No. 968, otherwise known as the "Probation Law of 1976", is hereby amended accordingly. CHAPTER 5 CONFIDENTIALITY OF RECORDS AND PROCEEDINGS SEC. 43. Confedentiality of Records and Proceedings. - All records and proceedings involving children in conflict with the law from initial contact until final disposition of the case shall be considered privileged and confidential. The public shall be excluded during the proceedings and the records shall not be disclosed directly or indirectly to anyone by any of the parties or the participants in the proceedings for any purpose whatsoever, except to determine if the child in conflict with the law may have his/hes sentence suspended or if he/she may be granted probation under the Probation Law, or to enforce the civil liability imposed in the criminal action. The component authorities shall undertake all measures to protect this confidentiality of proceedings, including non-disclosure of records to the media, maintaining a separate police blotter for cases involving children in conflict with the law and adopting a system of coding to conceal material information which will lead to the child's identity. Records of a child in conflict with the law shall not be used in subsequent proceedings for cases involving the same offender as an adult, except when beneficial for the offender and upon his/her written consent. A person who has been in conflict with the law as a child shall not be

held under any provision of law, to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him/her for any purpose. TITLE VI REHABILITATION AND REINTEGRATION SEC. 44. Objective of Rehabilitation and Reintegration. - The objective of rehabilitation and reintegration of children in conflict with the law is to provide them with interventions, approaches and strategies that will enable them to improve their social functioning with the end goal of reintegration to their families and as productive members of their communities. SEC. 45. Court Order Required. - No child shall be received in any rehabilitation or training facility without a valid order issued by the court after a hearing for the purpose. The details of this order shall be immediately entered in a register exclusively for children in conflict with the law. No child shall be admitted in any facility where there is no such register. SEC. 46, Separate Facilities from Adults. - In all rehabilitation or training facilities, it shall be mandatory that children shall be separated from adults unless they are members of the same family. Under no other circumstance shall a child in conflict with the law be placed in the same confinement as adults.

The rehabilitation, training or confinement area of children in conflict with the law shall provide a home environment where children in conflict with the law can be provided with quality counseling and treatment. SEC. 47. Female Children. - Female children in conflict with the law placed in an institution shall be given special attention as to their personal needs and problems. They shall be handled by female doctors, correction officers and social workers, and shall be accommodated separately from male children in conflict with the law. SEC. 48. Gender-Sensitivity Training. - No personnel of rehabilitation and training facilities shall handle children in conflict with the law without having undergone gender sensitivity training. SEC. 49. Establishment of Youth Detention Homes. - The LGUs shall set aside an amount to build youth detention homes as mandated by the Family Courts Act. Youth detention homes may also be established by private and NGOs licensed and accredited by the DSWD, in consultation with the JJWC. SEC. 50. Care and Maintenance of the Child in Conflict with the Law. - The expenses for the care and maintenance of a child in conflict with the law under institutional care shall be borne by his/her parents or those persons liable to support him/her: Provided, That in case his/her parents or those persons liable to support him/her cannot pay all or part of said expenses, the municipality where the offense was committed shall pay one-third (1/3)

of said expenses or part thereof; the province to which the municipality belongs shall pay one-third (1/3) and the remaining one-third (1/3) shall be borne by the national government. Chartered cities shall pay two-thirds (2/3) of said expenses; and in case a chartered city cannot pay said expenses, part of the internal revenue allotments applicable to the unpaid portion shall be withheld and applied to the settlement of said obligations: Provided, further, That in the event that the child in conflict with the law is not a resident of the municipality/city where the offense was committed, the court, upon its determination, may require the city/municipality where the child in conflict with the law resides to shoulder the cost. All city and provincial governments must exert effort for the immediate establishment of local detention homes for children in conflict with the law. SEC. 51. Confinement of Convicted Children in Agricultural Camps and other Training Facilities. - A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD. SEC. 52. Rehabilitation of Children in Conflict with the Law. - Children in conflict with the law, whose sentences are suspended may, upon order of the court, undergo any or a

combination of disposition measures best suited to the rehabilitation and welfare of the child as provided in the Supreme Court Rule on Juveniles in Conflict with the Law. If the community-based rehabilitation is availed of by a child in conflict with the law, he/she shall be released to parents, guardians, relatives or any other responsible person in the community. Under the supervision and guidance of the local social welfare and development officer, and in coordination with his/her parents/guardian, the child in conflict with the law shall participate in community-based programs, which shall include, but not limited to: (1) Competency and life skills development; (2) Socio-cultural and recreational activities; (3) Community volunteer projects; (4) Leadership training; (5) Social services; (6) Homelife services; (7) Health services; . (8) Spiritual enrichment; and (9) Community and family welfare services. In accordance therewith, the family of the child in conflict with the law shall endeavor to actively participate in the community-based rehabilitation.

Based on the progress of the youth in the community, a final report will be forwarded by the local social welfare and development officer to the court for final disposition of the case. If the community-based programs are provided as diversion measures under Chapter II, Title V, the programs enumerated above shall be made available to the child in conflict with the law. SEC. 53. Youth Rehabilitation Center. - The youth rehabilitation center shall provide 24-hour group care, treatment and rehabilitation services under the guidance of a trained staff where residents are cared for under a structured therapeutic environment with the end view of reintegrating them in their families and communities as socially functioning individuals. A quarterly report shall be submitted by the center to the proper court on the progress of the children in conflict with the law. Based on the progress of the youth in the center, a final report will be forwarded to the court for final disposition of the case. The DSWD shall establish youth rehabilitation centers in each region of the country. SEC. 54. Objectives of Community Based Programs. - The objectives of community-based programs are as follows: (a) Prevent disruption in the education or means of livelihood of the child in conflict with the law in case he/she is studying, working or attending vocational learning institutions;

(b) Prevent separation of the child in conflict with the law from his/her parents/guardians to maintain the support system fostered by their relationship and to create greater awareness of their mutual and reciprocal responsibilities; (c) Facilitate the rehabilitation and mainstreaming of the child in conflict with the law and encourage community support and involvement; and (d) Minimize the stigma that attaches to the child in conflict with the law by preventing jail detention. SEC. 55. Criteria of CommunityBased Programs. - Every LGU shall establish community-based programs that will focus on the rehabilitation and reintegration of the child. All programs shall meet the criteria to be established by the JJWC which shall take into account the purpose of the program, the need for the consent of the child and his/her parents or legal guardians, and the participation of the childcentered agencies whether public or private. SEC. 56. After-Care Support Services for Children in Conflict with the Law. - Children in conflict with the law whose cases have been dismissed by the proper court because of good behavior as per recommendation of the DSWD social worker and/or any accredited NGO youth rehabilitation center shall be provided after-care services by the local social welfare and development officer for a period of at least six (6) months. The service includes counseling and other community-based services designed to facilitate social reintegration, prevent re-offending

and make the children productive members of the community. TITLE VII GENERAL PROVISIONS CHAPTER 1 EXEMPTING PROVISIONS SEC. 57. Status Offenees. - Any conduct not considered an offense or not penalized if committed by an adult shall not be considered an offense and shall not be punished if committed by a child. SEC. 58. Offenses Not Applicable to Children. - Persons below eighteen (18) years of age shall be exempt from prosecution for the crime of vagrancy and prostitution under Section 202 of the Revised Penal Code, of mendicancy under Presidential Decree No. 1563, and sniffing of rugby under Presidential Decree No. 1619, such prosecution being inconsistent with the United Nations Convention on the Rights of the Child: Provided, That said persons shall undergo appropriate counseling and treatment program. SEC. 59. Exemption from the Application of Death Penalty. - The provisions of the Revised Penal Code, as amended, Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and other special laws notwithstanding, no death penalty shall be imposed upon children in conflict with the law. CHAPTER 2 PROHIBITED ACTS SEC. 60. Prohibition Against Labeling and Shaming. - In the conduct of the

proceedings beginning from the initial contact with the child, the competent authorities must refrain from branding or labeling children as young criminals, juvenile delinquents, prostitutes or attaching to them in any manner any other derogatory names. Likewise, no discriminatory remarks and practices shall be allowed particularly with respect to the child's class or ethnic origin. SEC. 61. Other Prohibited Acts. - The following and any other similar acts shall be considered prejudicial and detrimental to the psychological, emotional, social, spiritual, moral and physical health and well-being of the child in conflict with the law and therefore, prohibited: (a) Employment of threats of whatever kind and nature; (b) Employment of abusive, coercive and punitive measures such as cursing, beating, stripping, and solitary confinement; (c) Employment of degrading, inhuman end cruel forms of punishment such as shaving the heads, pouring irritating, corrosive or harmful substances over the body of the child in conflict with the law, or forcing him/her to walk around the community wearing signs which embarrass, humiliate, and degrade his/her personality and dignity; and (d) Compelling the child to perform involuntary servitude in any and all forms under any and all instances. CHAPTER 3 PENAL PROVISION

SEC. 62. Violation of the Provisions of this Act or Rules or Regulations in General. - Any person who violates any provision of this Act or any rule or regulation promulgated in accordance thereof shall, upon conviction for each act or omission, be punished by a fine of not less than Twenty thousand pesos (P20,000.00) but not more than Fifty thousand pesos (P50,000.00) or suffer imprisonment of not less than eight (8) years but not more than ten (10) years, or both such fine and imprisonment at the discretion of the court, unless a higher penalty is provided for in the Revised Penal Code or special laws. If the offender is a public officer or employee, he/she shall, in addition to such fine and/or imprisonment, be held administratively liable and shall suffer the penalty of perpetual absolute disqualification. CHAPTER 4 APPROPRIATION PROVISION SEC. 63. Appropriations. - The amount necessary to carry out the initial implementation of this Act shall be charged to the Office of the President. Thereafter, such sums as may be necessary for the continued implementation of this Act shall be included in the succeeding General Appropriations Act. An initial amount of Fifty million pesos (P50,000,000.00) for the purpose of setting up the JJWC shall be taken from the proceeds of the Philippine Charity Sweepstakes Office. TITLE VIII TRANSITORY PROVISIONS

SEC. 64. Children in Conflict with the Law Fifteen (15) Years Old and Below. - Upon effectivity of this Act, cases of children fifteen (15) years old and below at the time of the commission of the crime shall immediately be dismissed and the child shall be referred to the appropriate local social welfare and development officer. Such officer, upon thorough assessment of the child, shall determine whether to release the child to the custody of his/her parents, or refer the child to prevention programs as provided under this Act. Those with suspended sentences and undergoing rehabilitation at the youth rehabilitation center shall likewise be released, unless it is contrary to the best interest of the child. SEC. 65. Children Detained Pending Dial. - If the child is detained pending trial, the Family Court shall also determine whether or not continued detention is necessary and, if not, determine appropriate alternatives for detention. If detention is necessary and he/she is detained with adults, the court shall immediately order the transfer of the child to a youth detention home. SEC. 66. Inventory of "Locked-up" and Detained Children in Conflict with the Law. - The PNP, the BJMP and the BUCOR are hereby directed to submit to the JJWC, within ninety (90) days from the effectivity of this Act, an inventory of all children in conflict with the law under their custody. SEC. 67. Children Who Reach the Age of Eighteen (18) Years Pending

Diversion and Court Proceedings. - If a child reaches the age of eighteen (18) years pending diversion and court proceedings, the appropriate diversion authority in consultation with the local social welfare and development officer or the Family Court in consultation with the Social Services and Counseling Division (SSCD) of the Supreme Court, as the case may be, shall determine the appropriate disposition. In case the appropriate court executes the judgment of conviction, and unless the child in conflict the law has already availed of probation under Presidential Decree No. 603 or other similar laws, the child may apply for probation if qualified under the provisions of the Probation Law. SEC. 68. Children Who Have Been Convicted and are Serving Sentence. - Persons who have been convicted and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18) years at the time the commission of the offense for which they were convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act. They shall be entitled to appropriate dispositions provided under this Act and their sentences shall be adjusted accordingly. They shall be immediately released if they are so qualified under this Act or other applicable law. TITLE IX FINAL PROVISIONS SEC. 69. Rule Making Power. - The JJWC shall issue the IRRs for the implementation of the provisions of this act within ninety (90) days from the effectivity thereof.

SEC. 70. Separability Clause. - If, for any reason, any section or provision of this Act is declared unconstitutional or invalid by the Supreme Court, the other sections or provisions hereof not dfected by such declaration shall remain in force and effect. SEC. 71. Repealing Clause. - All existing laws, orders, decrees, rules and regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly. SEC. 72. Effectivity. - This Act shall take effect after fifteen (15) days from its publication in at least two (2) national newspapers of general circulation.

EN BANC ARISTOTEL VALENZUELA y G. R. No. 160188 NATIVIDAD, Petitioner, Present: PUNO, C.J., QUISUMBING, SANTIAGO, versus GUTIERREZ, CARPIO, MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, VELASCO, and PEOPLE OF THE PHILIPPINES NACHURA, JJ. and HON. COURT OF APPEALS, Respondents. Promulgated:

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.

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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]

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

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)

positive identification of the accused as perpetrators of the crime. 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 prosecutor s office where he was charged with theft.[14] During petitioner s 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 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 Calderon s 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 petitioner s conviction.[22] Hence the present Petition for Review,[23] which expressly seeks that petitioner s 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 setup 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 latter s 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]

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]

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

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 latter s 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 pocketbook 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 [accused s] 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:

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 Viada s 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

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

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 Court s 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

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.

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.

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: Son reos de hurto: 1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su dueo. 2. Los que encontrndose una cosa perdida y sabiendo quin es su

dueo se la apropriaren co intencin de lucro. 3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo los casos previstos en los art culos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617 y 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 [e]l que, con nimo de lucro, tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado [82] Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, la libre disposicion of the property is not an element or a statutory characteristic of the crime. It does appear that the principle originated and perhaps was fostered in the realm of Spanish 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 decision s 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. Hay frustracin cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de harino del carro que los conducia a otro que tenan preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la intervencin de la policia situada en el local donde se realiz la sustraccin que impidi pudieran los reos disponer de lo sustrado, 30 de octubre 1950. Hay "por lo menos" frustracin, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay frustracin "muy prxima" cuando el culpable es detenido por el perjudicado acto seguido de cometer la sustraccin, 28 febrero 1931. Algunos fallos han considerado la existencia de frustracin cuando, perseguido el

culpable o sorprendido en el momento de llevar los efectos hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, stos, conforme a lo antes expuesto, son hurtos consumados.[86] Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually possible: La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda de hecho a la disposicin del agente. Con este criterio coincide la doctrina sentada ltimamente porla jurisprudencia espaola que generalmente considera consumado el hurto cuando el culpable coge o aprehende la cosa y sta quede por tiempo ms o menos duradero bajo su poder. El hecho de que ste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carcter de consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe la frustracin, pues es muy dificil que el que hace cuanto es necesario para la consumacin del hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante, declara hurtos frustrados son verdaderos delitos consumados.[87] (Emphasis supplied) Cuello Caln s 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 Caln s 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 latter s 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 Aquino s 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 one s 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?

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

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

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. SO ORDERED.

SECOND DIVISION RAMIE VALENZUELA, Petitioner,

versus -

Petitioner Ramie Valenzuela (petitioner) seeks, in this petition for review on certiorari,[1] to reverse the Court of Appeals (CA) decision and resolution dated June 18, 2001 and September 10, 2001, respectively, in CA-G.R. CR No. 20533, that affirmed with modification the decision of the Regional Trial Court (RTC), Branch 38, Lingayen, Pangasinan, dated November 21, 1996, convicting the petitioner with the crime of attempted murder. Petitioner and his brother, Hermie Valenzuela (Hermie), were charged with the crime of frustrated murder, allegedly committed as follows: That on or about the 20th day of February 1996, in the evening, in Barangay Maniboc, municipality of Lingayen, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a sharp pointed, bladed instrument, with intent to kill, taking advantage of their superior strength, conspiring, confederating and mutually helping one another, did then and there willfully, unlawfully and feloniously attack, assault and stab Gregorio P. Cruz, inflicting upon him the following: Stab wound 1 cm flank area left, 3 cm. depth Stap wound 1 cm flank area left, 3 cm. depth

PEOPLE OF THE PHILIPPINES, Respondent. G.R. No. 149988 Present: *CARPIO-MORALES, J., Acting Chairperson, **CARPIO, ***CHICO-NAZARIO, ****LEONARDO-DE CASTRO, and BRION, JJ.

Promulgated: August 14, 2009 x -----------------------------------------------------------------------------------------x

DECISION the accused having thus performed 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 causes independent of the will of the

BRION, J.:

accused, that is, the timely medical assistance afforded to Gregorio P. Cruz which prevented his death, to his damage and prejudice.[2] We summarized below the facts based on the records before us. Petitioner and the victim, Gregorio P. Cruz (Gregorio), both lived in Barangay Maniboc, Lingayen, Pangasinan. In the early evening of February 20, 1996, Gregorio and his companion, Rogelio Bernal (Rogelio), went to the house of Barangay Captain Aurora dela Cruz to talk with Pepito, the latter's husband. While at the dela Cruz home, Gregorio, Rogelio and Pepito drank liquor (Fundador). Based on the prosecution s account of the events, at around 10:00 o clock of that same evening, Gregorio and Rogelio left the dela Cruz residence and headed for home after their drinking spree with Pepito dela Cruz. While they were walking along the barangay road and were near the Valenzuelas residence/sari-sari store, the petitioner and his brother Hermie suddenly appeared from behind them. The petitioner held the shoulders of Gregorio while Hermie stabbed Gregorio twice at the left side of his back. Immediately thereafter, Hermie ran to the direction of the Valenzuelas house some 10 meters away. After the stabbing, Gregorio was brought to the clinic of one Dr. Casipit who administered emergency treatment on the stab wounds. He was transferred the following day to the Pangasinan Provincial Hospital (now Gov. Teofilo Sison Memorial Hospital) for

further treatment. Per the medical findings of Dr. Antonio Rivera (Dr. Rivera), attending physician and Medical Officer III of the said hospital, Gregorio suffered the following wounds: Stab wound 1 cm flank area left, 3 cm depth; Stab wound 1 cm flank area left, 3 cm depth. The wounds were found not to be fatal, as no vital organ was affected. Gregorio was discharged after one week of confinement. On March 13, 1996, SPO II Jimmy B. Melchor of the Lingayen Police Station filed before the Municipal Trial Court of Lingayen, Pangasinan a criminal complaint for frustrated murder against the petitioner and Hermie. Finding probable cause, the court issued a warrant for their arrest and forwarded the records of the case to the Office of the Provincial Prosecutor of Pangasinan for the filing of the appropriate Information.[3] On May 16, 1996, an Information was filed before the RTC of Lingayen, Pangasinan, charging the two accused with frustrated murder. Trial of the case proceeded solely with respect to the petitioner as his brother and co-accused, Hermie, was then, and still is, at large. The prosecution presented Dr. Rivera of the Pangasinan Provincial Hospital who explained his medical findings on the injuries Gregorio sustained. He said that the 2 onecentimeter long wounds, both threecentimeter deep, were not fatal as no vital organ was affected.

The prosecution likewise presented Rogelio who declared that on the night of February 20, 1996, he accompanied Gregorio to the house of their Barangay Captain to talk to the latter's husband, Pepito dela Cruz; they drank as they talked with Pepito. As they headed for home while passing by the Valenzuelas house/sari-sari store, the petitioner suddenly appeared from behind and held Gregorio, while Hermie stabbed the victim. Rogelio was able to positively identify the petitioner and Hermie as Gregorio's assailants, as the scene of the crime was welllighted, illuminated by a streetlight from a nearby electric post. After the stabbing, the two assailants ran towards their house, and Rogelio took Gregorio initially to the house of Barangay Captain dela Cruz, and then to the clinic of a certain Dr. Casipit for emergency treatment. Thereafter, he took Gregorio to the Pangasinan Provincial Hospital in Dagupan City because the wounds appeared to be serious. Rogelio claimed that Hermie used an 8-inch long knife. The victim, Gregorio, likewise testified for the prosecution. He declared that he was the Chief Barangay Tanod of their place and that he knew the two accused because they were residents of his barangay. The rest of his testimony was similar to Rogelio s. The petitioner, after pleading not guilty to the charge, presented his defenses of denial and alibi. He claimed that on the night of February 20, 1996, he was at home together with his uncle, his sister, his sister s friend, and his parents.

Earlier that night, he claimed that he read the Bible, ate dinner with his family and guests, then watched television. At around 10:00 o clock that evening, they heard somebody shouting from the outside; his parents, however, prevented him from going out of the house for fear that he might get into trouble. The petitioner claimed he was being implicated in the stabbing incident because he had a previous altercation with the victim, Gregorio, when the latter apprehended his other brother, Rommel Valenzuela. He further surmised that Gregorio could have mistaken him for his brother, Willy, with whom he shares physical similarities and who, he claimed, was one of the assailants in the stabbing incident. Witnesses Nestor Cerezo (Nestor) and Rhodora Manzano (Rhodora) supported the petitioner s defense of alibi. Nestor testified that he is a businessman and a resident of Dagupan City. He claimed that the petitioner is his nephew, as the petitioner s maternal aunt, Josefina Campos, is his common-law partner. He stated that on February 20, 1996, he went to the Valenzuelas house to collect payment on a debt owed him by the parents of the accused. Since he arrived after dark, the parents of the accused prevailed on him to dine and spend the night with them. At about 10:00 o clock that night, while he was talking with the petitioner and the latter's father (Rosauro), they heard a commotion outside the house. He and Rosauro went out and saw several persons talking. They learned from their inquiry that Hermie had stabbed Gregorio. Nestor claimed that all

this time, the petitioner was inside the house because his father had prevented him from going out. Rhodora also testified for the defense. She declared under oath that she is a friend of Annie Valenzuela, the younger sister of the accused. On February 20, 1996, Annie invited her to sleep in their house. They had dinner at about 6:30 pm, ahead of the other members of the household who were then in conversation with another visitor, whom she later learned to be Nestor. At about 9:45 pm, while she and Annie were manning the Valenzuelas store, Willy Valenzuela arrived and joined the group singing and playing the guitar in front of the store; Hermie was among those in the group. At around 10:00 pm, she noticed Gregorio and Rogelio walking past the store; both appeared drunk as they were walking aimlessly. As they walked, the two momentarily stopped and stared at the group in front of the Valenzuelas store before proceeding to another sari-sari store nearby. She then heard Gregorio shout vulva of your mother, Valenzuela three times; Rogelio tried to pacify him. Thereafter, she saw Hermie approach Gregorio to confront him. In a blur, she witnessed Gregorio hit Hermie on the left side of the face. Hermie retreated to his house but came back and stabbed Gregorio at the left side of his back. She noticed that Willy then held the arms of Gregorio in an attempt to mollify the latter; Gregorio responded by hitting Willy on the head. At this point, she heard Willy advise Gregorio to go away to avoid further trouble; instead of heeding the advice,

Gregorio threw a fist blow at Hermie, who dodged the blow and stabbed Gregorio a second time. Right after the stabbing, she saw Hermie run to the direction of the Valenzuelas house, while Gregorio and Rogelio proceeded to the house of Barangay Captain Dela Cruz. She categorically declared that the petitioner had no participation in the incident, as only the petitioner's brothers, Willy and Hermie, were at the scene of the crime. After trial on the merits, the trial court rendered its decision[4] of November 21, 1996, convicting the petitioner of frustrated murder. The trial court found that the petitioner s defense of alibi had insufficient evidentiary support and must yield to the positive identification by the prosecution witness, Rogelio. The dispositive portion of the lower court's decision reads: WHEREFORE, in the light of all the foregoing considerations, the court finds and holds the accused, Ramie Valenzuela, guilty beyond reasonable doubt of the crime of Frustrated Murder as charged in the information filed against him, pursuant to law, taking into account the provision[s] of Article 250 of the Revised Penal Code and the Indeterminate Sentence Law in his favor, hereby sentences said accused 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 costs of the suit. x x x In appreciating the qualifying circumstance of abuse of superior strength, the trial court explained:

The information filed against the accused alleges that the two accused took advantage of their superior strength in attacking and assaulting the offended party with sharp pointed, bladed instrument twice on the left side of the back. Abuse of superior strength is determined by the excess of the aggressors natural strength over that of the victim's, considering the momentary positions of both parties and the employment of means weakening the defense of the victim, although not annulling it. Thus, there is abuse of superior strength in the case where four persons attacked an unarmed victim (People v. Garcia, 94 SCRA 14) or where six persons inflicted injuries on the victim (People v. Gonzales). The petitioner appealed to the CA. In its decision of June 18, 2001, the appellate court affirmed with modification the trial court s decision; it held that the crime committed was attempted murder since the wounds inflicted were not fatal. The fallo of the CA decision reads: WHEREFORE, premises considered, the appealed decision is hereby AFFIRMED WITH MODIFICATION. In lieu thereof, another one is entered CONVICTING the accused of the crime of ATTEMPTED MURDER and sentencing him to suffer the penalty of imprisonment 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 x x x. (Emphasis supplied.) The appellate court denied the petitioner's motion for

reconsideration that followed, thus paving the way for the present petition for review on certiorari on the sole issue of WHETHER THE COURT OF APPEALS ERRED IN CONVICTING THE PETITIONER FOR ATTEMPTED MURDER. Thus framed, the sole issue before us is whether the crime the petitioner committed should properly be attempted murder based on the qualifying circumstance of abuse of superior strength. We find the petition meritorious. The RTC and the CA commonly found an intent to kill. They differ in the appreciation of the stage of execution of the crime as the RTC considered the crime frustrated, while the CA decided that it was attempted because the victim s wounds were not fatal. In both rulings, the RTC and the CA characterized the act to be qualified by abuse of superior strength; thus, it was either attempted or frustrated murder. The petitioner, in his Reply,[5] finds the appreciation of abuse of superior strength to be erroneous, as the Information charging him with the crime of frustrated murder did not allege this circumstance with particularity as a qualifying circumstance. The petitioner therefore posits that this circumstance, even if proven, must be considered a generic aggravating circumstance.

We see no merit in the petitioner's contention in light of our ruling in People v. Aquino[6] which we intended to guide the bench and the bar on how to allege or specify qualifying or aggravating circumstances in the Information. We held in this case that the words aggravating/qualifying, qualifying, qualified by, aggravating, or aggravated by need not be expressly stated, so long as the particular attendant circumstances are specified in the Information. This conclusion, notwithstanding, we hold that the conviction of the accused of the crime of either attempted or frustrated murder is substantively flawed, as both the RTC and the CA erroneously appreciated the presence of abuse of superior strength as a qualifying circumstance. Our own examination of the evidence tells us that no conclusive proof exists showing the presence of this circumstance in the commission of the felony. Both the trial and appellate courts concluded that abuse of superior strength was present because the petitioner held the arms of the victim to facilitate the stabbing by his brother (Hermie) and to limit the degree of resistance that the victim may put up. [7] The trial court, in particular, held that there is no doubt that accused took advantage of their combined strength when one held the victim by the shoulder and armpit and the other inflicted two stab wounds on the left side of his back. We find this reasoning erroneous.

Abuse of superior strength is present whenever there is a notorious inequality of forces between the victim and the aggressor/s that is plainly and obviously advantageous to the aggressor/s and purposely selected or taken advantage of to facilitate the commission of the crime.[8] Evidence must show that the assailants consciously sought the advantage,[9] or that they had the deliberate intent to use this advantage.[10] To take advantage of superior strength means to purposely use force excessively out of proportion to the means of defense available to the person attacked.[11] The appreciation of this aggravating circumstance depends on the age, size and strength of the parties.[12] In the present case, the prosecution failed to present evidence to show a relative disparity in age, size, strength, or force, except for the showing that two assailants, one of them armed with a knife, attacked the victim. The presence of two assailants, one of them armed with a knife, is not per se indicative of abuse of superior strength.[13] Mere superiority in numbers does not indicate the presence of this circumstance.[14] Nor can the circumstance be inferred solely from the victim s possibly weaker physical constitution. In fact, what the evidence shows in this case is a victim who is taller than the assailants[15] and who was even able to deliver retaliatory fist blows[16] against the knife-wielder. The events leading to the stabbing further belie any finding of deliberate intent on the part of the assailants to abuse their superior

strength over that of the victim.[17] The testimonies of the witnesses, on the whole, show that the encounter between the victim and his assailants was unplanned and unpremeditated. The victim and his companions were simply passing by after a night of conversation with drinks, while the assailants were simply singing and engaged in merrymaking, and no conscious effort on the part of the accused appeared to have been made to use or take advantage of any superior strength that they then enjoyed.[18] Specifically, we do not find it certain nor clearly established that the accused, taking advantage of their number, purposely resorted to holding the victim by the arms so that the knife-wielder would be free to stab him at the back. In terms of numbers, the victim was with a companion while only two of the Valenzuela brothers participated in the attack; thus a parity in numbers existed. Nor is it certain that the victim was simply overwhelmed by the act of the accused of holding the victim by the shoulders while his brother stabbed him at the back. The evidence on this point is simply too sketchy and too confused for a definitive conclusion. What, to us, is certain is the intent to kill, as shown by the two stab wounds and their location; they were back wounds that could have been fatal or near fatal had greater force been used or the dynamics of the parties movements at the time of the stabbing been different. Even if the accused did not directly wield the knife, he is as guilty as the knifewielder for the unity of purpose he has shown in participating in the attack against the victim, Gregorio.

In light of all these, we are compelled to rule out the attendance of abuse of superior strength as a qualifying circumstance. Considering further that the victim sustained wounds that were not fatal and absent a showing that such wounds would have certainly caused his death were it not for timely medical assistance, we declare the petitioner s guilt to be limited to the crime of attempted homicide. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals dated June 18, 2001 in CA-G.R. CR No. 20533 is AFFIRMED with MODIFICATION. Petitioner Ramie Valenzuela is found guilty of attempted homicide under Article 249 in relation with Article 6 of the Revised Penal Code. In the absence of any modifying circumstance attendant to the commission of the crime, we hereby sentence him to suffer an indeterminate penalty[19] of four (4) months of arresto mayor in its medium period, as minimum, to three (3) years of prision correccional in its medium period, as maximum. SO ORDERED.

THIRD DIVISION [G.R. Nos. 141724-27. November 12, 2003] PEOPLE OF THE PHILIPPINES, appellee, vs. ARNULFO ORANDE y CHAVEZ, appellant. DECISION CORONA, J.: This is an appeal from the decision[1] of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 97-159184, 97159185, 97-159186 and 97-159187, convicting appellant for two counts of simple rape, one count of statutory rape and one count of frustrated rape, and sentencing him to suffer three counts of reclusion perpetua for the simple and statutory rapes, and an indeterminate penalty of 8 years to 14 years and 8 months of imprisonment for the frustrated rape. Complainant Jessica Castro charged appellant with raping her four times between January 1994 and November 1996. The informations filed against appellant by the City Prosecutor read: In Criminal Case No. 97-159184 That on or about January 14, 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, by means of force and intimidation, that is, by threatening to kill said Jessica Castro, had carnal knowledge of the latter against her will. CONTRARY TO LAW. In Criminal Case No. 97-159185-

That on or about April 15, 1994, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, by means of force and intimidation, that is, by threatening JESSICA CASTRO Y DE LA CRUZ of death should she resist or report the matter to anybody, had carnal knowledge of said Jessica C. Castro, a minor, under 12 years of age, against her will. CONTRARY TO LAW. In Criminal Case No. 97-159186 That on or about March 12, 1995, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, by means of force and intimidation, that is, by threatening Jessica Castro y de la Cruz of death should she resist or report the matter to anybody, had carnal knowledge of said Jessica C. Castro, a minor, under 12 years of age, against her will. CONTRARY TO LAW. In Criminal Case No. 97-159187That on or about November 17, 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, by means of force and intimidation, that is, by threatening to kill said Jessica Castro, had carnal knowledge of the latter against her will. CONTRARY TO LAW.[2] Arraigned on September 5, 1997, appellant pleaded not guilty.[3] Thereafter, trial on the merits ensued. However, the trial was

subsequently postponed for eight months as Jessica was suffering from psychological and emotional trauma from her horrifying ordeal.[4] The lower court ordered the suspension of the trial to enable her to undergo psychological therapy at the Child Protection Unit of the Philippine General Hospital. Trial resumed in November 1998 with the prosecution presenting Jessica as its first witness. Incidentally, prior to the filing of the aforementioned cases, Jessica also filed a criminal case against her mother, Girlie de la Cruz Castro, and the appellant for child abuse. The evidence of the prosecution showed that appellant was the common law husband of Jessica s mother Girlie. Appellant, a pedicab driver, started living with Girlie and her three children sometime in 1993 in a two-storey house in Paco, Manila owned by Girlie s mother. They occupied a room on the ground floor which served as their bedroom, kitchen and living room. The adjacent room was occupied by Girlie s brother and his family while the room on the second floor was occupied by Girlie s sister and her family. Girlie gave birth to two more children by appellant. To earn a living, Girlie sold fish at the Paco Market, buying her stock from the Navotas fish market late at night and sometimes in the early hours of the morning. The first incident of rape, subject of Criminal Case No. 97-159185, happened sometime in April 1994 when Girlie was at the fish market. Appellant was left in the house with

Jessica, her siblings and appellant s two children with Girlie. Jessica was then watching television while her brothers and sisters were sleeping beside her. Appellant grabbed Jessica s right hand and lasciviously jabbed her palm with his finger. He ordered her to undress which she obeyed out of fear as appellant was armed with a knife. Appellant then removed his pants, placed himself on top of complainant and succeeded in partially penetrating her. Jessica felt pain in her vagina and saw it smeared with blood and semen. She tried to leave the room but appellant locked the door and threatened to kill her if she told her mother what happened. Jessica was then only nine years and four months old, having been born on December 19, 1983.[5] The second rape, subject of Criminal Case No. 97-159186, occurred on March 14, 1995 at around 11:00 a.m. when Jessica was 11 years and 3 months old. Girlie was in the market while Jessica and her siblings were left in the house watching television. Soon after, appellant arrived and sent the children, except Jessica, to play outside. Left alone with Jessica, appellant removed his clothes, pulled out a balisong and ordered Jessica to undress. He then held her by the shoulder and made her lie down. Then he mounted her. Appellant reached his orgasm shortly after penetrating her slightly. He stood up with semen still dripping from his penis. Apparently still not satisfied, he knelt down, kissed and fingered Jessica s vagina, then mashed her breasts. He only stopped what he was doing when someone knocked at the door. Appellant and Jessica hurriedly put on their clothes and, as appellant

opened the door, Jessica went to the bathroom to wash herself. The third rape, subject of Criminal Case No. 97-159184, occurred on January 14, 1996, when Jessica was 12 years and 6 months old. She arrived from school at around 11:00 a.m. While she was changing her clothes, appellant ordered Jessica s brother and sister to visit their mother at the Paco Market and sent his children to play outside the house. When appellant and Jessica were alone, he removed his pants, got his knife and ordered her to undress. Since she was afraid, Jessica was forced to remove her clothes. Appellant then told her they would do what they did before, pulled her towards him and made her lie down on the floor. While holding the knife, he kissed and fingered her vagina, then mashed her breasts. Thereafter, he placed himself on top of her, partially penetrated her until he ejaculated. When Jessica s brother and sister arrived, appellant hurriedly put on his clothes. Jessica did the same. She then went to the bathroom to wash herself and change her bloodstained underwear. The last rape, subject of Criminal Case No. 97-159187, occurred sometime in November 1996, at around 11:00 p.m. Girlie was again in the public market while Jessica was at home with her siblings who were all asleep. Appellant told Jessica that they would again do what they did before but she refused, saying that she might get pregnant. Appellant brandished his balisong and threatened to kill her. He then covered himself and Jessica with a blanket, removed his pants and her shorts, and placed himself on top of her. His penis slightly

penetrated her vagina. He mashed her breasts, inserted his finger into her vagina and kissed it. Jessica pushed him away and told him she wanted to sleep. Then she put on her shorts. Appellant also put on his pants and told Jessica not to tell her mother what he did to her. He assured her that she would not get pregnant because she was not yet menstruating. Sometime in March 1997, a teacher of Jessica, Mrs. Adoracion Mojica, noticed the unusual treatment of Jessica by appellant. When confronted by Mrs. Mojica, Jessica admitted that appellant had raped her several times. Mrs. Mojica called up Jessica s aunt, Mrs. Antonina de la Cruz, and narrated to her what Jessica had confessed. Mrs. De la Cruz then accompanied Jessica to the police station to file a complaint and to the Philippine General Hospital (PGH), Child Protection Unit, to be examined. Dr. Bernadette J. Madrid, Director of the Child Protection Unit, examined Jessica and the findings revealed the following: Genital Examination: Hymen: Estrogenized, Attenuated from 1 o clock position to 4 o clock position and from 6 o clock to 12 o clock position Notch at 5 o clock Healed hymenal tear at the 6 o clock position Anus: Normal rectal tone, no pigmentation, no scars, normal rugae[6] For his defense, appellant advanced denial and alibi. He denied ever raping Jessica and testified that, during the alleged second rape incident, he was driving his pedicab. His live-in partner Girlie testified

that, during the purported first and second incidents of rape, appellant was with her to buy fish in Navotas and sell them in Paco market. Appellant argued that since Jessica disapproved of his relationship with her mother, she had the motive to falsely accuse him of raping her. Further, he pointed out the improbability of the alleged first and fourth incidents of rape inasmuch as the make-up of the room made it impossible for Jessica s siblings not to wake up during the commission of the crime. Appellant further contended that Jessica s failure to cry out for help, knowing that her mother s relatives were in the same house, made her story of rape unbelievable. The trial court gave credence to the testimony of Jessica and convicted the appellant: WHEREFORE, in Criminal Case No. 97-159184, Accused Arnulfo Orande y Chavez is convicted of simple rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law. In Criminal Case No. 97-159185, the accused is also convicted of simple rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law. In Criminal Case No. 97-159186, the accused is likewise convicted of statutory rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law.

In Criminal Case No. 97-159187, the accused is convicted of frustrated rape under Article 335 of the Revised Penal Code and sentenced to suffer the indeterminate penalty of 8 years of prision mayor as minimum to 14 years and 8 months of reclusion temporal as maximum, and to pay the costs. On the civil liability of the accused in the four cases, he is ordered to pay the victim, Jessica Castro, moral, nominal and exemplary damages in the respective sums of P400,000.00, P200,000.00 and P100,000.00. SO ORDERED.[7] In this appeal, appellant assigns the following errors: I. THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONE COUNT OF STATUTORY RAPE, ONE COUNT OF FRUSTRATED RAPE AND TWO COUNTS OF SIMPLE RAPE. II. THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF FRUSTRATED RAPE DESPITE THE FACT THAT UNDER PREVAILING JURISPRUDENCE THERE IS NO SUCH CRIME.[8] The Office of the Solicitor General argues that appellant s convictions should be upheld as the prosecution was able to prove his guilt beyond reasonable doubt. The appeal is partly meritorious. This Court finds that the prosecution was able to prove beyond reasonable doubt appellant s guilt

for two counts of statutory rape and two counts of simple rape, there being no such crime as frustrated rape in this jurisdiction. After a thorough review of the records, we find no reason to deviate from the well-established rule that the credibility of witnesses is a matter best assessed by the trial court because of its unique opportunity to observe them firsthand and to note their demeanor, conduct and attitude.[9] In the present case, the trial court found Jessica s testimony convincing, logical and credible. Moreover, the court a quo: xxx discerned from her demeanor the intense mental torture, embarrassment, emotional pain and bitterness she suffered whenever she was asked to recall and narrate the humiliating sexual ordeals she had gone through, and her ... desire for justice and the punishment of her defiler. She was continually in tears while testifying and the proceeding was interrupted several times to calm her down.[10] No young woman would allow an examination of her private part and subject herself to the humiliation and rigor of a public trial if the accusations were not true, or if her motive were other than a fervent desire to seek justice.[11] We do not subscribe to appellant s theory that the filing of the rape charges was motivated by Jessica s dislike for him. To charge appellant with rape for the sole purpose of exacting revenge, as appellant implies in his brief, takes a certain kind of psychiatric depravity which this Court does not see in Jessica.

The fact that Jessica had to undergo psychological treatment[12] after her first testimony in February 1998 belies appellant s defense. The need for such counseling came about after the defilement she suffered in the hands of appellant. In fact, it was the incidents of rape that caused her psychological and emotional imbalance which required therapy at the Child Protection Unit of the Philippine General Hospital. The alleged inconsistencies and improbabilities in Jessica s testimony did not discredit her nor reveal any fabrication. Inconsistencies regarding minor details were attributable to the fact that she was recalling details of incidents that happened three years before, not to mention the fact that these details pertained to something she had very little knowledge of, being then only nine years and three months old when the first rape was committed. We have consistently ruled that errorless recollection of a harrowing experience cannot be expected of a witness (a very young one at that) specially when she is recounting details of an occurrence so humiliating, so painful and, in this case, so alien as rape.[13] Appellant makes much of the fact that two incidents of rape happened inside the room where the other children were sleeping. This Court has repeatedly held that rape can be committed in the same room where other members of the family are also sleeping, in a house where there are other occupants or even in places which to many might appear unlikely and high-risk venues for its commission.[14]

Also, the failure of Jessica to cry out for help during the incidents in question, inspite of the physical proximity of her relatives, or to report to them what happened, did not at all make her testimony improbable inasmuch as it is not uncommon for a young girl of tender age to be easily intimidated into silence and conceal for sometime the violation of her honor, even by the mildest threat to her life.[15] Besides, Girlie, Jessica s mother, had a rift with her siblings who lived in the same house and forbade Jessica to socialize with them. It was likewise highly probable that the strained relations between Jessica s mother, uncle and aunt prevented Jessica from confiding in them. In a number of cases, this Court has likewise ruled that delay, even of three years, in reporting the crime does not necessarily detract from the witness credibility as long as it is satisfactorily explained.[16] Jessica was threatened by appellant that he would kill her mother and relatives if she reported the rape. A young girl like Jessica can easily be mesmerized by fear of bodily harm and, unlike a mature woman, cannot be expected to have the courage or confidence to immediately report a sexual assault on her, specially when a death threat hangs over her head.[17] In view of the credible testimony of Jessica, appellant s defenses of denial and alibi deserve no consideration. These weak defenses cannot stand against the positive identification and categorical testimony of a rape victim.[18] The court a quo convicted appellant of one count of frustrated rape in

Criminal Case No. 97-151987, the dispositive portion of which read: xxx xxx xxx. In Criminal Case No. 97-159187, the accused is convicted of frustrated rape under Article 335 of the Revised Penal Code and sentenced to suffer the indeterminate penalty of 8 years of prision mayor as minimum, and to pay the costs. xxx xxx xxx. SO ORDERED.[19] However, we agree with the observation of the Solicitor General that the court a quo was referring to Criminal Case No. 97-159185, and not Criminal Case No. 97-159187, in convicting appellant of frustrated rape: The trial court convicted appellant of simple rape in Criminal Case No. 97159185. However, the factual basis thereof in the body of the decision reads: With regard to Criminal Case No. 97159185, the Court has gathered that sometime in April, 1994, at around 11:00 p.m., Jessica and her two siblings together with the accused were in their house, while their mother, Girlie, was in Navotas buying fish. Jessica was watching TV in a lying position beside her two sleeping siblings, when the accused held Jessica s right hand and jabbed her palm with his finger. Then he told her to remove her short pants, panty and T-shirt, after which the

accused removed his pants and with a balisong in his hand, he began kissing the sensitive parts of her body. Then he placed himself on top of her and tried to have sexual intercourse with her. He succeeded in nudging her sex organ with the tip of his penis, but was unable to accomplish penetration, due to the resistance offered by her by struggling and kicking him. Nonetheless, the accused had orgasm and Jessica s sex organ was smeared with his semen. (emphasis supplied, p. 2, Decision) Such was the only rape incident where the trial court concluded there was no penetration. On the other hand, the factual basis for the conviction in Criminal Case No. 97-159187 in the body of the trial court s decision reads: Anent Criminal Case No. 97-159187, the records further show that in November, 1996, at around 11:00 p.m., Jessica was watching TV while the other siblings were asleep and her mother was away, when accused again made sexual advances to her. She resisted and told accused she might become pregnant, but the accused persisted and threatened to kill her at that very moment if she would not submit to his lust. As in the previous occasions, he again succeeded in having carnal knowledge of the helpless and scared victim. After her defilement, the victim continually cried and the accused tried to calm her down by assuring her that she would not be impregnated, because she has not yet began to have menstruation (p. 3, Decision)

Consequently the conviction for frustrated rape should pertain to the incident in April 1994 described in Criminal Case No. 97-159185 and not Criminal Case No. 97-159187 since this case refers to the November 1996 rape incident where the findings of the trial court was that there was carnal knowledge.[20] Moreover, the oversight of the court a quo in interchanging Criminal Case Nos. 97-159185 and 97-159187 is further evidenced by the following paragraph found in page four of the trial court decision: In Criminal Case 97-159185 and 97159184, the acts of the accused in having carnal knowledge of the victim by intimidation on two separate occasions in [the] early or middle part [of] 1996, and in November of the same year, constitute two separate crimes of qualified rape under R.A. 7659 and the penalty prescribed therefore is death by lethal injection.[21] (Emphasis Ours) The rape incidents which occurred in 1996 were designated as Criminal Case Nos. 97-159184 and 97159187, as borne out by the informations filed by the City Prosecutor.[22] Thus, the conviction for frustrated rape should pertain to Criminal Case No. 97-159185 and not Criminal Case No. 97-159187. Regarding Criminal Case No. 97159185 (the April 1994 rape incident), the Court sustains appellant s contention that there is no such crime as frustrated rape, as we have ruled in a long line of cases.[23] Recently, in People vs.

Quinanola,[24] we again reiterated the rule: Let it be said once again that, as the Revised Penal Code presently so stands, there is no such crime as frustrated rape. In People vs. Orita, the Court has explicitly pronounced: 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 vs. Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil. 980; People vs. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People vs. 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 vs. Tayaba, 62 Phil. 559; People vs. Rabadan, et al., 53 Phil. 694; United States vs. 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 vs. Eriia, 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 Eriia case, supra, might have prompted the lawmaking body to include the crime of frustrated rape in the amendments introduced by said laws. The Court is not unaware that Republic Act No. 7659, amending Article 335 of the Revised Penal Code, has retained the provision penalizing with reclusion perpetua to death an accused who commits homicide by reason or on the occasion of an attempted or frustrated rape. Until Congress sees it fit to define the term frustrated rape and thereby penalize it, the Court will see its continued usage in the statute book as being merely a persistent lapse in language. (emphasis ours)

Thus, it was error for the trial court to convict appellant of frustrated rape. Besides, after a careful review of the records, we find that the rape was in fact consummated. Jessica initially testified that, although appellant did not succeed in inserting his penis in her vagina, she felt his sex organ touch hers and she saw and felt semen come out of his penis and smear her vagina.[25] In response to the clarificatory questions asked by the prosecutor, Jessica testified that the appellant was able to slightly penetrate her because she felt pain and her vagina bled.[26] It has been held that, to be convicted of rape, there must be convincing and sufficient proof that the penis indeed touched the labia or slid into the female organ, and not merely stroked the external surface thereof.[27] Nevertheless, we have also ruled in cases where penetration is not established that the rape is deemed consummated if the victim felt pain, or the medicolegal examination finds discoloration in the inner lips of the vagina, or the labia minora is already gaping with redness, or the hymenal tags are no longer visible.[28] In the present case, the victim testified that she felt pain and her vagina bled, indisputable indications of slight penetration or, at the very least, that the penis indeed touched the labia and not merely stroked the external surface thereof. Thus, the appellant should be found guilty of (consummated) rape and not merely frustrated or attempted rape. Pursuant to Section 11 of RA 7659 or the Heinous Crimes Law, the penalty of death is imposed if rape is committed when the victim is under 18 years of age and the offender is the common-law spouse of the

parent of the victim. However, the trial court was correct in not imposing the death penalty in Criminal Case Nos. 97-159184 and 97-159187 because the qualifying circumstances of age and relationship of the victim to the appellant were not alleged in the information.[29] Thus, appellant can only be convicted of simple rape punishable by reclusion perpetua under Article 335 of the Revised Penal Code. However, in Criminal Case Nos. 97-159185 and 97159186, the appellant can be convicted of statutory rape also punishable by reclusion perpetua under Article 335 of the Revised Penal Code inasmuch as the age of Jessica was alleged in the information[30] and duly proven during the trial by the presentation of her birth certificate.[31] We award moral damages of P50,000 for each count of rape as moral damages are automatically awarded to rape victims without need of pleading or proof.[32] We also award civil indemnity ex delicto of P50,000 for each count of rape in the light of the ruling that civil indemnity, which is distinct from moral damages, is mandatory upon the finding of the fact of rape.[33] We likewise award exemplary damages of P25,000 for each count of rape consistent with the prevailing jurisprudence on the matter.[34] WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 97159 184 to 87 is AFFIRMED with the following MODIFICATIONS: 1. In Criminal Case No. 97-159 184, appellant is convicted of simple rape

under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua. 2. In Criminal Case No. 97-159 185, appellant is convicted of statutory rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua. 3. In Criminal Case No. 97-159186, appellant is convicted of statutory rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua. 4. In Criminal Case No. 97-159187, appellant is convicted of simple rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua. For each count of rape, appellant is ordered to pay complainant Jessica Castro P50,000 as moral damages, P50,000 as civil indemnity and P25,000 as exemplary damages, or a total of P500,000. Costs against appellant. SO ORDERED. Puno, (Chairman), Panganiban, Sandoval-Gutierrez, and CarpioMorales, JJ., concur.

EN BANC [G.R. Nos. 131926 & 138991. June 18, 2003] PEOPLE OF THE PHILIPPINES, appellee, vs. MICHAEL U. PAGALASAN alias Mike, RONNIE CABALO alias Romy, ALADIN CABALO, FERDINAND CORTEZ, a JOHN DOE identified only as FERNANDO, and a PETER DOE identified only as Bong, accused. MICHAEL U. PAGALASAN alias Mike, appellant. DECISION CALLEJO, SR., J.: This is an automatic review of the Decision[1] of the Regional Trial Court of General Santos City, Branch 35, convicting appellant Michael U. Pagalasan of two counts of kidnapping for ransom of George Lim and his 10-year-old son Christopher Neal Lim and sentencing him to double death. The Antecedents The Spouses George and Desiree Lim and their three young children, one of whom was 10-year-old Christopher Neal Lim, resided at Villa Consuelo Subdivision, General Santos City. The spouses hired a security guard, Ferdinand Cortez, from the Valiant Security Agency to provide security services to the family. On September 4, 1994, at 11:00 p.m., the spouses and their children were in the master s bedroom watching television. The couple s housemaid, Julita Sarno, was in the kitchen. She heard knocks on the kitchen door. Thinking that it was Ferdinand, she opened the door. Four men, about 5 5 to 5 6 tall, each armed with handguns, two of whom were

holding hand grenades, barged into the kitchen. The four intruders wore bonnets over their faces. With them was Ferdinand, whose hands were tied behind his back. When asked by the masked men where her employers were, Julita responded that they were in their bedroom. On orders of the intruders, she knocked on the bedroom door. When George s daughter opened the door, three of the masked men barged into the room, while the fourth masked man remained in the sala of the house.[2] The three masked men shouted to George and Desiree: Walang mangyayari sa inyo basta ibigay ninyo ang kailangan namin. (Nothing will happen to you provided you give us what we want.)[3] They ransacked the house, getting cash and valuables. The masked men gave Desiree a handwritten note,[4] and dragged George and Christopher Neal Lim out of the bedroom through the sala to the garage, where George s Nissan car was parked for the night. George saw Ferdinand in the sala with his hands tied behind his back. One of the masked men ordered George to hand over the key to his vehicle, to board the car and occupy the back seat along with Christopher. Father and son did as they were told. Two of the masked men positioned themselves on either side of George and Christopher. The third man drove the car, while the fourth sat on the passenger s seat beside the driver. The car cruised along the national highway. When the car was nearing the Gambalan Kitchenette, George and Christopher were blindfolded. The masked men told them that they would be brought to Polomolok. After about fifteen minutes, the car stopped at Sitio Tupi. The two men who were seated

at the back and the masked man seated beside the driver alighted from the car, bringing Christopher with them. George was transferred to the front seat beside the driver. George was told that he would be transported to Maasim. In the meantime, SPO2 Federico Pao, the duty officer of Police Precinct No. 2, received a radio report that George Lim and his son Christopher had been kidnapped. Police investigators were dispatched to the Lim residence to conduct an on-the-spot investigation. They brought Ferdinand and Julita to the police station for investigation. SPO2 Renato Daga-as, SPO2 Datur Villanueva and SPO1 Alimuddin Timbao were directed to establish a mobile checkpoint at the intersection of the national highway and a dirt road (Espina Road). The three policemen boarded a Tamaraw mobile car and parked it at the said intersection. At about thirty meters from the checkpoint, the masked driver of the Nissan vehicle saw the police car. Instead of running the car through the checkpoint, the driver stopped and switched off its headlights. He removed his bonnet and George s blindfold, warning the latter not to make any false move. George looked at the driver, who turned out to be the appellant Michael Pagalasan. The three police officers approached the car. Daga-as went to the right side of the car beside the passenger seat, while Villanueva went to the left side, near the driver s seat. For his part, Timbao proceeded to the car s rear end. Daga-as and Villanueva identified themselves to George and Michael as police officers on the lookout for a certain George

Lim and his son who had been kidnapped in General Santos City. Daga-as inquired from George what his name was, and George replied that he was Albert Lim. The driver identified himself as Michael Pagalasan. George gave a false first name because he was afraid Michael might shoot him. Daga-as noticed that George s fingers were trembling. Villanueva knocked at the door on the driver s side, and tried to open the same, but it was locked. When Michael himself opened the door, Villanueva pulled him out of the vehicle and brought him to the mobile car. Michael was suddenly in the custody of the policemen. George then identified himself as one of the kidnapped victims. He also told the policemen that his son was still with the other kidnappers. The policemen thereafter searched the Nissan car and found a .38 caliber[5] handgun with six live bullets in its chamber[6] and a grenade under the driver s seat.[7] The policemen brought Michael and George to the police station where Ferdinand was being interrogated by police investigators. Ferdinand told George that he had nothing to do with the kidnapping, but before he could explain further, he was whisked into the investigation room. After giving a sworn statement to the police investigator, George was allowed to go home. Desiree gave George the handwritten letter earlier given to her by the kidnappers before they left the house that evening. In the letter, the spouses were warned not to coordinate with the military, nor to take any action in connection with the kidnapping without their knowledge or consent. They were also informed that the malefactors would communicate with the couple,

whether by letter or through the telephone only through MUBARAK II or 2. [8] Julita executed an affidavit in connection with the kidnapping.[9] Police Inspector Antonio Evangelista ordered SPO4 Recio Aniversario to conduct a custodial investigation on Michael. Recio asked Michael if he wanted to execute an affidavit, and Michael replied that he was going to execute one. The police investigator inquired if he knew of any lawyer, to which Michael replied in the negative. The police investigator then suggested Atty. Tomas C. Falgui, a private practitioner, as his counsel. When Michael agreed, the police investigator phoned the lawyer, requesting the latter to assist Michael while undergoing custodial investigation. The lawyer agreed and forthwith proceeded to the police station. Michael gave his confession under custodial investigation with the assistance of Atty. Falgui.[10] In his confession, Michael admitted that upon orders of Ronnie Cabalo, he and three other men, Aladin (Ronnie s brother), a Muslim known as Ferdinand, and Bong (a resident of Purok Islam), had kidnapped George and his son Christopher. Ronnie Cabalo instructed Michael to use George s vehicle to transport father and son to the banana plantation where Aladin, Ferdinand and Boy would alight with Christopher, and to thereafter return George to his house. Aladin had given him a handgun for his use. Ferdinand Cortez was in cahoots with them. He was at first reluctant to obey Ronnie, but relented when he was told not to be afraid and to use the grenade in case of trouble.

George told him that he had already given money to Aladin, and that Michael s companions had taken some pieces of jewelry from him and his wife before they left the Lim residence. In the light of Michael s confession, farmer Hadji Aladin Malang Cabalo, Ronie Puntuan and Fernando Quizon were arrested and detained at Camp Fermin Lira Barracks, General Santos City. In the meantime, on September 6, 1994, George received another handwritten letter, ordering the release of Michael and Ronie Puntuan because they were innocent, and demanding P3,000,000 for Christopher s release.[11] On September 9, 1994, George received another handwritten letter dated September 9, 1994, this time from MUBARAK II or 2 informing him and his wife that the kidnappers did not want the military to be involved nor innocent people to be prejudiced. The spouses were also warned that their son would not be released alive unless Ronie Puntuan was freed in three days.[12] On the same day at 3:25 p.m., Ronie Puntuan, through counsel, filed a motion with the MTC praying that he be transferred from the Camp Fermin Lira Barracks to the General Santos City Jail.[13] In the morning of the following day, September 10, 1994, Christopher was rescued by policemen without any ransom being paid. On September 13, 1994, George executed a sworn statement relating to the incidents that happened from September 4, 1994 to September 10, 1994.[14]

Michael was charged with kidnapping for ransom and violation of PD 1866 before the Municipal Trial Court (MTC) of General Santos City.[15] During the initial stage of the preliminary investigation by the MTC on September 6, 1994, Atty. Falgui appeared as Michael s counsel and testified on what transpired immediately before, during and after the custodial investigation, including Michael s execution of his extrajudicial confession.[16] Michael was also placed on the witness stand and, with the assistance of counsel, testified on his extrajudicial confession. He affirmed the veracity of the contents of the said confession.[17] Subsequently, Michael, through his mother, secured the services of Atty. Emmanuel V. Fontanilla. On September 12, 1994, Michael executed an affidavit withdrawing his September 5, 1994 extrajudicial confession, in which he stated that: (a) he was not assisted by counsel of his own choice when he executed the extrajudicial confession; and (b) Ronie Puntuan, who was arrested and detained, was not Ronnie Cabalo.[18] Michael also executed a counter-affidavit where he denied the accusations against him, and clarified that he was forced and intimidated into making his September 5, 1994 confession, and he was not provided with counsel of his own choice during custodial investigation. His constitutional rights under custodial investigation were allegedly not sufficiently explained to him.[19] He filed the said affidavits with the MTC during the preliminary investigation.

On September 23, 1994, the MTC issued a resolution finding probable cause for charging the accused with kidnapping for ransom. The Office of the City Prosecutor conducted a reinvestigation of the case. On October 4, 1994, the Office of the City Prosecutor issued a resolution ordering the release of Hadji Aladin Malang Cabalo on the ground that he was not the Aladin Cabalo referred to by Michael in his confession.[20] An Information for violation of PD 1866 was filed against Michael on October 17, 1994 with the Regional Trial Court of General Santos City, Branch 22, docketed as Criminal Case No. 11062. On November 3, 1994, Michael, Ronnie Cabalo, Aladin Cabalo, Ferdinand Cortez, a certain John Doe identified as Fernando, and Peter Doe were charged with kidnapping for ransom in an Information, docketed as Criminal Case No. 11098, which reads: That on or about September 4, 1994, in General Santos City, Philippines, within the jurisdiction of this Honorable Court, the said accused, conspiring, and confederating together and mutually helping each other, did then and there willfully, unlawfully and feloniously kidnap George Lim, and his ten-year-old son, Christopher Neal Lim, for the purpose of extorting ransom from the said victims.[21] The cases were raffled to Branch 22 of the Regional Trial Court. When arraigned in Criminal Case No. 11062 for Violation of PD 1866, Michael pleaded not guilty. On February 6, 1995, Michael, Ferdinand and Fernando Quizon were arraigned in Criminal Case No. 11098 and pleaded not guilty.[22]

Ronnie Cabalo and Aladin Cabalo remained at-large. On August 24, 1995, the judge hearing the cases inhibited himself. Both cases were re-raffled, assigned to, and were tried jointly by Branch 35 of the Regional Trial Court. During the trial, Michael, through counsel, admitted the truth of the contents of the affidavit executed by Julita Sarno.[23] Michael also executed an affidavit on December 5, 1995 alleging inter alia that he was forced at gunpoint by Boy and Aladin to barge into the Lim residence and drive the latter s car, and that he did not know Fernando Quizon.[24] After the prosecution had presented all its witnesses, it filed a formal offer of its documentary evidence including Michael s December 15, 1995 Sworn Statement and his confession.[25] Michael did not file any comment or opposition to the said offer. On May 3, 1996, the trial court issued an order admitting the prosecution s documentary evidence, including Michael s confession.[26] After the prosecution had rested its case, Fernando Quizon filed a demurrer to evidence in Criminal Case No. 11098. On July 2, 1996, the court issued an order granting the demurrer to evidence of the said accused and acquitted him of the charge.[27] The Defense and Evidence of the Accused Ferdinand Cortez denied kidnapping George and Christopher. He testified that he had been employed as a security guard by the Valiant Security Agency. He was assigned by the agency to protect George Lim and his family. On the evening of September 4, 1994, Ferdinand was

washing George s car in the garage. The house was surrounded by a 10foot wall, and the gate was locked. Ferdinand was shocked when masked men, armed with handguns, suddenly arrived. They poked their guns at him, maltreated him, and tied his hands behind his back. The masked men knocked at the door of the house and when the housemaid Julita Sarno opened it, the men dragged Ferdinand towards the entrance, to make it appear that he was the one knocking. The masked men then barged into the sala and tied Julita s hands. Ferdinand claimed he never met any of the kidnappers before September 4, 1994. He was puzzled why he was being implicated in the case. For his part, Michael testified that he was a Muslim, 19 years of age, and an elementary school graduate. He made a living as a conductor of his uncle s jeepney. At night, the jeepney was parked in Tambler, and it was where he usually slept. On the evening of September 4, 1994, at about 9:00 p.m., he was in their house at Purok Islam public market, General Santos City. His friend Bong arrived, and invited him for a stroll and to accompany the latter to get a motorcycle. Michael agreed. They took a tricycle and arrived at the Villa Consuelo Subdivision. Michael was surprised when the tricycle stopped near the gate of the Lim residence and masked men suddenly appeared, poking their guns at him. Bong fled, leaving Michael alone to fend for himself. The masked men ordered Michael to drive a car, and warned him that if he refused, he would be killed. Momentarily, one of the men emerged from the house, with George Lim in tow. George gave the key to his Nissan car to one

of the kidnappers, who in turn handed it over to Michael. The men forced George and his son Christopher to board the car. Father and son were seated between two masked men. Afraid for his life, Michael was forced to drive the car with one of the kidnappers pointing a gun at him, seated to his right at the passenger s side. The kidnappers ordered Michael to drive the car towards the direction of Barangay Ligaya. When the car reached a dark portion of the road in Barangay Ligaya, three of the men alighted, bringing Christopher with them. Michael then pleaded to George to bring him first to Tambler, where the jeepney of his uncle was parked. Michael wanted to sleep there instead of going home. George agreed, and drove the car himself through Barangay Makar. George told Michael that they had to travel along Espina road, a dirt road, instead of the regular road because they might encounter policemen, and Christopher might be killed by his kidnappers. However, the car had to stop at the intersection of the national highway and Espina Road when George saw policemen and the mobile police car parked at the intersection. Michael was arrested by the police, blindfolded, and brought to the mobile car where he was also mauled. His head was banged against the sides of the mobile car. At the precinct, Michael was mauled anew by the policemen. It was only after he had given his statement to a police investigator that Atty. Falgui arrived and told Michael, I am your lawyer. [28] Atty. Falgui instructed Michael to tell the whole truth.[29]

When his mother Camaria Opong visited him, he told her that he had been blindfolded and mauled at the station, and that because of this, his body ached. She saw a big hump in his head. On September 8, 1994, she secured the services of Atty. Fontanilla as counsel of her son. The lawyer went to the City Jail and talked to Michael. Michael showed the lawyer the contusions and bruises on his body, and the scratches on his neck. Michael told the lawyer that he had been maltreated by an inmate at the detention cell. He also narrated that he knew nothing about the kidnapping and that he was only hired by somebody to drive a car. Michael assured the lawyer that he was not aware of the purpose of the culprits in kidnapping George and Christopher. On September 9, 1994, Atty. Fontanilla executed an affidavit reiterating the information Michael conveyed to him.[30] On September 16, 1994, Michael filed an urgent motion for medical check-up, which the court granted.[31] Dra. Virginia Ramirez, Officer-InCharge of the City Integrated Health Services, examined Michael on September 22, 1994 and found him suffering from myalgia residual or muscle pains due to mauling, which she surmised took place about one week to ten days before the examination. She issued a medical certificate of the said examination.[32] On September 24, 1997, the trial court rendered judgment acquitting Ferdinand Cortez and convicting Michael of kidnapping for ransom, the decretal portion of which reads: JUDGMENT

WHEREFORE, premises considered, the accused is hereby sentenced as follows: In Criminal Case No. 11062 for failure of the prosecution to prove the accusation against the accused Michael Pagalasan beyond reasonable doubt, he is hereby ACQUITTED of the crime charged. In Criminal Case No. 11098, the accused Michael Pagalasan is hereby found guilty of the crime of kidnapping for ransom as defined and penalized under Article 267 as amended by Section 8 of Republic Act 7659, and there being no modifying circumstance to consider, he is sentenced to suffer the EXTREME PENALTY OF DEATH insofar as the case of George Lim is concerned. The same penalty of death shall also be imposed against Michael Pagalasan in the case of Christopher Neal Lim who was kidnapped on the same occasion and was released only on the sixth day after his captivity. The case of Ferdinand Cortez, for lack of sufficient evidence to convict him, he is hereby ACQUITTED of the crime charged. SO ORDERED.[33] The trial court ruled in Criminal Case No. 11098 that with or without the confession of Michael, the prosecution adduced proof beyond reasonable doubt that he, in conspiracy with three others, kidnapped George and Christopher. It found the testimony of George straightforward and positive, credible and entitled to full

probative weight. The trial court sentenced Michael to double death on its finding that he and his cohorts kidnapped George and Christopher for the purpose of extorting ransom. It disbelieved Michael s confession implicating Ferdinand Cortez, and acquitted the latter for failure of the prosecution to prove his guilt beyond reasonable doubt. The trial court likewise acquitted Michael in Criminal Case No. 11062. Michael, now the appellant, asserts that: I THE TRIAL COURT ERRED IN CONVICTING THE ACCUSEDAPPELLANT FOR THE CRIME OF KIDNAPPING FOR RANSOM OF CHRISTOPHER NEAL LIM DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. II THE TRIAL COURT ERRED IN CONVICTING THE ACCUSEDAPPELLANT FOR THE CRIME OF KIDNAPPING FOR RANSOM OF ONE GEORGE LIM WITHOUT ANY BASIS IN FACT AND IN LAW. III THE TRIAL COURT ERRED IN NOT CONSIDERING THE DEFENSE INTERPOSED BY THE ACCUSEDAPPELLANT AND IN GIVING CREDENCE TO THE INCONSISTENT TESTIMONY OF GEORGE LIM.[34] The appellant is guilty of kidnapping Christopher under Article 267 of the Revised Penal Code.

On the first assignment of error, the appellant avers that the prosecution failed to prove his guilt beyond cavil of doubt for the crime of kidnapping Christopher. George s testimony that the gun and hand grenade[35] were found in the car, under the seat beside the driver is inconsistent with his own statement before the police investigator that the said gun and grenade were found in the appellant s possession; hence, the testimony of George is incredible and barren of probative weight. The case for the prosecution was enfeebled by its failure to present Christopher to testify on his kidnapping and to corroborate the testimony of his father. The failure of the prosecution to present Christopher as a witness raised the presumption that if he had been so presented, he would have testified on matters adverse to the prosecution. For its part, the Office of the Solicitor General contends that the testimony of George, its principal witness, as well as those of its other witnesses, is sufficient to prove, beyond reasonable doubt, that the appellant conspired with three others in kidnapping Christopher for ransom. There was no need for the prosecution to present Christopher to testify on his kidnapping, as his testimony would be merely corroborative of his father s account of events. The contention of the appellant is barren of merit. Article 267 of the Revised Penal Code as amended by Republic Act No. 7659 reads: ART. 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or

detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than three days. 2. If it shall have been committed simulating public authority. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made. 4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female, or a public officer. The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense. When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. (As amended by RA No. 7659). For the accused to be convicted of kidnapping, the prosecution is burdened to prove beyond reasonable doubt all the elements of the crime, namely: (a) the offender is a private individual; (b) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (c) the act of detention or kidnapping must be illegal; and (d) in the

commission of the offense any of the following circumstances is present: (1) the kidnapping or detention lasts for more than three days; (2) it is committed by simulating public authority; (3) any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (4) the person kidnapped or detained is a minor, female, or a public officer.[36] If the victim of kidnapping and serious illegal detention is a minor, the duration of his detention is immaterial. Likewise, if the victim is kidnapped and illegally detained for the purpose of extorting ransom, the duration of his detention is immaterial. The essential elements for this crime is the deprivation of liberty of the victim under any of the abovementioned circumstances coupled with indubitable proof of intent of the accused to effect the same.[37] There must be a purposeful or knowing action by the accused to forcibly restrain the victim coupled with intent.[38] Judge Learned Hand once called conspiracy the darling of the modern prosecutor s nursery. [39] There is conspiracy when two or more persons agree to commit a felony and decide to commit it.[40] Conspiracy as a mode of incurring criminal liability must be proven separately from and with the same quantum of proof as the crime itself. Conspiracy need not be proven by direct evidence. After all, secrecy and concealment are essential features of a successful conspiracy. Conspiracies are clandestine in nature. It may be inferred from the conduct of the accused before, during and after the commission of

the crime, showing that they had acted with a common purpose and design.[41] Paraphrasing the decision of the English Court in Regina v. Murphy,[42] conspiracy may be implied if it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent of each other, were, in fact, connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment.[43] To hold an accused guilty as a coprincipal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the complicity.[44] There must be intentional participation in the transaction with a view to the furtherance of the common design and purpose.[45] The United States Supreme Court in Braverman v. United States,[46] held that the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. For one thing, the temporal dimension of the conspiracy is of particular importance. Settled as a rule of law is that the conspiracy continues until the object is attained, unless in the meantime the conspirator abandons the conspiracy or is arrested. There is authority to the effect that the conspiracy ends at the moment of any conspirator s arrest, on the presumption, albeit rebuttable, that at the moment the conspiracy has been thwarted, no other overt act contributing to the conspiracy can possibly take place, at least as far as the arrested conspirator is concerned.[47] The longer a conspiracy is deemed to

continue, the greater the chances that additional persons will be found to have joined it. There is also the possibility that as the conspiracy continues, there may occur new overt acts. If the conspiracy has not yet ended, then the hearsay acts and declarations of one conspirator will be admissible against the other conspirators and one conspirator may be held liable for substantive crimes committed by the others.[48] Each conspirator is responsible for everything done by his confederates which follows incidentally in the execution of a common design as one of its probable and natural consequences even though it was not intended as part of the original design.[49] Responsibility of a conspirator is not confined to the accomplishment of a particular purpose of conspiracy but extends to collateral acts and offenses incident to and growing out of the purpose intended.[50] Conspirators are held to have intended the consequences of their acts and by purposely engaging in conspiracy which necessarily and directly produces a prohibited result that they are in contemplation of law, charged with intending the result.[51] Conspirators are necessarily liable for the acts of another conspirator even though such act differs radically and substantively from that which they intended to commit.[52] The Court agrees with the ruling of the Circuit Court of Appeals (Second District) per Judge Learned Hand in United States v. Peoni[53] that nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understood it; if later comers change that, he is not liable for the change; his liability is limited to the common

purpose while he remains in it. Earlier, the Appellate Court of Kentucky in Gabbard v. Commonwealth[54] held that: The act must be the ordinary and probable effect of the wrongful acts specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent project of the mind of one of the confederates, outside of or foreign to the common design, and growing out of the individual malice of the perpetrator. Equally persuasive is the pronouncement of the Circuit Court of Appeals (Second District) in United States v. Crimms,[55] that it is never permissible to enlarge the scope of the conspiracy itself by proving that some of the conspirators, unknown to the rest, have done what was beyond the reasonable intendment of the common understanding. This is equally true when the crime which the conspirators agreed upon is one of which they severally might be guilty though they were ignorant of the existence of some of its constitutive facts. Also, while conspirators are responsible for consequent acts growing out of the common design they are not for independent acts growing out of the particular acts of individuals.[56] In this case, the evidence on record inscrutably shows that the appellant and his three cohorts were armed with handguns; two of them had hand grenades, and all of them had masks over their faces. They gained entry into the Lim residence after overpowering the security guard Ferdinand and the housemaid Julita, and tying their hands behind their

backs. One of the masked men remained in the sala, while the three others barged into the bedroom of George and Desiree, and kidnapped George and his ten-year-old son Christopher. The appellant and his cohorts forced father and son to board George s car. The appellant drove the car, dropped off Christopher and his cohorts at Sitio Tupi, and drove on with George in the car towards the direction of Maasim. The collective, concerted and synchronized acts of the appellant and his cohorts before, during and after the kidnapping constitute indubitable proof that the appellant and his three companions conspired with each other to attain a common objective: to kidnap George and Christopher and detain them illegally. The appellant was a principal by direct participation in the kidnapping of the two victims. The trial court found the testimony of George straightforward and positive, and entitled to credit and full probative weight.[57] The legal aphorism is that the findings of facts of the trial court, its calibration of the testimonies of witnesses and of their probative weight, its conclusions anchored on its findings are accorded high respect by the appellate court, if not conclusive effect, because of the unique advantage of the trial court of observing at close range the demeanor, conduct and deportment of witnesses as they regale the trial court with their testimonies.[58] It is true that the appellate court is not bound by the findings and conclusions of the trial court if the latter ignored, misunderstood, misapplied or misinterpreted cogent

facts and circumstances, which, if considered, would change the outcome of the case.[59] This ruling, however, is inapplicable in the case at bar, since the appellant failed to establish that the trial court erred in this wise. George testified that when the policemen found the gun and grenade[60] inside his car, the appellant was already at the police station.[61] However, in his September 13, 1994 Affidavit,[62] George stated that the policemen found the gun when the appellant was frisked, while the grenade was spotted under the passenger s seat, beside the driver. This seeming inconsistency between the two statements does not discredit his testimony nor his credibility for the following reasons: (a) it is of judicial knowledge that affidavits being taken ex parte are almost always incomplete and often inaccurate and are generally inferior to the testimony of a witness in open court;[63] (b) the credibility of George s testimony cannot be impeached by the inconsistent statements contained in his sworn statement because the said statement was not admitted in evidence; and Section 34, Rule 132 of the Revised Rules of Evidence provides that the Court shall not consider evidence which has not been formally offered; besides, George was not confronted with his sworn statement and accorded an opportunity to explain the inconsistency;[64] (c) the inconsistency refers to trivial, minor and collateral matters and not to the substance of his testimony. Such minor inconsistency even enhances its veracity as the variances erase any suspicion of a rehearsed

testimony.[65] A truth-telling witness is not always expected to give an error-free testimony, considering the lapse of time and the treachery of human memory.[66] Neither is the case for the prosecution impaired by the failure of the prosecution to present Christopher as its witness. It bears stressing that George s testimony is corroborated by Julita and the three arresting officers. Besides, case law has it that the testimony of a single witness, if positive and credible, is sufficient to sustain a judgment of conviction.[67] The law does not require the testimonies of at least two witnesses for the conviction of an accused for kidnapping and serious illegal detention. The prosecution has the discretion to decide on who to call as witness during the trial, and its failure to present a particular witness does not give rise to the presumption that evidence willfully suppressed would be adverse if withheld, where the evidence is at the disposal of the appellant and is merely cumulative or corroborative.[68] In this case, the testimony of George is, by itself, independently of Christopher s testimony, sufficient proof of the guilt of the appellant. George had personal knowledge of the facts and circumstances of the kidnapping, as he himself had been kidnapped along with his young son. His failure to testify on where Christopher was detained after the three cohorts of the appellant had alighted from the car with Christopher, and the circumstances surrounding the rescue do not weaken the case of the prosecution, as the said facts and circumstances had occurred after the crime of kidnapping had already been a fait accompli.

The prosecution failed to prove that in kidnapping George and Christopher, the appellant and his cohorts intended to extort ransom. The trial court convicted the appellant of kidnapping George and Christopher for ransom and sentenced him to double death on its finding that the appellant and his coaccused conspired to extort ransom for the release of the victims. For his part, the appellant contends that the prosecution failed to prove the element of extorting ransom. The appellant argues that he cannot be held liable for kidnapping for ransom, even if after his arrest on September 4, 1994 his coconspirators actually demanded ransom for Christopher s release. The prosecution failed to prove that he had knowledge of and concurred with the said demand. The Court agrees with the appellant. The second paragraph of Article 267 of the Revised Penal Code reads: 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. The provision is pursuant to Rep. Act No. 1084 approved on June 15, 1984 derived from the so-called Lindbergh Law in the United States, approved on June 22, 1932, as amended on May 13, 1934. To warrant the imposition of the death penalty for the crime of kidnapping and serious illegal

detention for ransom, the prosecution must prove beyond reasonable doubt the following: (a) intent on the part of the accused to deprive the victim of his liberty; (b) actual deprivation of the victim of his liberty; (c) motive of the accused, which is extortion of ransom from the victim or any other person. In kidnapping or serious illegal detention for ransom, the purpose of extorting ransom is a qualifying circumstance which must be alleged in the Information and proved by the prosecution as the crime itself by words and overt acts of the accused before, during and after the kidnapping and detention of the victim. Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed.[69] Although kidnapping for a certain purpose is a qualifying circumstance, the law does not require that the purpose be accomplished.[70] Ransom employed in the law is so used in its common or ordinary sense: a sum of money or other thing of value, price, or consideration paid or demanded for redemption of a kidnapped or detained person, a payment that releases from captivity.[71] It may include benefits not necessarily pecuniary which may accrue to the kidnapper or a third person as a condition for the release of the victim.[72] In this case, the prosecution was able to prove beyond reasonable doubt that the appellant conspired with three others to kidnap the victims. However, it failed to prove that they intended to extort ransom from the victims themselves or from some other person, with a view to obtaining the latter s release. The kidnapping by itself does not give

rise to the presumption that the appellant and his co-conspirators purpose is to extort ransom from the victims or any other person. The only evidence adduced by the prosecution to prove the element of extorting ransom are the three handwritten letters: the first was received by Desiree on September 4, 1994, while the second and third letters were received by George on September 6 and 9, 1994, respectively. The handwritten letter received by Desiree on September 4, 1994, first letter for brevity, reads: Para Sa Inyo Mr. & Mrs. Lim, Una wag na wag kayong gumawa ng hakbang na hindi namin alam o gusto, lalong-lalo na sa pakikipagusap sa militar o magkoordinate sa militar ay hindi namin gustong mangyari ang ganon mga sistem. Ang pangalawa, wag na wag kayong tumanggap ng negotiator na walang palatandaan na galing sa amin, pakiusap lang yon na dapat ninyong sundin, madidisgrasya ang aming dala kung kayo y magkakamali ng hakbang. Maliwanag sana sa inyo ang aming mga salaysay. Note Palatandaan na galing sa aming hakbang ay ito MR. MUBARAK II or 2 Sulat man o telephone[73]

The letter received by George on September 6, 1994, second letter for brevity, reads: Ronie Puntuan Michael Pagalasan Mr. G. Lim palayain ninyo ang suspek ninyo. Wala silang kasalanan bago natin tapusin ang usapan tatlong milyong piso (3,000,000) katumbas ng kalayaan ng mahal ninyong anak. Paalisin ang mga sundalo. Kailangan ang Black Out News. Huwag kang magkakamali Mr. Lim. Kunting sipyot mo patay ang anak mo. Isang araw lamang ang tagal namin sa inyo. (Sgd.)[74] The handwritten letter received by George on September 9, 1994, third letter for brevity, reads: Para sayo Mr. & Mrs. Lim, Mr. Lim, gusto ko lang ipaabot sayo ang maikli kong kataga. Unang-una, ayaw namin na mga asong militar na makialam. Pangalawa, ayaw namin sa grupo na idamay ang tao na walang-alam. Alalahanin mo mabuti lahat ng mga kataga na iniwan ko sayo, Mr. Lim. Ang taong dinampot ng militar sa purok islam na si Ronie, ang taong yan walang conection (sic) sa grupo, sa madaling usapan, Mr. Lim, alalahanin mo ang anak mo sa oras na tatlong araw na taong yan hindi makalabas. Ang isipin mo ang anak mo hindi rin makalabas hanggat sa mabulok sa lupa (maliwanag). (Sign) Palatandaan

MUBARAK II - 2[75] As gleaned from the three letters, there was no demand for ransom in exchange for George and Christopher s liberty. While there is a demand for ransom of P3,000,000 in the second letter, and a demand for the release of Ronie Puntuan within three days in the third letter, the said demands are in consideration of Christopher s release from custody, and not that of George. Even then, the prosecution failed to adduce evidence that the second letter demanding ransom in the amount of P3,000,000 for the release of Christopher actually came from the appellant and his coconspirators. It bears stressing that in the first letter, the kidnappers made it clear to the couple that only those communications, whether by letter or by telephone, bearing the name MR. MUBARAK II or 2 came from them: Note Palatandaan na galing sa aming hakbang ay ito MR. MUBARAK II or 2 Sulat man o telephone[76] The second letter received by George was signed by an unidentified person. It was not stated that the letter came from MUBARAK II-2. That the second letter could not have come from the appellant and his cohorts is buttressed by the fact that the third letter, which came from MUBARAK II-2, does not even mention any demand for ransom in

the amount of P3,000,000 for Christopher s release. The Court can only surmise, but it is possible that the signatory and sender of the second letter could have been acting independently of the appellant and his coconspirators in order to profit from the kidnapping. It bears stressing that the kidnapping of Christopher and George was already known when the appellant was arrested on September 4, 1994, and the crime had already been reported to the police authorities. Persons other than the co-conspirators of the appellant could have written the letter. Since there is no evidence that the signatory and sender of the second letter is a co-conspirator of the appellant, the latter is not bound by the said letter, conformably to Section 28, Rule 130 of the Revised Rules of Evidence which reads: Sec. 28. Admission by third party. The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. Even if it is assumed for the nonce that the second letter came from a co-conspirator, the same is not binding on the appellant, absent evidence aliunde that he knew of and concurred with the said ransom demand. It bears stressing that when George received the second letter on September 6, 1994, the appellant had already been arrested and detained. The conspiracy forged by the appellant and his cohorts on or before September 4, 1994 had already ceased, when on the said

date, the appellant was arrested by the policemen and detained.[77] Neither is the third letter admissible in evidence against the appellant to prove that he conspired with others to demand the release of Ronie Puntuan in consideration for Christopher s freedom. The appellant and his cohorts could not have planned to demand ransom for the release of Ronie Puntuan as early as September 4, 1994, the date of the kidnapping: Ronie had not yet been arrested on this date. The appellant was arrested first, and Ronie s detention was only to follow. Furthermore, the third letter was sent to George on September 9, 1994. At that point, the appellant had already been arrested by the policemen, and was already in jail. There is no evidence that while in jail, the appellant had knowledge of and concurred with the said ransom demand. It may be reasonably inferred that the appellant s coconspirators could have decided to demand Ronie Puntuan s release as a consideration for Christopher s liberty, while the appellant was already languishing in jail. The said demand for ransom was a new and independent project of the appellant s co-conspirators, growing out of their own malice, without any a priori knowledge on the part of the appellant or his post facto concurrence therewith. Indeed, the records show that on September 9, 1994, the very day the coconspirators sent the third letter to George, Ronie Puntuan through counsel Atty. Jose Jerry L. Fulgar, also the counsel for the appellant, filed a motion with the MTC, praying that he be detained at the General Santos City Jail:

WHEREFORE, premises considered, it is most respectfully prayed that an order be please issued directing that accused Ronie Puntuan be please detained at General Santos City Jail with the instruction that the said accused be separated from his coaccused as desired by the Police Officers.[78] That the appellant plotted with his co-conspirators to demand the release of Ronie Puntuan as a condition for Christopher s liberty is too far-fetched, considering that Ronie and the appellant had the same lawyer. Ronie Puntuan himself, through his and the appellant s counsel, prayed to the court that he be transferred from Camp Fermin Lira Barracks to the General Santos City Jail. The appellant is also guilty of slight illegal detention of George under Article 268 of the Revised Penal Code. Aside from convicting the appellant of kidnapping Christopher, the trial court also convicted him of kidnapping George under Article 267 of the Revised Penal Code. But the Office of the Solicitor General contends that the appellant is guilty of another felony: slight illegal detention under Article 268 of the Revised Penal Code, because none of the circumstances enumerated in Article 267 of the Revised Penal Code is present in the kidnapping and detention of George. The prosecution may have failed to prove that the appellant and his coconspirators intended to extort ransom for George s release; however, as a matter of substantive law, the appellant may be held guilty of two separate crimes, although he and his co-conspirators kidnapped

George and Christopher on the same occasion and from the same situs. As a matter of procedural law, the appellant may be convicted of slight illegal detention under the Information for kidnapping for ransom as the former is necessarily included in the latter crime. The Court agrees with the Office of the Solicitor General. The appellant is guilty of slight illegal detention under Article 268 of the Revised Penal Code which reads: Art. 268. Slight illegal detention. The penalty of reclusion temporal shall be imposed upon any private individual who shall commit the crimes described in the next preceding article without the attendance of any of the circumstances enumerated therein. The same penalty shall be incurred by anyone who shall furnish the place for the perpetration of the crime. If the offender shall voluntarily release the person so kidnapped or detained within three days from the commencement of the detention, without having attained the purpose intended, and before the institution of criminal proceedings against him, the penalty shall be prision mayor in its minimum and medium periods and a fine not exceeding seven hundred pesos. (As amended by Republic Act No. 18). While the epigraph or title of the article mentions only slight illegal detention, kidnapping committed in connection with the lower offense of slight illegal detention is also covered by the article.[79]

The felony has the following essential elements: 1. That the offender is a private individual. 2. That he kidnaps or detains another, or in any other manner deprives him of his liberty. 3. That the act of kidnapping or detention is illegal. 4. That the crime is committed without the attendance of any of the circumstances enumerated in Art. 267.[80] The crime of slight illegal detention is consummated upon the occurrence of all the elements thereof. A day, in the last paragraph of Article 268 of the Revised Penal Code, should be understood as twenty-four hours, to be counted from the deprivation of the liberty of the victim until the cessation thereof. As Cuello Calon put it: El plazo de los tres dias de veinte cuatro horas y desde el momento de la privacion de libertad si en que esta cesare. [81] The rescue or escape of the victim within three days from his kidnapping and detention is not an exempting circumstance. The voluntary release by the offender of the victim within three days from his detention, without the offender having attained his purpose and before the institution of criminal proceedings against him for slight illegal detention, is not an exempting circumstance; it merely serves to reduce the penalty to prision mayor in its maximum and medium periods and a fine not exceeding P700.

In this case, the appellant is a private individual. George had been kidnapped and detained illegally by the appellant and his cohorts, but only for less than a day. George regained his freedom after the appellant had been arrested at the intersection of the national highway and Espina Road. There is no evidence that the appellant and his cohorts kidnapped George for the purpose of extorting ransom for his release. There is likewise no evidence that they inflicted any serious physical injuries on George, or simulated public authority, or threatened to kill him. Furthermore, there is no evidence that the appellant and his cohorts intended to detain the victim for more than three days. Although the appellant and his coconspirators kidnapped George and Christopher on the same occasion and from the same situs, the appellant is guilty of two separate crimes: kidnapping under Article 267 of the Revised Penal Code, and slight illegal detention under Article 268 of the Revised Penal Code. The appellant and his co-conspirators were animated by two sets of separate criminal intents and criminal resolutions in kidnapping and illegally detaining the two victims. The criminal intent in kidnapping Christopher was separate from and independent of the criminal intent and resolution in kidnapping and detaining George for less than three days. In the mind and conscience of the appellant, he had committed two separate felonies; hence, should be meted two separate penalties for the said crimes: one for kidnapping under Article 267 of the Revised Penal Code and another for slight illegal

detention under Article 268 of the same code.[82] The felony of slight illegal detention is necessarily included in the crime of kidnapping for ransom; thus, the appellant may be convicted of the former crime under an Information for kidnapping for ransom.[83] PENALTIES FOR THE CRIMES COMMITTED BY THE APPELLANT The crimes committed by the appellant were aggravated by dwelling,[84] the victims having been kidnapped in their house; by the use of motor vehicle,[85] the victims having been transported by the appellant from their house with the use of George s car; and by a band, the crime having been committed by the appellant and three co-conspirators.[86] However, the Court cannot consider these aggravating circumstances in determining the proper penalties for the said crimes, because the same were not alleged in the Information as mandated by Sections 8 and 9, Rule 110 of the Revised Rules of Criminal Procedure.[87] Although the said rules took effect after the commission of the crimes by the appellant, the same is favorable to the appellant; hence, should be applied retroactively.[88] The appellant is not entitled to the privileged mitigating circumstance under the second paragraph of Article 268 of the Revised Penal Code[89] because he did not voluntarily release George within three days from the kidnapping. George was recovered by the policemen at the intersection of the national highway and Espina Road.

The prescribed penalty for kidnapping under Article 267 of the Revised Penal Code as amended by Rep. Act No. 7659 is reclusion perpetua to death. There being no aggravating circumstance or modifying circumstance in the commission of the crime, the proper penalty for the said crime is reclusion perpetua, conformably to Article 63 of the Revised Penal Code. The prescribed penalty for slight illegal detention is reclusion temporal in its full period, with a range of twelve years and one day to twenty years. To determine the minimum of the indeterminate penalty, the penalty shall be reduced by one degree, prision mayor, which has a range of six years and one day to twelve years. The minimum of the indeterminate penalty shall be taken from the full range of the penalty at the discretion of the Court. The maximum of the indeterminate penalty shall be taken from the medium period of reclusion temporal, conformably to Article 64, paragraph 1 of the Revised Penal Code. Hence, the appellant shall suffer an indeterminate penalty of nine years and four months of prision mayor in its medium period as minimum, to sixteen years and five months of reclusion temporal in its medium period as maximum. CIVIL LIABILITIES OF THE APPELLANT Although the prosecution adduced testimonial evidence that the appellant and his co-conspirators ransacked the bedroom of the victims and took cash and valuables, the prosecution nevertheless failed to adduce any documentary evidence to prove the amount of the said cash and the value of the

jewelry. Hence, Spouses George and Desiree Lim are not entitled to actual damages. Under Article 2219, paragraph 5 of the New Civil Code, moral damages may be recovered. In this case, the prosecution adduced testimonial evidence that for the crimes committed by the appellant and his co-conspirators, Spouses George and Desiree suffered mental anguish, fright and serious anxiety caused by the kidnapping of George and their son Christopher. Considering the factual milieu in this case, the Court believes that the said spouses are entitled to moral damages in the amount of P100,000 for the kidnapping of Christopher, and the amount of P50,000 for the illegal detention of George. The appellant is also liable to the spouses for exemplary damages in the total amount of P50,000 for the two crimes conformably with current jurisprudence.[90] IN LIGHT OF ALL THE FOREGOING, the Decision dated September 27, 1997 of the Regional Trial Court of General Santos City, Branch 35, is AFFIRMED WITH MODIFICATIONS. Appellant Michael Pagalasan alias Mike is found guilty of kidnapping under Article 267, paragraph 4 of the Revised Penal Code and there being no modifying circumstances in the commission of the crime is hereby sentenced to suffer the penalty of reclusion perpetua. Appellant Michael Pagalasan alias Mike is found guilty beyond reasonable doubt of the crime of slight illegal detention under Article 268 of the Revised Penal Code and there being no modifying circumstances in the commission of the crime is hereby sentenced to

suffer an indeterminate penalty of from nine years and four months of prision mayor in its medium period as minimum to sixteen years and five months of reclusion temporal in its medium period as maximum. The said appellant is ordered to pay to Spouses George and Desiree Lim the total amount of P150,000 as moral damages; and P50,000 as exemplary damages in the two cases. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, and Azcuna, JJ., concur.

EN BANC [G.R. No. 132895. March 10, 2004] PEOPLE OF THE PHILIPPINES, appellee, vs. ELIZABETH CASTILLO and EVANGELINE PADAYHAG, appellants. DECISION PER CURIAM: Before us on automatic review is the Decision[1] of the Regional Trial Court of Paraaque, Branch 260, National Capital Judicial Region, in Criminal Case No. 95-86, finding appellants Elizabeth Castillo ( Castillo ) and Evangeline Padayhag ( Padayhag ) guilty of Qualified Kidnapping and Serious Illegal Detention[2] and sentencing them to death. The Information[3] charging Castillo, Padayhag and Imelda Wenceslao with the crime of kidnapping, reads: That on or about March 1, 1995, in Paraaque, Metro Manila, Philippines, and within the jurisdiction of the Honorable Court, said accused ELIZABETH CASTILLO and EVANGELINE PADAYHAG, conspiring together, confederating, and mutually helping one another, did then and there willfully, unlawfully and feloniously kidnap, carry away, and seriously detain HORACIO CEBRERO IV @ Rocky , a five years old child (sic), which kidnapping or serious detention lasted for more than three (3) days thereby depriving him of his liberty, and which was committed for the purpose of extorting ransom from the parents of the victim, to the damage and prejudice of the victim himself and his parents.

The said accused IMELDA CASTILLO WENCESLAO, without having participated in the said crime as a principal, did then and there willfully, unlawfully and feloniously participated (sic) in the execution of the crime by previous and simultaneous acts by allowing and furnishing the use of her residence where victim Horacio Cebrero IV was kept knowing him to have been taken by principal accused Elizabeth Castillo and Evangeline Padayhag without the consent of his parents. CONTRARY TO LAW. Upon arraignment on 10 May 1995, both Castillo and Padayhag initially pleaded guilty. However, on 18 May 1995, Castillo and Padayhag withdrew their plea of guilt. They entered a plea of not guilty on 3 August 1995. Imelda Wenceslao remains at large. The prosecution submitted documentary evidence and presented eight witnesses, namely: (1) Horacio Cebrero IV ( Rocky ), the victim; (2) Rosanna Baria, the victim s yaya ; (3) Luis Cebrero, the victim s father; (4) Sandra Cebrero, the victim s mother; (5) Staff Sgt. Alejandro Delena of the Philippine National Police ( PNP ); (6) Wivino Demol, a member of the Armed Forces of the Philippines ( AFP ) Intelligence Security Group, army surveillance and search team; (7) Capt. Raniel Ramiro, also of the AFP Intelligence Security Group; (8) and Staff Sgt. Manual Iglesias of the PNP. The defense presented only two witnesses: Castillo and Padayhag themselves.

The Office of the Solicitor General ( OSG ) summarized the prosecution s version of the incident in the appellee s brief, as follows: On March 1, 1995, Rosanna Baria was employed as one of the household helpers of Mr. and Mrs. Luis De Guzman Cebrero at their residence in Classic Homes, B. F. Paraaque, Metro Manila (p. 26, tsn, August 3, 1995). In the morning of said date, Femie, another housemaid of the Cebreros and Baria s relative, bathed and dressed up Rocky, the couple s six year old son and afterwards advised Baria that someone, who was also a Cebrero househelper, will fetch Rocky (p. 28, supra). At about 8:00 a.m., a tricycle arrived. On board was a woman, whom Baria pointed to in court and who gave her name as Evangeline Padayhag (p. 26, supra). Baria assisted Rocky to board the tricycle. The tricycle brought Rocky and the woman, whom Rocky pointed to in court and who gave her name as Evangeline Padayhag (p. 9, tsn, August 3, 1995), to a nearby Mcdonald s . Thereat, they were joined by another woman (p. 13, supra) whom Rocky pointed to in court and who gave her name as Elizabeth Castillo (p. 9, supra). The three proceeded to a house far from the Mcdonald s (p. 13, supra) where Rocky slept four times (p. 14, supra). At about 5:30 p.m. of March 1, 1995, Luis Cebrero arrived home from work. When his son DJ arrived, he informed his father that Rocky did not attend school. Luis Cebrero asked Baria (pp. 4-5, tsn, August 22, 1995) who told him that Rocky was fetched at home by a woman to attend a birthday party (p. 5, supra).

Informed thereof, Mr. Cebrero then called up his friends and went to the police station to report that his son was missing (p. 9, supra). At about 7:30 p.m. that night, Luis Cebrero received a telephone call from a woman saying, Ibigay mo sa akin ang ATM card mo o ang bata (p. 10, supra). Luis replied, Kailangan ko ang bata . The woman asked how much money was in his ATM and Luis replied P40,000.00. Luis then requested to talk to his son but the woman said, Hindi puwede, malayo dito ang anak mo at tatawag na lang uli ako (p. 10, supra). Luis Cebrero decided to connect a tape recorder to his phone. On March 2, 1995, at about 7:20 p.m., his phone rang. The caller was a woman telling him, Bigyan mo ako nang isang million , to which he replied, Hindi ko kayang ibigay ang isang million . The caller told Luis that she will call back later on (pp. 11-12, supra). The Cebreros informed the authorities that two of their maids were hired from an agency, the General Services, Inc. at Paraaque. Major Ordoyo of the Intelligence Security Group, Philippine Army (PA) sent Sergeants Rempillo and Iglesias to the agency to verify this. The two were furnished by General Services, Inc. with the personal data of the maids named Elizabeth Castillo and Jasmine Nuez (pp. 1314, tsn, March 12, 1996). When the caller did not contact Luis Cebrero the following day, March 3, 1995, he instructed his wife to raise some money. From the bank, Mrs. Cebrero withdrew P800,000.00 in P1,000.00 denomination. The bank

provided Mrs. Cebrero a list containing the serial numbers of the money withdrawn (pp. 15-16, supra). On March 4, 1995, at about 9:30 p.m., Luis Cebrero received a telephone call. The caller was a woman who asked, Ano nasa iyo na ba ang pera ? Luis answered, Hindi ko kayang ibigay sa iyo ang halagang iyon, kalahati lang ang kaya kong ibigay . The caller said, Sige, puede na yan (p. 17, supra) and instructed Luis Cebrero to be in Paco, Obando, Bulacan, alone, at about 2:00 a.m.; that at Paco, Obando, Bulacan, is a Farmacia Dilag and beside it is a street which Luis must follow until he reaches the church called Sabadista where he should drop the money (p. 18, supra). Luis Cebrero received another call on that same night instructing him to stop in front of the Farmacia Dilag and walk on the street beside it going to a chapel and to drop the money on the chapel s terrace (p. 19, supra). Informed of the place for the pay-off, on March 4, 1995, Major Ronnie Eleazar, Commanding Officer of the Intelligence Security Group (ISG), Philippine Army, briefed his men on Rocky s kidnapping and assigned them their respective tasks in the stakeout they will undertake around the pay-off area (pp. 6-7 tsn, January 30, 1996). At about 11:00 p.m. of March 4, 1995, Sgt. Alejandro Delena and his ISG team, proceeded to Obando, Bulacan for the stakeout. After positioning themselves near the stakeout site, a car arrived and stopped in front of the chapel. The man alighted and placed a bag in front of the chapel and immediately left (p. 10, supra). After about forty

(40) minutes, two women appeared, proceeded to where the bag was dropped. On seeing the bag, the women laughed and left. After about two (2) minutes, the two women returned, picked up the bag and immediately left (pp. 11-12, supra). The ISG team searched the area around the drop-off place but the two women were nowhere to be found (p. 17, supra). In court, Sgt. Delena pointed to and identified Castillo and Padayhag as the two women he saw in front of the chapel in Obando, Bulacan and who, later on, picked up the bag dropped by Luis Cebrero (p. 12, supra). Puzzled by the sudden disappearance of the two women, Sgt. Delena and his team remained at the stake-out area. The team befriended the residents of the place, one of whom was a certain Joselito Torres who claimed to be the former boyfriend of Elizabeth Castillo whom he recognized from the picture shown to him by Sgt. Delena. Torres informed the ISG team that Castillo had already left for Mindanao. Sgt. Delena immediately communicated the information, including the address of Gigi Padayhag in Navotas, to his commanding officer (p. 19, supra). At about 9:00 p.m. of March 5, 1995, Luis Cebrero was at home when a tricycle stopped in front of his house. Somebody knocked at the door and when Luis Cebrero opened it, he saw his son, Rocky (pp. 23-24, tsn, August 22, 1995). On March 12, 1995, an ISG team headed by Sgt. Manuel Iglesias was dispatched to Navotas to locate Gigi Padayhag at the address furnished by Sgt. Delena. The team

found Padayhag who upon being apprised of the kidnapping of Rocky Cebrero, voluntarily went with the ISG team to Camp Crame to clear her name (p. 14, tsn, May 22, 1996). Upon the instruction of the ISG, Sgts. Delena and Demo were ordered to proceed to Dipolog City to look for Castillo (pp. 20-21, tsn, January 30, 1996). Sgt. Delena arrived in Dipolog City on March 13, 1996. He was briefed and shown the area where Castillo could be found (p. 23, supra). When Sgt. Demol arrived in Dipolog City, he and Sgt. Delena coordinated with the PNP stationed at Barangay Tulong, Rizal, Zamboanga del Norte (p. 41, tsn, March 12, 1996). Thereat, Sgt. Demol requested for the assistance of persons from Barangay Mitimos, where Castillo was believed to be hiding. The PNP assigned them two barangay officials of Mitimos who, when shown the picture of Castillo, said that the woman in the picture is in Barangay Mitimos (p. 46, supra). Upon the request of the police, the two barangay officials conducted a daily surveillance on Castillo. On March 18, 1995, Sgt. Demol reported to the ISG headquarters that Castillo was in Barangay Mitimos. In turn, Sgt. Demol was advised that ISG will be sending him, through JRS Express, copies of the list of serial numbers of the bills used as pay-off and a DOJ subpoena (p. 54, supra). Upon receipt of said documents, Sgt. Demol applied for a search warrant (p. 58, supra) which was granted by the Dipolog City Regional Trial Court on March 21, 1995 (p. 57, supra). The search warrant was shown to Elizabeth Castillo and her father who

signed the same (pp. 60-61, supra). The search yielded a black bag placed in a carton inside the house (pp. 61-62) containing money in P1,000.00 bills in the total amount of P277,000.00 (p. 68, supra). The serial numbers of the recovered money bills appeared in the list furnished to Sgt. Demol by ISG (pp. 88-89, supra). Thereafter, the money was deposited with the Regional Trial Court at Dipolog City (p. 89, supra). Prosecuted for kidnapping and serious illegal detention, Evangeline Padayhag and Elizabeth Castillo initially pleaded guilty upon arraignment and were each meted the penalty of life imprisonment (p. 4, tsn, August 3, 1995). The trial court, however, on motion based on improvident plea, ordered the withdrawal of the plea of guilty and directed the re-arraignment of Castillo and Padayhag. After trial, Castillo and Padayhag were convicted of kidnapping and serious illegal detention as charged.[4] Appellants maintain their innocence and present their own version of the events in their brief, as follows: 1. Accused ELIZABETH CASTILLO was a househelper at the Cebrero household from December 1993 to January 1995. She did the cleaning of the house, laundry of dirty clothes, and also took care of Rocky, son of Luis and Sandra Cebrero; 2. Accused Evangeline Padayhag, also a househelper, is a friend of Elizabeth Castillo. The two met sometime in 1994 at Paco, Ubando, Bulacan, when Padayhag worked in

the household of Julito Lawagon, the latter being the neighbor of Helen Lim, Elizabeth Castillo s sister; 3. Upon assumption from work, Castillo was promised by Mrs. Sandra Cebrero a monthly salary of one thousand two hundred pesos (P1,200.00); 4. Castillo, however, was never given compensation during her entire employment in the Cebrero household; 5. Castillo was also not treated nicely by the Cebrero spouses. When something gets lost in the house, she was always the one being blamed, although the children were the ones getting the things. Besides, they say bad words against her. Thus, she has no other choice but to leave her work; 6. Castillo had been consistently demanding from the Cebrero spouses her unpaid wages for one year; but her demands remained unheeded; 7. Having reached only elementary education, Castillo believed that the only effective way for her to claim back her unpaid wages is to use Rocky, son of the Cebrero Spouses; 8. On 1 March 1995 Castillo called Padayhag, telling the latter that her boyfriend is sick. At that time, Padayhag was already working at Jelaya St., B.F. Homes, Paraaque under the employ of Lulu Sablan. Castillo fetched Padayhag. The two, however, did not go to see Padayhag s boyfriend but instead they went to a playground;

9. Castillo then instructed Padayhag to fetch Rocky from his house at Cesar Virata St., B.F. Homes, Paraaque, Manila. When Padayhag asked why she wanted to see Rocky, Castillo answered that she missed the boy. Padayhag obliged to the request, knowing that the latter would not do any harm to the boy; 10. It was only the first time that Padayhag saw Rocky; 11. She brought the child to a market at B.F. Paraaque, where Castillo was waiting. The three went on a stroll. Thereafter, they went to the house of Imelda Wenceslao, Castillo s sister, at Bagong Barrio, Caloocan City. Castillo noticed that Rocky had a fever, so she requested Vangie to buy a medicine; 12. Padayhag was not told by Castillo as to when the latter would return the boy. Padayhag did not sense anything wrong with what had happened as she believed that Castillo only took Rocky for a stroll; 13. Imelda Wenceslao asked why they brought a child along with them. Castillo answered that she just wanted to see the boy. Wenceslao then asked if they asked permission from the parents, and Castillo answered no ; 14. At night, Castillo talked to Mr. Luis Cebrero over the phone to inform him that Rocky was with her. Mr. Cebrero told her not to harm the boy. No threat or demand for ransom was ever made by the accused to the Cebrero spouses. She never asked Mr. Cebrero how much money he had in the bank;

15. The following day, 2 March 1995, Castillo called Mr. Cebrero again to tell him that she could not yet return Rocky because he still had a slight fever. She also told Mr. Cebrero: Hindi nyo ako sinusuwelduhan . He asked her: Magkano ba ang kailangan mo? She did not answer. Then Mr. Cebrero said: May pera ako rito, kalahating milyon. At that moment, Castillo hanged-up the phone; 16. Castillo denied in her Sinumpaang Salaysay dated 25 August 1999, attached as Annex A and made an integral part hereof, that she demanded one million (P1,000,000.00) from the Cebrero spouses; 17. On the evening of 4 March 1995, when Castillo called Mr. Cebrero, he asked them where they were. The accused told him that they were in Paco, Ubando, Bulacan, near a Protestant Church. Mr. Cebrero then said: Pupunta ako riyan bandang 2:00 ng madaling araw (March 5, 1999) na may bitbit na pera at ilalapag ko ito sa may simbahan ; 18. On 5 March 1995, at around 4:30 a.m. Castillo and Padayhag went out to buy pandesal . They noticed that at a post near a Church, a dog was trying to pull a black plastic bag. They picked it up and brought it home. When they opened it, they found five bundles of money, in P1,000.00 denomination; 19. At about 9:00 p.m. of the same day, Mr. Cebrero heard a tricycle stop in front of their house. Someone knocked at the door, and when he opened the door, he saw Rocky;

20. On 11 March 1995, Capt. Raniel Ramiro, Intelligence Security Group of the Philippine Army, together with his men, after coordinating with Caloocan Police, arrested Evangeline Padayhag at her residence at Dagat-Dagatan, Caloocan City. The military men did not have a warrant of arrest at this particular operation; 21. The military were civiliandressed. They pretended to be Padayhag s cousins who came from abroad, and they invited her to a birthday party . However, they brought her to Fort Bonifacio for interrogation. It was only then that Padayhag learned that her companions were military men; 22. At Fort Bonifacio, the police coerced Padayhag to confess to the crime, threatening her: Pag hindi ka pa umamin, kami na mismo and bibitay sa iyo . Padayhag, however, did not confess to the commission of the crime. She was then brought to Camp Crame at Quezon City on that same date; 23. The following day, 12 March 1995, during the custodial investigation, a certain Major Meneses was exerting pressure on Padayhag to reveal where the P500,000.00 is. She told Major Meneses: Wala akong pera na ganoon kalaki. He said to her: Pag hindi ka umamin, papatayin na kita talaga! Her answer was: Patayin nyo man ako, hindi ako aamin dahil wala akong ganoong kalaking pera. Major Meneses then slapped Padayhag and hit her with a stool on her leg;

24. Major Meneses also threatened Padayhag that if she would not confess to the crime, he would submerge her on a drum. They forcibly brought her to a toilet room. She saw there two big drums. Major Meneses then told her: Iyong mga hindi umamin, nilulublob namin dito sa drum . Padayhag shouted. Thereafter, someone knocked at the door and said: Pakawalan n yo na iyan dahil marami nang tao . They brought her out of the room and handcuffed her; 25. SPO1 Larry Pablo was likewise threatening Padayhag: Pag hindi ka pa umamin, ihuhulog na kita sa bintanang ito! (They were on the third floor of a building) Alam mo ba kung ilan na ang naihulog namin diyan? Panlabindalawa ka na sa ihuhulog namin diyan! ; 26. During the custodial investigation, Padayhag was not assisted by a counsel, nor has she waived her right to counsel. She was coerced by the police into signing an extrajudicial confession without even explaining to her the contents thereof; 27. Atty. Eranio Sedillo only arrived one hour (1 hr.) after Padayhag had already signed the questioned extrajudicial confession; 28. Elizabeth Castillo was arrested at Mitimos, Rizal, Zamboanga del Norte on or about 21 March 1995. Police officers came to her house, and when they informed her that they were looking for the money, she voluntarily gave it to them; 29. The approximate amount of money taken by Castillo was only twenty thousand (P20,000.00) She

returned the rest of the money to the police who arrested, her; 30. Castillo vehemently denied in her Sinumpaang Salaysay (par. No. 14) that she returned only P227,000.00; 31. Castillo and her escorts were fetched in Manila by a van. Inside the van, they blindfolded her. They removed her blindfold when they reached Camp Crame; 32. Major Meneses and SPO1 Larry Pablo investigated her. She was slapped by Pablo, forcing her to admit where the money is; 33. During the investigation, Pablo poked a gun on her, then forced her to write what he would say to her. He instructed her to write: Na kapag hindi ko isasauli ang lahat ng pera ay pwede n yo na akong patayin . Castillo followed the instructions because of fear.[5] In an 11-page Decision, of which nine pages were devoted to the recital of facts, the trial court found the testimonies of the prosecution witnesses more credible and gave no weight to Castillo and Padayhag s defenses. The trial court convicted appellants on 17 December 1997 and imposed on them the death penalty, thus: Originally, both accused pleaded guilty to the offense and were meted the penalty of life imprisonment. However, shortly thereafter, they moved to withdraw their plea claiming it was precipitate, which the court allowed and proceeded with a full-blown trial.

Accused Elizabeth Castillo demanded money from Rocky s parents for the release of the latter. She told his father to bring the money to Obando Bulacan. The Court can only imagine the pain, worry, fear and anxiety of the boy s parents while their youngest son was under detention. Ransom is money, price or consideration demanded for the redemption of a captured person or persons, a payment that releases from captivity (Corpus Juris Secundum 458). The testimony of Elizabeth Castillo that she did not know about the money cannot be given weight. Two hundred Seventy Seven Thousand (P277,000.00) Pesos was found among her things, the bills bearing the same serial number as the money paid to her. The court has taken a hard look in determining the liability of Evangeline Padayhag as it seems that her only participation in the crime was picking up the boy from his house. Although she did not get part of the ransom the fact is that she fully and directly cooperated and did her part to carry out the resolution of her co-accused. Under these facts there was conspiracy to extort ransom. People versus Kamad Akiran, 18 SCRA 239. The Court is convinced that the prosecution has established the guilt of the accused beyond reasonable doubt. WHEREFORE, ELIZABETH CASTILLO and EVANGELINE PADAYHAG are sentenced to suffer the supreme penalty of death. Further, they are hereby ordered to pay jointly and severally the sum of Five Hundred

Thousand (P500,000.00) Pesos as moral damages and Five Hundred Thousand (P500,000.00) Pesos as exemplary damages plus costs of litigation. SO ORDERED.[6] Appellants seek the reversal of their conviction by raising the following assignments of error: I THE TRIAL COURT ERRED IN MISAPPRECIATING (SIC) THE FACTS OF THE CASE. II THE TRIAL COURT ERRED IN CONCLUDING THAT THERE WAS CONSPIRACY TO EXTORT RANSOM IN THIS CASE. III THE TRIAL COURT ERRED IN CONSIDERING THE UNCOUNSELLED CONFESSION OF EVANGELINE PADAYHAG. IV THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY IN THE CASE AT BAR.[7] We affirm the trial court s judgment convicting Castillo. However, we acquit her co-accused Padayhag. To sustain a conviction for Kidnapping and Serious Illegal Detention under Article 267 of the Revised Penal Code,[8] the prosecution must establish the following: (1) the offender is a private individual; (2) he kidnaps or

detains another or in any other manner deprives the victim of his liberty; (3) the act of kidnapping or detention is illegal; and (4) in the commission of the offense any of the following circumstances is present: (a) the kidnapping or detention lasts for more than three days; (b) it is committed by simulating public authority; (c) serious physical injuries are inflicted on the victim or threats to kill are made; or (d) the person kidnapped or detained is a minor, female or a public officer.[9] Appellant Castillo s Liability Castillo asserts that the victim s parents did not pay her wages when she worked as a maid of the victim s family.[10] She claims that it was this injustice, her educational level and her ignorance of the law, which impelled her to take Rocky. She faults the trial court for refusing to consider this. Castillo is mistaken. Whether or not her employer failed to pay her salary is irrelevant. No amount of perceived injustice can serve as justification for any person to retaliate through the commission of another crime. The trial court was therefore correct in disregarding Castillo s claim that Rocky s parents committed injustice on her. Castillo s claim of injustice cannot justify in any way her demand for ransom. Ransom is money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity. [11] Thus, even if she had a right to demand payment of her unpaid wages, the money she actually demanded and eventually received, is still ransom.

Castillo s reliance on her low educational level is similarly unavailing. The penalty for kidnapping for ransom is the singular and indivisible penalty of death. This bars the application of any alternative, mitigating or aggravating circumstance.[12] Mr. Cebrero admitted that he was unable to identify his son Rocky s abductors. De Lena and Iglesias, the police officers who did the stake-out during the pay-off, testified that the two women suddenly disappeared after retrieving the plastic bag containing the ransom. The police officers inability to explain how two simple maids managed to give 5 carloads of police officers the slip severely discredits their account of what happened that day. Rocky s testimony, however, leaves no room for doubt. Only six years of age when he testified, Rocky was candid and direct in his recollection, narrating events as a young boy saw them happen, thus: COURT Alright. Rocky, when Vangie went to fetch you from your house. A Yes.

COURT You took a tricycle. A Yes.

COURT Where did you go? A I do not know.

PROS. FONACIER Your Honor, please, may we request that the rule on evidence be not strict on this boy. The witness is of tender age. ATTY. SOLUREN There is no strict implementation as to what the Honorable Prosecutor stated. There is no strict implementation of the rules of court. In fact, we are very lenient but the fact is, the child said he does not know. But the question is he was giving the answer to this witness. COURT

Q Malayo ba sa McDonald o malapit. Sinabi mo kanina, nagpunta kayo sa bahay nila? A Yes.

Q Iyong bahay na pinuntahan ninyo, malayo sa McDonald? A Malayo.

Q Anong sinakyan ninyo? A Hindi ko alam.

Q Noong dumating kayo doon sa bahay na hindi ninyo, bahay, natulog ka ba doon? A Yes.

Ask another question. Q Ilang beses ka natulog doon? Q Rocky, nang sumakay kayo ni Vangie sa tricycle, nakita mo ba si Beth Castillo? A Nakita namin si Beth sa McDonalds. Malapit sa amin. Q Rocky, nakita ninyo si Beth. Ngayon, tatlo na kayo, ikaw, si Beth at si Vangie? A Yes. Q Sino ang nagpapakain sa iyo? Q Rocky, noong magkasama na kayong tatlo, saan kayo nagpunta? A Nasundo namin si Beth. A Vangie. A 4 sleeps.

Q Pinakakain ka ba sa bahay na pinuntahan ninyo? A Yes.

Q Ano ang pinakakain sa iyo? A Champorado and fish.

Q Sino si Vangie. Puede mo bang ituro sa amin? PROS. FONACIER The witness is pointing to accused Evangeline Padayhag as the Vangie he was referring to.

Q Noong nasundo na ninyo si Beth, saan kayo nagpunta? A Sa bahay nila.

Q Kaninong bahay? A Hindi ko alam.

Q Doon sa 4 sleeps mo sa bahay na iyon, saan ka pa nila dinala? A Pinauwi na ako.

Q Whom did Vangie fetch, Miss witness? A Si Rocky po, mam.

Q Sinong kasama mo noong pinauwi ka? A Wala, pero mula sa McDonald, naiwan na ako sa tricycle hanggang sa bahay.[13] Unshaken by rigorous crossexamination, Rocky s testimony would have been more than enough to convict Castillo. The testimony of a single witness, if credible and positive, is sufficient to convict.[14] But there is more. The evidence on record amply supports the factual findings of the trial court. Both the evidence of the prosecution and the defense establish the commission of the crime. Castillo admitted she instructed Padayhag to fetch Rocky on 1 March 1995: Q And as a result of sitting at the palaruan, Miss witness, what happened next? A Pinasundo ko si Rocky kay Vangie, mam. Q And why did you ask Vangie to fetch Rocky, Miss witness? A Kasi po naalala ko pagnamamalengke ako at kasama ko si Rocky, lagi po kaming pumupunta sa palaruan, mam Q And then what happened next, Miss witness? A Sinundo po ni Vangie si Rocky, mam.

Q And after Rocky fetched by Vangie, what happened next? A Ipinasyal po namin si Rocky, mam.[15] (Emphasis supplied) She also testified that she had no permission from Rocky s parents to take the child with her: T S Saan kayo nananghalian? Doon po sa bahay ng kapatid ko.

T Noong dumating kayo doon, ano naman ang sinabi ng kapatid mo sayo? S Ang sabi niya, bakit daw may kasama kaming bata. T Ano naman ang naging sagot mo kay Imelda? S Sabi ko pinasyal lang po namin.

T Hindi tinanong ni Imelda kung bakit pinasyal nyo ang bata, kung may paalam yong bata doon sa kanyang magulang? S Tinanong po.

T Ano naman ang sinabi mo sa kanya? S Sinabi ko gusto ko lang makita si Rocky. T Pero, ano ang sinabi mo noong tinanong kung may paalam ang bata sa kanyang magulang, anong naging sagot mo sa katanungan niya?

S Ang sabi niya baka daw pagalitan kami. T Ano naman ang naging sagot mo? Your Honor, may we asked (sic) the witness to be more responsive with her answer. COURT What was the question, please? Stenographer: (Reading back the question) T Noong tinanong ni Imelda kung may paalam ang bata sa mga magulang, ano ang sagot mo? S Ang sabi ko po hindi, walang paalam. T Ano ang naging reaction ng iyong kapatid na si Imelda? S Bakit daw hindi nagpaalam.[16] (Emphasis supplied) Castillo testified that, during the period of Rocky s detention she called Rocky s father, Mr. Cebrero, to wit: Q What happened next Miss witness? A Tinawagan ko po ang mga Cebrero. Q Who of the Cebreros did you call up? A Si Luis Cebrero po, mam.

A Pagtawag ko po kay Mr. Luis Cebrero tinanong po niya sa akin kung nasaan si Rocky, mam. Q And what is your reply? A Sinabi ko po na nandidito sa amin, mam. Q After that what happened next? A Nagalit po si Luis Cebrero sa akin, mam. Q And what did you do when Luis Cebrero got angry? A Tinanong po niya ako kung magkano ang kailangan ko, mam. Q And what else did he say, Miss witness? A Sinabi po niya sa akin na huwag ko raw pong sasaktan si Rocky, mam. Q And then what else? A Pinipilit po niya ako na kung magkano daw ang kailangan namin na pera, pagkatapos hindi ko na po sinagot ang tanong niya, mam. Q And then what happened next? A Binaba ko na po iyong telepono, mam.[17] (Emphasis supplied) The number and time of these calls coincided with the calls Mr. Cebrero received from Castillo telling him that she had Rocky and instructing him to pay the ransom for Rocky s release. Additionally, Castillo by her own admission placed herself at the time

Q What happened next after that?

and place where the pay-off occurred: T Sa pangatlong araw naman, nandoon ka pa rin ba at saka si Rocky? S T Opo.

T Saang parte ka ng Bulacan pumunta? S Malapit po sa may Hindi ko na po matandaan yong pinuntahan namin. T Malapit sa may?

Sa bahay ni Imelda? S Papunta na po ng Obando, pero hindi nakarating doon. T Saan ka pumunta doon para maghanap ka ng trabaho? ATTY. SOLUREN Already answered, Your Honor, that the place papunta ng Obando pero hindi pa nakakarating sa Obando. STATE PROSECUTOR FONACIER That is why I am asking.

S Nagpaalam po ako sa kapatid ko na maghahanap muna ako ng trabaho. T Si Vangie, saan naman siya noon? S Nandoon pa rin sa Dagat-dagatan po. T Si Rocky naman?

S Andoon po sa bahay ng kapatid ko. T Mga anong oras yon na nagpaalam ka na maghanap ng trabaho? S Umaga po ako nagpaalam.

COURT What place is that? Witness may answer. T S Anong detalyadong lugar? Sa may Julo po. Ano yong Julo? Malapit po iyan sa Obando

T Kung ganoon umalis ka ng umagang yan? S T S T S Opo.

T Saan ka naman pumunta? S Naghanap po ako ng trabaho. Saan ka naghanap ng trabaho?

COURT Saang bayan ng Bulacan yon? Sa may bandang Bulacan po. S Yon lang po ang alam ko.[18] (Emphasis supplied) Beyond a feeble excuse that she was in Obando in order to look for T Sa may Paco Obando, doon ka ba pumunta? S Hindi po.

employment, Castillo provides no other plausible reason why her presence at that place, at such an opportune time should not be taken against her as additional evidence of her guilt. To attribute this to coincidence, as Castillo would probably have us do, taxes one s credulity. The same can be said of her inability to explain how the ransom money was found in her possession when she was caught by policemen in Dipolog. Castillo plainly contradicts herself on this point. In Castillo s brief, she admitted going to the payoff site on the day Mr. Cebrero was told to leave the ransom for Rocky s release. Castillo admitted she found at the site a black plastic bag filled with money and brought it home.[19] However in her testimony before the trial court, she maintained that the first time she saw the same plastic bag was when it mysteriously appeared in her luggage when she went to Dipolog: Q And thereafter, Miss witness, what happened next? A Hinanap ko iyong mga kagamitan ko po, mam. Q And for what purpose you looked at your things, Miss witness? A Para ayusin po iyong mga kagamitan ko para makapagpahinga na po ako, mam. Q What happened next, Miss witness? A May nakuha ako na isang plastic bag sa loob ng aking bag, mam.

Q And what is this plastic bag about, Miss witness? A May laman po na pera, mam.

Q And how much money was there in that plastic bag, Miss witness? A Hindi ko po alam.

Q And what did you observe about the money in the plastic bag? A Nagulat po ako, mam.

Q And why were you surprised? A Hindi ko po kasi lubos na maisip na ang bag na aking dala dala ay may laman na isang malaking halaga na pera, mam. Q And what did you do after learning that there was money inside your bag, Miss witness? A Pinabayaan ko na lang po at inaantay na may kumuha na lang po niyon sa akin mam.[20] (Emphasis supplied) Castillo insists that she took Rocky simply because she missed him, and wanted to spend time with him. At the same time, in her brief Castillo claims that what spurred her to take Rocky was her desire to get her unpaid wages from the Cebreros.[21] Castillo also points out that Rocky came along freely with them, was not harmed, and was even cared for during his detention. This argument is pointless. The essence of kidnapping is deprivation of liberty. For kidnapping to exist, it is not necessary that the offender kept the victim in an enclosure or treated him

harshly.[22] Where the victim in a kidnapping case is a minor, it becomes even more irrelevant whether the offender forcibly restrained the victim. Leaving a child in a place from which he did not know the way home, even if he had the freedom to roam around the place of detention, would still amount to deprivation of liberty. For under such a situation, the child s freedom remains at the mercy and control of the abductor. Next, Castillo explains that she called Mr. Cebrero not to ask for ransom but to tell him that Rocky was with her and unharmed. Castillo admitted that Mr. Cebrero pleaded with her not to harm Rocky. Castillo failed to explain, however, why she did not inform Mr. Cebrero of their exact whereabouts so that Mr. Cebrero could fetch Rocky. Her failure to inform Mr. Cebrero clearly shows she kept Rocky in detention considering she called Mr. Cebrero several times while she had physical control over Rocky. Castillo s explanation that she decided to return Rocky only when he was no longer sick is also implausible. In the first place, she failed to explain why she did not return the child the moment she found out he was sick. That would have been the more prudent course of action at that time. However, one day after the pay-off on 4 March 1995, Rocky suddenly appeared by himself at the Cebreros home on 5 March 1995. Any reasonable person would conclude that the pay-off and the return of the child were related events. Castillo would have us attribute this to coincidence.

Castillo would also have us believe that what prompted her sudden departure for Dipolog, where she was eventually captured, was her inability to find employment in Manila. And yet Castillo does not explain why she tried to bring Padayhag along with her to Dipolog. Finally, Castillo points out that the prosecution coached Rocky s testimony. True, Rocky admitted he did not know the contents of the document he signed in front of the fiscal.[23] Rocky also stated that he was told to testify that Padayhag forced him to go with her, and finally, that he must accuse both appellants as his abductors.[24] These admissions, damaging as they may sound, are of little use to appellants. The reason is simple. The facts to which Rocky s testimony pertains to are the very same facts Castillo herself admitted on the witness stand. Even if we were to discredit Rocky s testimony entirely, the facts of his kidnapping stand proven by no less than Castillo s own admission on the witness stand and in her brief. With the evidence Castillo s own testimony established, the prosecution s witnesses did little more than corroborate what Castillo herself had admitted. Since Castillo admitted in open court that she instructed Padayhag to fetch Rocky even without the parents permission, we find her explanations futile. Her allegations of torture and of signing a sworn statement without counsel are useless. After claiming to have been tortured into making her sworn statement, logic would have it that Castillo should have debunked the contents of that statement through her testimony.

Instead, she freely and voluntarily recounted events as she narrated them in her sworn statement. Moreover, there is no allegation that the trial court decided her guilt based on her sworn statement. The trial court based its decision on the testimonies of all the witnesses, including Castillo s. In sum, the prosecution has established beyond reasonable doubt Castillo s guilt. Appellant Padayhag s Liability The same cannot be said of Padayhag. Our review of the evidence on record shows that the prosecution failed to prove Padayhag s guilt beyond reasonable doubt. We reiterate the doctrine that an appeal in a criminal case opens the entire case for review on any question including those not raised by the parties.[25] This becomes even more imperative in cases where the penalty imposed is death. Padayhag s sole involvement in this entire episode is her act of fetching Rocky and bringing him to where Castillo was waiting for them. Padayhag then went strolling with the two, went to the house of Castillo s sister together with Castillo and Rocky, and then later left the house. From this fact alone, the prosecution would have us rule that Padayhag acted in conspiracy with Castillo. The prosecution contends that without Padayhag s help, Castillo could not have abducted Rocky. We are not persuaded.

There must be positive and conclusive evidence that Padayhag acted in concert with Castillo to commit the same criminal act. To hold an accused guilty as a coprincipal by conspiracy, there must be a sufficient and unbroken chain of events that directly and definitely links the accused to the commission of the crime without any space for baseless suppositions or frenzied theories to filter through.[26] Indeed, conspiracy must be proven as clearly as the commission of the crime itself.[27] Conspiracy is established by the presence of two factors: (1) singularity of intent; and (2) unity in execution of an unlawful objective. The two must concur. Performance of an act that contributes to the goal of another is not enough. The act must be motivated by the same unlawful intent. Neither joint nor simultaneous action is per se sufficient indicium of conspiracy, unless proved to have been motivated by a common design.[28] Padayhag s act of fetching Rocky is not conclusive proof of her complicity with Castillo s plan, a plan Padayhag did not even know. Both appellants testified that Padayhag met Castillo only because Castillo told Padayhag that Padayhag s boyfriend was sick. It was precisely on the pretext that they were to visit Padayhag s boyfriend that the two met. When they met, Padayhag realized that Castillo had deceived her: Q Why? (sic) Elizabeth Castillo fetched you on February 28, 1995 and why did you decide to leave your employment?

A Kasi sabi po niya sa akin ang boyfriend ko raw ay maysakit, sir. Q And could you tell us who is that boyfriend of yours? A Si Jessie Mercader po, sir.

sick, you did not actually go and see your boyfriend? A Opo, sir.[29]

Q And what is the address of Jessie Mercader, at that time, February 28, 1995? A Sa Caloocan City po, sir.

Q And you said he was sick. What was his sickness? ATTY. SOLUREN Your Honor, that is misleading. COURT Reform your question. Q Madam witness, you said that you were informed that your boyfriend was sick. Did you go and see your boyfriend? A Sumama po ako kay Elizabeth Castillo pero hindi na po kami natuloy pumunta doon, sir. Q For what reason you did not go? A Hindi po sinabi sa akin ni Elizabeth Castillo, sir. Q So, you did not come to find out what was the sickness of your boyfriend? A Hindi na po sir.

After the two spent the day together, Castillo beseeched Padayhag to fetch Rocky citing as reason her love for the child and a desire to spend time with the boy. Padayhag is a young lass from the province who only finished Grade Two. Padayhag was thus easily misled by the more worldly Castillo. Padayhag s testimony reveals her naivet: COURT Q Ano ang sinabi sa iyo bakit mo susunduin ang bata? A Namimiss na raw po niya iyong bata at nais niyang makita, Your Honor. COURT Tapos ikaw ang pinasundo niya doon sa bata? A Opo, Your Honor.

COURT Tapos noon dalhin sa Caloocan, ano pa, sinabi pa rin niya namimiss niya ang bata ganoon uli ang sinabi niya sa iyo? A Wala na po siyang sinabi sa akin, Your Honor. COURT

Q Are we made to understand, madam witness, when you left your employer on 28 February 1995 for the reason that your boyfriend was

Hindi ka ba nakahalata na may mali doon sa pangyayaring iyon?

A Ang pagkakaalam ko po ay ipapasyal lamang niya ang bata, Your Honor. Q Sa Caloocan? A Opo, Your Honor.

A Hindi ko pa matandaan, Your Honor. COURT Pero sabi mo kanina ay pitong buwan ka doon? A Opo pitong buwan ako roon pero hindi ko po matandaan kung anong buwan, Your Honor. ATTY. SOLUREN She only finished Grade II, Your Honor. COURT

COURT Tapos umalis ka na pagkatapos ninyong kumain doon ng kapatid niya? A Opo, Your Honor.

COURT Ipinasyal ba niya ang bata? A Hindi ko na po alam kasi umalis nga po pagkatapos namin kumain, Your Honor. COURT A Kailan niya sinabi sa iyo na ibabalik ang bata? A Wala po siyang sinabi kung kailan, Your Honor. COURT Ganoon ba ang alam mo sa pamamasyal? A Siya naman po ang nagyaya, Your Honor.[30] Her ignorance and susceptibility to confusion becomes more evident in the following exchange: COURT Kailan ka ba umalis kay Mr. Julito Luwagon? Opo, Your Honor. COURT Enero, Pebrero, Marso, Abril, Mayo, Hunyo at Hulyo tama ba iyon? A Opo, Your Honor. Yes I know it but she would know that she works for seven (7) months. Alam mo ba na December 1994 ka nagsimula mangamuhan kay Julito Luwagon?

COURT Papaano nangyari noong Enero 1995 ikaw ay nagtratrabaho na kay Lulu Sablan? A Itinuro po sa akin ni Elizabeth Castillo na mag-apply ng trabaho sa may BF Homes, Your Honor. COURT Kailan kayo nagkita nitong si Elizabeth Castillo?

A Noong January lang po, Your Honor. COURT Saan kayo nagkita? A Pinaalis niya po ako doon sa pinagtratrabahuan ko sa may Dagat Dagatan, Your Honor. COURT Alam mo ba kung ilang buwan mayroon ang isang taon? A Hindi ko po alam, Your Honor.

worldly peers. It is clear that she acted with the full belief that Castillo was doing nothing wrong. Whatever moved her to do what Castillo asked of her is up for speculation. What matters is that her motivation in fetching Rocky was not to kidnap the boy. To impose criminal liability, the law requires that there be intentional participation in the criminal act,[32] not the unwitting cooperation of a deceived individual. In its brief the prosecution itself cites that any inquiry as to the liability of an individual as a conspirator should focus on all acts before, during and after the commission of the crime.[33] We have done precisely that, and it is precisely why we rule for her innocence. After her stroll with Castillo and Rocky, she left when Castillo brought the boy to her sister s house in Caloocan.[34] She never visited nor contacted Castillo afterwards. She remained at her house and refused to go with Castillo when the latter suddenly tried to coax her to go to Dipolog. None of the money used as ransom was found in her possession. Her involvement in the pay-off was never established. The testimony of two prosecution witnesses, Sgt. De Lena and Sgt. Iglesias, claiming that Padayhag was with Castillo when the latter picked up the ransom in Obando, is contradicted by Castillo s admission in open court that she brought along a certain Mila and not Padayhag.[35] In addition, the testimonies of these two police officers suffer from their failure to explain how they suddenly lost track of the two women who took the ransom in front of their very eyes.

COURT Pero alam mo ang mga buwan, Enero, Pebrero.. alam mo iyon? A Opo, Your Honor.

COURT Sige nga sabihin mo nga sa akin kung anu-ano ang mga buwan? A Enero, Pebrero, Marso, Abril, Mayo, Hunyo, Hulyo, Agosto, Setyembre, Oktubre, Nobyembre at Disyembre po, Your Honor.[31] Padayhag s confusion in the way she answered the questions propounded to her only highlights the fact that she was not aware of Castillo s plans and was vulnerable to the latter s manipulation. Her straightforward and wide-eyed admission of facts that incriminate her demonstrate a level of honesty that can only be found in those who do not know the art of deceit. Far from a cold and calculating mind, Padayhag strikes us as one whose innocence often leaves her at the mercy of her more

All these circumstances illustrate the absence of any hint of conspiracy. We also find that the prosecution failed to prove Padayhag s guilt beyond reasonable doubt. In People v. Gonzales[36] we held: In the absence of conspiracy, if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. Every person accused has the right to be presumed innocent until the contrary is proven beyond reasonable doubt. The presumption of innocence stands as a fundamental principle of both constitutional and criminal law.[37] Thus, the prosecution has the burden of proving every single fact establishing guilt.[38] Every vestige of doubt having a rational basis must be removed.[39] The defense of the accused, even if weak, is no reason to convict.[40] Within this framework, the prosecution must prove its case beyond any hint of uncertainty. The defense need not even speak at all. The presumption of innocence is more than sufficient. The failure to prove Padayhag s involvement as a conspirator reveals how tenuous the evidence is linking her to the crime. Padayhag s culpability hinges on how her act of fetching Rocky and bringing him to Castillo formed part of a concerted effort to kidnap the child. The act of fetching the boy, by itself, does not constitute a criminal offense. By itself, it is not even sufficient to make

her an accomplice. For a person to be considered an accomplice there must be a community of design, that is, knowing the criminal design of the principal, the co-accused concurs with the latter. Mere commission of an act which aids the perpetrator is not enough. As we explained in People v. Cual:[41] The cooperation that the law punishes is the assistance knowingly rendered, which cannot exist without the previous cognizance of the criminal act intended to be executed. It is therefore required in order to be liable as an accomplice, that the accused must unite with the criminal design of the principal by direct participation. There was therefore a need for clear and convincing proof that this single act was committed to kidnap the child. The prosecution failed to prove this. Padayhag explained that Castillo coaxed her into fetching Rocky through another deception and by playing on her feelings of sympathy and friendship. Castillo corroborated this on the witness stand. The prosecution failed to prove otherwise. The facts as established show that the only thing Castillo told Padayhag was to fetch Rocky because Castillo missed her former ward. Upon reaching the house of the Cebreros, the boy s nanny handed over to Padayhag the child. There is no allegation or evidence that Padayhag knew the criminal plan of Castillo. Neither is there any hint that Castillo told Padayhag to abduct the boy, or to misrepresent herself or use means that would have led Padayhag to suspect that Castillo had some criminal design. Nor was there any

proof that Padayhag knew that Castillo had no permission from the boy s parents. The appearance of the boy itself, newly bathed and dressed for a stroll, would have led Padayhag to believe whatever story Castillo contrived to ask her in fetching the boy. A criminal conviction must stand on the strength of the evidence presented by the prosecution, and not on the weakness of the defense of the accused. The prosecution should have done more to establish Padayhag s guilt. Instead, the prosecution left a lot of room for other possible scenarios besides her guilt. This is a fatal error. The presumption of innocence imposes a rule of evidence, a degree of proof that demands no less than total compliance. As we explained in United States v. Reyes:[42] The presumption of innocence can be overborne only by proof of guilt beyond reasonable doubt, which means proof, to the satisfaction of the court and keeping in mind the presumption of innocence, as precludes every reasonable hypothesis except that which it is given to support. It is not sufficient for the proof to establish a probability, even though strong, that the fact charged is more likely true than the contrary. It must establish the truth of the fact to a reasonable and moral certainty- a certainty that convinces and satisfies the reason and conscience of those who are to act upon it. (Emphasis supplied) On the other hand, we find Padayhag s explanation sufficiently supported by circumstances aside from Castillo s testimony. Padayhag s acts before, during and

after the crime all point to the conclusion that she was no more than an unwitting tool of Castillo. Castillo misled her into a meeting. Castillo again misled her into fetching Rocky. Castillo never met or contacted her after the day of Rocky s abduction. Castillo also testified that she did not bring Padayhag along with her when she went to Obando on the day that coincided with the pay-off. The only circumstance linking Padayhag to that event is the shaky account of two police officers who admitted that their quarry inexplicably disappeared before their very eyes. Even the presumption of regularity in the performance of official duty, by itself, cannot prevail over the constitutional presumption of innocence.[43] Nothing links Padayhag to the demand for ransom. She never received any part of the ransom, precisely because she did not even know it existed. Penalty and Damages Under Article 267 of the Revised Penal Code,[44] the penalty of death is imposed upon proof that the kidnapping was committed to extort ransom from the victim or any other person. We find that the prosecution has established Castillo s guilt for this crime beyond reasonable doubt. However, Castillo s pecuniary liability must be modified to conform with jurisprudence. The award of exemplary damages must be deleted in the absence of any aggravating circumstance. Mr. Cebrero testified that their family suffered serious anxiety at the possibility of not seeing Rocky again.[45] The pain and anguish they experienced justifies the award of moral damages. However, we

reduce the trial court s award of moral damages to P100,000 in line with current jurisprudence.[46] WHEREFORE, the Decision of the Regional Trial Court of Paraaque, Branch 260, National Capital Judicial Region, in Criminal Case No. 95-86 convicting appellant Elizabeth Castillo is AFFIRMED with MODIFICATION. Appellant Elizabeth Castillo is sentenced to suffer the penalty of DEATH and to pay the victim P100,000 as moral damages. The award for exemplary damages is deleted for lack of legal basis. The trial court s Decision convicting appellant Evangeline Padayhag is REVERSED. We ACQUIT Evangeline Padayhag and order her immediate RELEASE from confinement unless held for another lawful cause. The Director of the Bureau of Corrections is ordered to report to the Court, within five days from notice, compliance with this Decision. In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659, upon finality of this decision, let certified true copies of the records of this case be forwarded to the President of the Philippines for the possible exercise of the pardoning power. SO ORDERED.

EN BANC [G.R. Nos. 138874-75, February 03, 2004] PEOPLE OF THE PHILIPPINES, APPELLEE, VS. FRANCISCO JUAN LARRAAGA ALIAS PACO ; JOSMAN AZNAR; ROWEN ADLAWAN ALIAS "WESLEY", ALBERTO CAO ALIAS "ALLAN PAHAK"; ARIEL BALANSAG; DAVIDSON VALIENTE RUSIA ALIAS "TISOY TAGALOG"; JAMES ANTHONY UY ALIAS "WANGWANG"; AND JAMES ANDREW UY ALIAS "MM", APPELLANTS. DECISION PER CURIAM: For most of the Cebuanos, the proceedings in these cases will always be remembered as the "trial of the century." A reading of the voluminous records readily explains why the unraveling of the facts during the hearing before the court below proved transfixing and horrifying and why it resulted in unusual media coverage. These cases involve the kidnapping and illegal detention of a college beauty queen along with her comely and courageous sister. An intriguing tale of ribaldry and gang-rape was followed by the murder of the beauty queen. She was thrown off a cliff into a deep forested ravine where she was left to die. Her sister was subjected to heartless indignities before she was also gangraped. In the aftermath of the kidnapping and rape, the sister was made to disappear. Where she is and what further crimes were inflicted

upon her remain unknown and unsolved up to the present. Before us in an appeal from the Decision[1] dated May 5, 1999 of the Regional Trial Court, Branch 7, Cebu City in Criminal Cases Nos. CBU 45303-45304, finding Rowen Adlawan alias "Wesley," Josman Aznar, Ariel Balansag, Alberto Cao alias "Allan Pahak," Francisco Juan Larraaga alias "Paco," James Andrew Uy alias "MM," and James Anthony Uy alias "Wang Wang," appellants herein, guilty beyond reasonable doubt of the crimes of kidnapping and serious illegal detention and sentencing each of them to suffer the penalties of "two (2) reclusiones perpetua" and to indemnify the heirs of the victims, sisters Marijoy and Jacqueline Chiong, jointly and severally, the amount of P200,000.00 as actual damages and P5,000,000.00 as moral and exemplary damages. The Fourth Amended Informations[2] for kidnapping and illegal detention dated May 12, 1998 filed against appellants and Davidson Rusia alias "Tisoy Tagalog," the discharged state witness, read as follows: 1) For Criminal Case No. CBU45303.[3] "xxx "That on the 16th day of July, 1997, at about 10:00 o'clock more or less in the evening, in the City of Cebu, Philippines and within the jurisdiction of this Honorable Court, the said accused, all private individuals, conniving, confederating and mutually helping with one another, with deliberate intent, did then and there willfully, unlawfully

and feloniously kidnap or deprive one Marijoy Chiong, of her liberty and on the occasion thereof, and in connection, accused, with deliberate intent, did then and there have carnal knowledge of said Marijoy against her will with the use of force and intimidation and subsequent thereto and on the occasion thereof, accused with intent to kill, did then and there inflict physical injuries on said Marijoy Chiong throwing her into a deep ravine and as a consequence of which, Marijoy Chiong died. "CONTRARY TO LAW." 2) For Criminal Case CBU45304:[4] "xxx "That on the 16th day of July, 1997, at about 10:00 o'clock more or less in the evening, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, all private individuals, conniving, confederating and mutually helping with one another, with deliberate intent, did then and there willfully, unlawfully and feloniously kidnap or deprive one Jacqueline Chiong of her liberty, thereby detaining her until the present. "CONTRARY TO LAW." On separate arraignments, state witness Davison Rusia and appellants Rowen Adlawan, Josman Aznar, Ariel Balansag, Alberto Cao, James Andrew and James Anthony Uy pleaded not guilty.[5] Appellant Francisco Juan Larraaga refused to plead, hence, the trial court entered for him the

plea of "not guilty."[6] Thereafter, trial on the merits ensued. In the main, the prosecution evidence centered on the testimony of Rusia.[7] Twenty-one witnesses[8] corroborated his testimony on major points. For the defense, appellants James Anthony Uy and Alberto Cao took the witness stand. Appellant Francisco Juan Larraaga was supposed to testify on his defense of alibi but the prosecution and the defense, through a stipulation approved by the trial court, dispensed with his testimony. Nineteen witnesses testified for the appellants, corroborating their respective defenses of alibi. The version of the prosecution is narrated as follows: On the night of July 16, 1997, sisters Marijoy and Jacqueline Chiong, who lived in Cebu City, failed to come home on the expected time. It was raining hard and Mrs. Thelma Chiong thought her daughters were simply having difficulty getting a ride. Thus, she instructed her sons, Bruce and Dennis, to fetch their sisters. They returned home without Marijoy and Jacqueline. Mrs. Chiong was not able to sleep that night. Immediately, at 5:00 o'clock in the morning, her entire family started the search for her daughters, but there was no trace of them. Thus, the family sought the assistance of the police who continued the search. But still, they could not find Marijoy and Jacqueline.[9] Meanwhile, in the morning of July 18, 1997, a certain Rudy Lasaga reported to the police that a young woman was found dead at the foot of

a cliff in Tan-awan, Carcar, Cebu.[10] Officer-in-Charge Arturo Unabia and three other policemen proceeded to Tan-awan and there, they found a dead woman lying on the ground. Attached to her left wrist was a handcuff.[11] Her pants were torn, her orange t-shirt was raised up to her breast and her bra was pulled down. Her face and neck were covered with masking tape.[12] On July 19, 1996, upon hearing the news about the dead woman, Mrs. Chiong's son Dennis and other relatives proceeded to the Tupaz Funeral Parlor at Carcar, Cebu to see the body. It was Marijoy dressed in the same orange shirt and maong pants she wore when she left home on July 16, 1997. Upon learning of the tragic reality, Mrs. Chiong became frantic and hysterical. She could not accept that her daughter would meet such a gruesome fate.[13] On May 8, 1998, or after almost ten months, the mystery that engulfed the disappearance of Marijoy and Jacqueline was resolved. Rusia, bothered by his conscience and recurrent nightmares,[14] admitted before the police having participated in the abduction of the sisters.[15] He agreed to re-enact the commission of the crimes.[16] On August 12, 1998, Rusia testified before the trial court how the crimes were committed and identified all the appellants as the perpetrators. He declared that his conduit to Francisco Juan Larraaga was Rowen Adlawan whom he met together with brothers James Anthony and James Andrew Uy five months before the commission of the crimes charged.[17] He has

known Josman Aznar since 1991. He met Alberto Cao and Ariel Balansag only in the evening of July 16, 1997. Or, July 15, 1997, while Rusia was loafing around at the Cebu Plaza Hotel, Cebu City, Rowen approached him and arranged that they meet the following day at around 2:00 o'clock in the afternoon.[18] When they saw each other the next day, Rowen told him to stay put at the Ayala Mall because they would have a "big happening" in the evening. All the while, he thought that Rowen's "big happening" meant group partying or scrounging. He thus lingered at the Ayala Mall until the appointed time came.[19] At 10:30 in the evening, Rowen returned with Josman. They met Rusia at the back exit of the Ayala Mall and told him to ride with them in a white car. Rusia noticed that a red car was following them. Upon reaching Archbishop Reyes Avenue, same city, he saw two women standing at the waiting shed.[20] Rusia did not know yet that their names were Marijoy and Jacqueline. Josman stopped the white car in front of the waiting shed and he and Rowen approached and invited Marijoy and Jacqueline to join them.[21] But the sisters declined. Irked by the rejection, Rowen grabbed Marijoy while Josman held Jacqueline and forced both girls to ride in the car.[22] Marijoy was the first one to get inside, followed by Rowen. Meanwhile, Josman pushed Jacqueline inside and immediately drove the white car. Rusia sat on the front seat beside Josman.

Fourteen (14) meters from the waiting shed, Jacqueline managed to get out of the car. Josman chased her and brought her back into the car. Not taking anymore chances, Rowen elbowed Jacqueline on the chest and punched Marijoy on the stomach, causing both girls to faint.[23] Rowen asked Rusia for the packaging tape under the latter's seat and placed it on the girls' mouths. Rowen also handcuffed them jointly. The white and red cars then proceeded to Fuente Osmea, Cebu City. At Fuente Osmea, Josman parked the car near a Mercury Drug Store and urged Rusia to inquire if a van that was parked nearby was for hire. A man who was around replied "no" so the group immediately left. The two cars stopped again near Park Place Hotel where Rusia negotiated to hire a van. But no van was available. Thus, the cars sped to a house in Guadalupe, Cebu City known as the safehouse of the "Jozman Aznar Group" Thereupon, Larraaga, James Anthony and James Andrew got out of the red car. Larraaga, James Anthony and Rowen brought Marijoy to one of the rooms, while Rusia and Josman led Jacqueline to another room. Josman then told Rusia to step out so Rusia stayed at the living room with James Andrew. They remained in the house for fifteen (15) to twenty (20) minutes. At that time, Rusia could hear Larraaga, James Anthony, and Rowen giggling inside the room. Thereafter, the group brought Marijoy and Jacqueline back to the white car. Then the two cars headed to the South Bus Terminal where they were able to hire a white van

driven by Alberto. Ariel was the conductor. James Andrew drove the white car, while the rest of the group boarded the van. They traveled towards south of Cebu City, leaving the red car at the South Bus Terminal. Inside the van, Marijoy and Jacqueline were slowly gaining strength. James Anthony taped their mouths anew and Rowen handcuffed them-together. Along the way, the van and the white car stopped by a barbeque store. Rowen got off the van and bought barbeque and Tanduay rhum. They proceeded to Tan-awan.[24] Then they parked their vehicles near a precipice[25] where they drank and had a pot session. Later, they pulled Jacqueline out of the van and told her to dance as they encircled her. She was pushed from one end of the circle to the other, ripping her clothes in the process. Meanwhile, Josman told Larraaga to start raping Marijoy who was left inside the van. The latter did as told and after fifteen minutes emerged from the van saying, "who wants next?  Rowen went in, followed by James Anthony, Alberto, the driver, and Ariel, the conductor. Each spent a few minutes inside the van and afterwards came out smiling.[26] Then they carried Marijoy out of the van, after which Josman brought Jacqueline inside the vehicle. Josman came out from the van after ten minutes, saying, "whoever wants next go ahead and hurry up." Rusia went inside the van and raped Jacqueline, followed by James Andrew. At this instance, Marijoy was to breathe her last for upon Josman's instruction, Rowen and Ariel led her to the cliff and

mercilessly pushed her into the ravine[27] which was almost 150 meters deep.[28] As for Jacqueline, she was pulled out of the van and thrown to the ground. Able to gather a bit of strength, she tried to run towards the road. The group boarded the van, followed her and made fun of her by screaming, "run some more" There was a tricycle passing by. The group brought Jacqueline inside the van. Rowen beat her until she passed out. The group then headed back to Cebu City with James Andrew driving the white car. Rusia got off from the van somewhere near the Ayala Center.[29] There were other people who saw snippets of what Rusia had witnessed. Sheila Singson,[30] Analie Konahap[31] and Williard Redobles[32] testified that Marijoy and Jacqueline were talking to Larraaga and Josman before they were abducted. Roland Dacillo[33] saw Jacqueline alighting and running away from a white car and that Josman went after her and grabbed her back to the car. Alfredo Duarte[34] testified that he was at the barbeque stand when Rowen bought barbeque; that Rowen asked where he could buy Tanduay; that he saw a white van and he heard therefrom voices of a male and female who seemed to be quarreling; that he also heard a cry of a woman which he could not understand because "it was as if the voice was being controlled;" and that after Rowen got his order, he boarded the white van which he recognized to be previously driven by Alberto Cao. Meanwhile, Mario Mioza,[35] a tricycle driver plying the route of Carcar-Mantalongon, saw Jacqueline

running towards Mantalongon. Her blouse was torn and her hair was disheveled. Trailing her was a white van where a very loud rock music could be heard. Manuel Camingao[36] recounted that on July 17, 1997, at about 5:00 o'clock in the morning, he saw a white van near a cliff at Tan-awan. Thinking that the passenger of the white van was throwing garbage at the cliff, he wrote its plate number (GGC-491) on the side of his tricycle.[37] Still, there were other witnesses[38] presented by the prosecution who gave details which, when pieced together, corroborated well Rusia's testimony on what transpired at the Ayala Center all the way to Carcar. Against the foregoing facts and circumstances, the appellants raised the defense of alibi, thus: Larraaga, through his witnesses, sought to establish that on July 16, 1997, he was in Quezon City taking his mid-term examinations at the Center for Culinary Arts. In the evening of that day until 3:00 o'clock in the morning of July 17, 1997, he was with his friends at the R & R Bar and Restaurant, same city. Fifteen witnesses testified that they were either with Larraaga or saw him in Quezon City at the time the crimes were committed. His friends, Lourdes Montalvan,[39] Charmaine Flores,[40] Richard Antonio,[41] Jheanessa Fonacier,[42] Maharlika Shulze,[43] Sebastian Seno,[44] Francisco Jarque,[45] Raymond Garcia,[46] Cristina Del Gallego,[47] Mona Lisa Del Gallego,[48] Paolo Celso[49] and Paolo Manguerra[50] testified that they were with him at the R & R Bar on the night of July 16, 1997. The celebration was a

"despedida" for him as he was leaving the next day for Cebu and a "bienvenida" for another friend. Larraaga's classmate Carmina Esguerra[51] testified that he was in school on July 16, 1997 taking his mid-term examinations. His teacher Rowena Bautista,[52] on the other hand, testified that he attended her lecture in Applied Mathematics. Also, some of his neighbors at the Loyola Heights Condominium, Quezon City, including the security guard, Salvador Boton, testified that he was in his condo unit in the evening of July 16, 1997. Representatives of the four airline companies plying the route of Manila-Cebu-Manila presented proofs showing that the name Francisco Juan Larraaga does not appear in the list of preflight and post-flight manifests from July 15, 1997 to about noontime of July 17, 1997. Meanwhile, James Anthony Uy testified that on July 16, 1997, he and his brother James Andrew were at home in Cebu City because it was their father's 50th birthday and they were celebrating the occasion with a small party which ended at 11:30 in the evening.[53] He only left his house the next day, July 17, 1997 at about 7:00 o'clock in the morning to go to school.[54] The boys' mother, Marlyn Uy, corroborated his testimony and declared that when she woke up at 2:00 o'clock in the morning to check on her sons, she found them sleeping in their bedrooms. They went to school the next day at about 7:00 o'clock in the morning.[55] Clotilde Soterol testified for Alberto and Ariel. She narrated that on July 16, 1997, at around 7:00 o'clock in the evening, Alberto brought the

white Toyota van with Plate No. GGC-491 to her shop to have its aircon repaired. Alberto was accompanied by his wife Gina Cao, co-appellant Ariel, and spouses Catalina and Simplicio Paghinayan, owners of the vehicle. Since her (Clotildes') husband was not yet around, Alberto just left the vehicle and promised to return the next morning. Her husband arrived at 8:30 in the evening and started to repair the aircon at 9:00 o'clock of the same evening. He finished the work at 10:00 o'clock the following morning. At 11:00 o'clock, Alberto and his wife Gina, Ariel and Catalina returned to the shop to retrieve the vehicle.[56] Alberto,[57] Gina[58] and Catalina[59] corroborated Clotilde's testimony. To lend support to Josman's alibi, Michael Dizon recounted, that on July 16, 1997, at about 8:00 o'clock in the evening, he and several friends were at Josman's house in Cebu. They ate their dinner there and afterwards drank "Blue Label." They stayed at Josman's house until 11:00 o'clock in the evening. Thereafter, they proceeded to BAI Disco where they drank beer and socialized with old friends. They stayed there until 1:30 in the morning of July 17, 1997. Thereafter, they transferred to DTM Bar. They went home together at about 3:00 o'clock in the morning. Their friend, Jonas Dy Pico, dropped Josman at his house.[60] Concerning state witness Rusia, on August 7, 1998, when the prosecution moved that he be discharged as an accused for the purpose of utilizing him as a state witness,[61] Larraaga and brothers James Anthony and James

Andrew opposed the motion on the ground that he does not qualify as a state witness under Section 9, Rule 119 of the Revised Rules of Court on Criminal Procedure.[62] On August 12, 1998, the trial court allowed the prosecution to present Rusia as its witness but deferred resolving its motion to discharge until it has completely presented its evidence.[63] On the same date, the prosecution finished conducting Rusia's direct examination.[64] The defense lawyers cross-examined him on August 13, 17, and 20, 1998.[65] On the last date, Judge Ocampo provisionally terminated the crossexamination due to the report that there was an attempt to bribe him and because of his deteriorating health.[66] Resenting the trial court's termination of Rusia's crossexamination, the defense lawyers moved for the inhibition of Judge Ocampo.[67] When he informed the defense lawyers that he would not inhibit himself since he found no "just and valid reasons" therefor, the defense lawyers withdrew en masse as counsel for the appellants declaring that they would no longer attend the trial. Judge Ocampo held them-guilty-of direct contempt of court. Thus, defense lawyers Raymundo Armovit, Edgar Gica, Fidel Gonzales, Ramon Teleron, Alfonso de la Cerna and Lorenzo Paylado were ordered jailed. In the Order dated August 25, 1998, the trial court denied the motion for inhibition of the defense lawyers and ordered them to continue representing their respective clients so that the cases may undergo the mandatory continuous trial. The trial court likewise denied their motion

to withdraw as appellants' counsel because of their failure to secure a prior written consent from their clients. On August 26, 1998, appellants filed their written consent to the withdrawal of their counsel. Thereafter, Larraaga, Josman and brothers James Anthony and James Andrew moved for the postponement of the hearing for several weeks to enable them to hire the services of new counsel.[68] On August 31, 1998, the trial court denied appellants' motions on the ground that it could no longer delay the hearing of the cases. On September 2, 1998, the trial court directed the Public Attorney's Office (PAO) to act as counsel de oficio for all the appellants.[69] Trial resumed on September 3, 1998 with a team of PAO lawyers assisting appellants. Larraaga objected to the continuation of the direct examination of the prosecution witnesses as he was not represented by his counsel de parte. The trial court overruled his objection. The prosecution witnesses testified continuously from September 3, 1998 to September 24, 1998. Meanwhile, the cross-examination of said witnesses was deferred until the appellants were able to secure counsel of their choice. On the same date, September 24, 1998, Atty. Eric C. Villarmia entered his appearance as counsel for Larraaga, while Atty. Eric S. Carin appeared as counsel for brothers James Anthony and James Andrew. Thereafter, or on October 1, 1998, the defense lawyers started crossexamining Rusia. The cross-

examination continued on October 5, 6, 12 and 13, 1998. Eventually, acting on the prosecution's motion to discharge Rusia to be a state witness, the trial court required the "opposing parties to submit their respective memoranda. On November 12, 1998, the trial court issued an omnibus order granting the prosecution's motion discharging Rusia as an accused and according him the status of a state witness. On May 5, 1999, the trial court rendered the assailed Decision, the dispositive portion of which reads: "WHEREFORE, all the accused Francisco Juan Larraaga, Josman Aznar, James Andrew Uy, James Anthony Uy, Rowen Adlawan, Alberto Cao, and Ariel Balansag are hereby found Guilty beyond reasonable doubt of two crimes of Kidnapping and Serious Illegal Detention and are hereby sentenced to imprisonment of Two (2) Reclusiones Perpetua each which penalties, however, may be served by them simultaneously (Article 70, Revised Penal Code). Further, said accused are hereby ordered to indemnify the heirs of the two (2) victims in these cases, jointly and severally, in the amount of P200,000.00 in actual damages and P5,000,000.00 by way of moral and exemplary damages. "SO ORDERED." Hence, the instant separate appeals. Appellants Rowen, Alberto and Ariel ascribe to the trial court the following errors: "I THE COURT A QUO ERRED IN GIVING CREDENCE TO THE

UNTRUSTWORTHY, INCONSISTENT, CONTRADICTORY AND INCREDULOUS TESTIMONY OF (DAVIDSON) VALIENTE RUSIA. "II THE COURT A QUO ERRED IN ADMITTING THE TESTIMONY OF THE PROSECUTION WITNESSES, NOTWITHSTANDING THE FACT THAT THE DEFENDANTS WERE NOT DULY REPRESENTED BY COUNSELS OF THEIR OWN CHOICE DURING THE TIME THESE WITNESSES WERE PRESENTED. "III THE COURT A QUO ERRED IN FINDING THAT THERE WAS CONSPIRACY IN THE CASE AT BAR. "IV THE COURT A QUO ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES. V

THE COURT A QUO ERRED IN DISPLAYING MANIFEST ANIMOSITY TOWARDS THE DEFENSE'S WITNESSES WHICH CLEARLY SHOWED ITS PREJUDICE AND BIAS IN DECIDING THE CASE. "VI THE COURT A QUO ERRED IN NOT ALLOWING SOME DEFENSE WITNESSES TO TESTIFY. "VII THE COURT A QUO ERRED IN CONSIDERING ROWEN ADLAWAN

TO HAVE WAIVED PRESENTATION OF EVIDENCE IN HIS BEHALF." For his part, Josman raises the following assignments of error: "I THE TRIAL COURT GRAVELY ERRED IN DISCHARGING DAVID VALIENTE RUSIA AS STATE WITNESS IN GROSS AND BLATANT DISREGARD OF THE RULES ON DISCHARGE OF STATE WITNESS. "II

CONSTITUTIONAL RIGHTS OF AN ACCUSED. "VI THE TRIAL JUDGE VIOLATED AZNAR'S RIGHT TO DUE PROCESS WHEN THE TRIAL JUDGE REFUSED TO INHIBIT HIMSELF AND PROCEEDED WITH THE TRIAL DESPITE GLARING BADGES OF HIS PARTIALITY AND BIAS FOR THE PROSECUTION. "VII

THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO RUSIA'S TESTIMONY DESPITE CLEAR SHOWING THAT HIS CRIMINAL RECORD AS AN EX-CONVlCT, DRUG ADDICT AND GANGSTER AND HIS SUICIDAL TENDENCIES SERIOUSLY IMPAIR HIS CREDIBILITY AND INNATE CAPACITY FOR TRUTH, HONESTY AND INTEGRITY. "III THE TRIAL COURT GRAVELY ERRED IN LENDING CREDENCE TO RUSIA'S TESTIMONY REPLETE AS IT WAS WITH INCONSISTENCIES, FALSEHOODS AND LIES. "IV THE TRIAL COURT GRAVELY ERRED IN LENDING CREDENCE TO THE CORROBORATIVE TESTIMONIES OF THE PROSECUTION WITNESSES. "V THE TRIAL COURT GRAVELY ERRED IN DENYING APPELLANT AZNAR HIS RIGHT TO DUE PROCESS AND IN DEPRIVING HIM OF THE

THE TRIAL COURT GRAVELY ERRED IN DISCREDITING AND DISREGARDING THE DEFENSE OF APPELLANT AZNAR. "VIII THE TRIAL COURT GRAVELY ERRED IN CONVICTING APPELLANT AZNAR ON THE BASIS OF PROSECUTING EVIDENCE MAINLY ANCHORED ON RUSIA'S TESTIMONY WHICH FAILED TO EVINCE PROOF BEYOND REASONABLE DOUBT OF APPELLANT AZNAR'S CRIMINAL LIABILITY." In his 145-page appellant's brief, Larraaga alleges that the trial court committed the following errors: "6.1 THE TRIAL COURT ERRED IN IGNORING AND VIOLATING DUE PROCESS RIGHTS OF THE ACCUSED. 6.2 THE TRIAL COURT ERRED IN ALLOWING THE DISCHARGE OF ACCUSED DAVIDSON RUSIA. 6.3 THE TRIAL COURT ERRED IN GIVING PARTIAL CREDIBILITY TO THE TESTIMONY OF DAVIDSON RUSIA.

6.4 THE TRIAL COURT ERRED IN CONSIDERING THE TESTIMONIES OF THE OTHER WITNESSES. 6.5 THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF OTHER WITNESSES. 6.6 THE TRIAL COURT ERRED IN FINDING THAT THE PROSECUTION HAS OVERCOME THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE. 6.7 THE TRIAL COURT ERRED IN DISREGARDING AND REJECTING, EVEN AT DIRECT TESTIMONY STAGE, THE ACCUSEDAPPELLANT'S DEFENSE OF ALIBI." For their part, brothers James Anthony and James Andrew, in their 147-page appellants' brief, bid for an acquittal on the following grounds: "A) THE TRIAL COURT BELOW GRIEVOUSLY FAILED TO OBSERVE, AND THUS DENIED ACCUSED JAMES ANTHONY S. UY AND JAMES ANDREW S. UY THEIR CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW, TO BE PRESUMED INNOCENT, TO HAVE COUNSEL OF THEIR OWN CHOICE, TO HAVE AN IMPARTIAL JUDGE, TO MEET WITNESSES FACE TO FACE, AND TO PRODUCE EVIDENCE ON THEIR BEHALF; B) THE PROSECUTION EVIDENCE HAS ABSOLUTELY NOTHING TO SUPPORT THE CONVICTION OF ACCUSED JAMES ANTHONY S. UY AND JAMES ANDREW S. UY IN THESE CASES THUS THE TRIAL COURT BELOW SERIOUSLY AND GRIEVOUSLY ERRED WHEN IT RENDERED THE 5 MAY 1999 JUDGMENT OF CONVICTION AGAINST THEM."[70]

Appellants' assignments of error converge on four points, thus: (1) violation of their right to due process; (2) the improper discharge of Rusia as an accused to be a state witness; (3) the insufficiency of the evidence of the prosecution; and (4) the trial court's disregard and rejection of the evidence for the defense. The appeal is bereft of merit. I. Violation of Appellants' Right to Due Process Due process of law is the primary and indispensable foundation of individual freedoms; it is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the State may exercise.[71] In evaluating a due process claim, the court must determine whether life, liberty or property interest exists, and if so, what procedures are constitutionally required to protect that right.[72] Otherwise stated, the due process clause calls for two separate inquiries in evaluating an alleged violation: did the plaintiff lose something that fits into one of the three protected categories of life, liberty, or property?; and, if so, did the plaintiff receive the minimum measure of procedural protection warranted under the circumstances?[73] For our determination, therefore, is whether the minimum requirements of due process were accorded to appellants during the trial of these cases. Section 14, Article III of our Constitution catalogues the

essentials of due process in a criminal prosecution, thus: "SEC. 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been notified and his failure to appear is unjustifiable." Rule 115 of the Revised Rules of Criminal Procedure casts the foregoing provision in a more detailed manner, thus: "SECTION 1. Rights of accused at the trial. In all criminal prosecutions, the accused shall be entitled to the following rights: (a) To be presumed innocent until the contrary is proved beyond reasonable doubt. (b) To be informed of the nature and cause of the accusation against him. (c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The

absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel. (d) To testify as a witness in his own behalf but subject to crossexamination on matters covered by direct examination. His silence shall not in any manner prejudice him. (e) To be exempt from being compelled to be a witness against himself. (f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or cannot with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him. (g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf. (h) To have speedy, impartial and public trial.

(i) To appeal in all cases allowed and in the manner prescribed by law." Of the foregoing rights, what appellants obviously claim as having been trampled upon by the trial court are their: (a) right to be assisted by counsel at every stage of the proceedings; (b) right to confront and cross-examine the prosecution witnesses; (c) right to produce evidence on their behalf; and (d) right to an impartial trial. A. Right to Counsel

course, it behooved the trial court to prevent any further dilatory maneuvers on the part of the defense counsel. Accordingly, it was proper for the trial court to appoint counsel de oficio to represent appellants during the remaining phases of the proceedings. At any rate, the appointment of counsel de oficio under such circumstances is not proscribed by the Constitution. An examination of its provisions concerning the right to counsel shows that the "preference in the choice of counsel" pertains more aptly and specifically to a person under investigation[75] rather than an accused in a criminal prosecution.[76] And even if we are to extend the "application of the concept of "preference in the choice of counsel" to an accused in a criminal prosecution, such preferential discretion is not absolute as would enable him to choose a particular counsel to the exclusion of others equally capable. We stated the reason for this ruling in an earlier case: "Withal, the word 'preferably' under Section 12 (1), Article 3 of the 1987 Constitution does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling his defense. If the rule were otherwise, then, the tempo of a custodial investigation, will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer, who for one reason or another, is not available to protect his interest. This absurd scenario could not have been contemplated by the framers of the charter."[77]

Anent the right to counsel, appellants fault the trial court: first, for appointing counsel de oficio despite their insistence to be assisted by counsel of their own choice; and second, for refusing to suspend trial until they shall have secured the services of new counsel. Appellants cannot feign denial of their right to counsel. We have held that there is no denial of the right to counsel where a counsel de oficio was appointed during the absence of the accused's counsel de parte, pursuant to the court's desire to finish the case as early as practicable under the continuous trial system.[74] Indisputably, it was the strategic machinations of appellants and their counsel de parte which prompted the trial court to appoint counsel de oficio. The unceremonious withdrawal of appellants' counsel de parte during the proceedings of August 24, 1998, as well as their stubborn refusal to return to the court for trial undermines the continuity of the proceedings. Considering that the case had already been dragging on a lethargic

In the same breath, the choice of counsel by the accused in a criminal prosecution is not a plenary one. If the chosen counsel deliberately makes himself scarce, the court is not precluded from appointing a de oficio counsel whom it considers competent and independent to enable the trial to proceed until the counsel of choice enters his appearance. Otherwise, the pace of a criminal prosecution will be entirely dictated by the accused to the detriment of the eventual resolution of the case.[78] Neither is there a violation of appellants' right to counsel just because the trial court did not grant their request for suspension of the hearing pending their search for new counsel. An application for a continuance in order to secure the services of counsel is ordinarily addressed to the discretion of the court, and the denial thereof is not ordinarily an infringement of the accused's right to counsel.[79] The right of the accused to select his own counsel must be exercised in a reasonable time and in a reasonable manner.[80] In the present case, appellants requested either one (1) month or three (3) weeks to look for new counsel. Such periods are unreasonable. Appellants could have hired new lawyers at a shorter time had they wanted to. They should have been diligent in procuring new counsel.[81] Constitutional guaranty of right to representation by counsel does not mean that accused may avoid trial by neglecting or refusing to secure assistance of counsel and by refusing to participate in his trial.[82] It has been held that where the accused declined the court's

offer to appoint counsel and elected to defend himself, the denial of his motion made toward the end of the trial for a continuance so that he could obtain counsel of his own choice was not an infringement of his constitutional rights.[83] While the accused has the right to discharge or change his counsel at any time, this right is to some extent subject to supervision by the trial court, particularly after the trial has commenced. The court may deny accused's application to discharge his counsel where it appears that such application is not made in good faith but is made for purposes of delay.[84] Significantly, parallel to the hearing at the trial court were also petitions and motions involving several incidents in these cases filed with the Court of Appeals and this Court. The appellants, particularly Larraaga, were represented there by the same counsel de parte.[85] Certainly, it is wrong for these lawyers to abandon appellants in the proceeding before the trial court and unceasingly represent them in the appellate courts. Indeed, in doing so, they made a mockery of judicial process and certainly delayed the hearing before the court below. In Lacambra vs. Ramos,[86] we ruled: "The Court cannot help but note the series of legal maneuvers resorted to and repeated importunings of the accused or his counsel, which resulted in the protracted trial of the case, thus making a mockery of the judicial process, not to mention the injustice caused by the delay to the victim's family." Furthermore, appellants' counsel de parte ought to know that until their withdrawal shall have been approved by the appellants, they still

remain the counsel of record and as such, they must do what is expected of them, that is, to protect their interests.[87] They cannot walk out from a case simply because they do not agree with the ruling of the judge. Being officers of the court whose duty is to assist in administering justice, they may not withdraw or be permitted to withdraw as counsel in a case if such withdrawal will work injustice to a client or frustrate the ends of justice.[88] B. Right to Confront and CrossExamine the Prosecution Witnesses. Appellants also fault the trial court for depriving them of the right to cross-examine Rusia and the other prosecution witnesses. Appellants' assertion has no factual and legal anchorage. For one, it is not true that they were not given sufficient opportunity to cross-examine Rusia. All of appellants' counsel de parte had a fair share of time in grilling Rusia concerning his background to the kidnapping of Marijoy and Jacqueline. The records reveal the following dates of his crossexamination: Lawyers Dates of Cross-examination 1. Armovit (for Larraaga) August 13 and 17, 1998 2. Gonzales (for Larraaga) August 20, 1998 3. Gica (for Josman) August 20, 1998 4. Paylado (for James Anthony and James Andrew) August 20, 1998 5. De la Cerna (for Rowen, Alberto and Ariel) August 20, 1998

6. Villarmia (for Larraaga) October 1, 1998 7. Andales (for Josman) October 5 and 6, 1998 8. Carin (for James Andrew and James Anthony) October, 5, 1998 9 Debalucos (for Rowen, Cao and Balansag) October 12, 1998 10. De Jesus (for Rowen, Alberto and Ariel) October 12, 1998 11. Ypil (for Rowen, Alberto and Ariel) October 12, 1998[89] That the trial court imposed limitation on the length of time counsel for appellants may crossexamine Rusia cannot be labeled as a violation of the latter's constitutional right. Considering that appellants had several lawyers, it was just imperative for the trial court to impose a time limit on their crossexamination so as not to waste its time on repetitive and prolix questioning. Indeed, it is the right and duty of the trial court to control the crossexamination of witnesses, both for the purpose of conserving its time and protecting the witnesses from prolonged and needless examination.[90] Where several accused are being tried jointly for the same offense, the order in which counsel for the several defendants shall cross-examine the state's witnesses may be regulated by the court[91] and one of them may even be denied the right to cross-examine separately where he had arranged with the others that counsel of one of them should cross-examine for all.[92] In People vs. Gorospe,[93] we ruled:

"While cross-examination is a right available to the adverse party, it is not absolute in the sense that a cross-examiner could determine for himself the length and scope of his cross-examination of a witness. The court has always the discretion to limit the cross-examination and to consider it terminated if it would serve the ends of justice." The transcript of stenographic notes covering Rusia's cross-examination shows that appellants' counsel had ample chance to test his credibility. Records show that the failure of the PAO lawyers to cross-examine some of the prosecution witnesses was due to appellants' obstinate refusal. In its Order[94] dated September 8, 1998, the trial court deferred the cross-examination in view of appellants' insistence that their new counsel de parte will conduct the cross-examination. So as not to unduly delay the hearing, the trial court warned the appellants that if by September 24, 1998, they are not yet represented by their new counsel de parte, then it will order their counsel de oficio to conduct the cross-examination. Lamentably, on September 24, 1998, appellants' counsel de parte entered their appearances merely to seek another postponement of the trial. Thus, in exasperation, Judge Ocampo remarked: "Every time a defense counsel decides to withdraw, must an accused be granted one (1) month suspension of trial to look for such new counsel to study the records and transcripts? Shall the pace of the trial of these cases be thus left to the will or dictation of the accused whose defense counsels would just suddenly withdraw and cause such long suspensions of the trial while

accused allegedly shop around for new counsels and upon hiring new counsels ask for another one month trial suspension for their new lawyers to study the records? While all the time such defense counsels (who allegedly have already withdrawn) openly continue to 'advise' their accused-clients and even file 'Manifestations' before this Court and Petitions for Certiorari, Injunction and Inhibition on behalf of accused before the Court of Appeals and the Supreme Court? "What inanity is this that the accused and their lawyers are foisting upon this Court? In open defiance of the provisions of SC A.O. No. 104-96 that these heinous crimes cases shall undergo 'mandatory continuous trial and shall be terminated within sixty (60) days'?" Still, in its Order dated October 8, 1998, the trial court gave appellants' new counsel de parte a period until October 12, 1998 to manifest whether they are refusing to crossexamine the prosecution witnesses concerned; if so, then the court shall consider them to have waived their right to cross-examine those witnesses. During the hearing on October 12, 1998, Larraaga's new counsel de parte, Atty. Villarmia, manifested that he would not crossexamine the prosecution witnesses who testified on direct examination when Larraaga was assisted by counsel de officio only. The next day, the counsel de parte of Josman, and brothers James Anthony and James Andrew adopted Atty. Villarmia's manifestation. Counsel for Rowen, Alberto and Ariel likewise refused to cross-examine the same witnesses. Thus, in its Order dated October 14, 1998, the trial court deemed appellants to have waived their right

to cross-examine the prosecution witnesses. It appears therefore, that if some of the prosecution witnesses were not subjected to cross-examination, it was not because appellants were not given the opportunity to do so. The fact remains that their new counsel de parte refused to cross-examine them. Thus, appellants waived their right "to confront and cross examine the witnesses" against them. C. Right to Impartial Trial Appellants imputes bias and partiality to Judge Ocampo when he asked questions and made comments when the defense witnesses were testifying. Canon 14 of the Canons of Judicial Ethics states that a judge may properly intervene during trial to promote expeditious proceeding, prevent unnecessary waste of time and dilly-dallying of counsel or clear up obscurities. The test is whether the intervention of the judge tends to prevent the proper presentation of a cause or the ascertainment of the truth in the matter where he interposes his questions or comments. Records show that the intervention by way of comment of Judge Ocampo during the hearing was not only appropriate but was necessary. One good illustration is his explanation on alibi. Seeing that the appellants' counsel were about to present additional witnesses whose testimonies would not establish the impossibility of appellants' presence in the scene of the crime, Judge Ocampo intervened and reminded

appellants' counsel of the requisites of alibi, thus: "Well, I'm not saying that there is positive identification. I'm only saying that in proving your alibi you must stick by what the Supreme Court said that it was impossible if they are telling the truth, di ba? Now with these other witnesses na hindi naman ganoon to that effect it does not prove that it was impossible, e, what is the relevance on that? What is the materiality? lyon ang point ko. We are wasting our time with that testimony. Ilang witnesses and epepresent to that effect. Wala rin namang epekto. It will not prove that it was not impossible for him to go to Cebu at 10:30 P.M., of July 16, e, papano yan? We are being criticized by the public already for taking so long a time of the trial of these cases which is supposed to be finished within 60 days. Now from August, September, October, November, December and January, magse-six months na, wala pa and you want to present so many immaterial witnesses." Surely, we cannot fault Judge Ocampo for exhaustively reminding appellants' counsel of the parameters of alibi to ensure that there will be an orderly and expeditious presentation of defense witnesses and that there will be no time wasted by dispensing with the testimonies of witnesses which are not relevant. Remarks which merely manifest a desire to confine the proceedings to the real point in issue and to expedite the trial do not constitute a rebuke of counsel.[95] Appellants also decry the supposed harshness of Judge Ocampo towards the witnesses for the defense, namely: Lourdes Montalvan, Michael Dizon, Rebecca Seno, Clotilde

Soterol, Salvador Boton, Catalina Paghinayan and Paolo Celso. With respect to Lourdes Montalvan, Judge Ocampo expressed surprise on "how a 17-year-old girl could go to a man's apartment all alone." He said that such conduct "does not seem to be a reasonable or a proper behavior for a 17-year-old girl to do." These statements do not really indicate bias or prejudice against the defense witnesses. The transcript of stenographic notes reveals that Judge Ocampo uttered them, not to cast doubt on the moral character of Lourdes Montalvan, but merely to determine the credibility of her story, thus: "x x x But what I wanted to point out is the question of credibility. That is what we are here for. We want to determine if it is credible for a 17year-old college student of the Ateneo who belongs to a good family, whose father is a lawyer and who could afford to live by herself in a Condominium Unit in Quezon City and that she would go to the Condominium Unit of a man whom he just met the previous month, all alone by herself, at night and specifically on the very night July 16, 1997. x x x That is the question that I would like you to consider, x x x I assure you I have no doubts at all about her moral character and I have the highest respect for Miss Montalvan. x x x." Strong indication of Judge Ocampo's lack of predilection was his acquiescence for Lourdes Montalvan to clarify during redirect examination why she found nothing wrong with being alone at Larraaga's unit. We quote the proceedings of November 19, 1998, thus: ATTY. VILLARMIA:

Q When you went up you said you were alone. What was your feeling of going up to that room alone or that unit alone? PROS. GALANIDA We object, not proper for redirect. That was not touched during the cross. That should have been asked during the direct-examination of this witness, Your Honor. ATTY. VILLARMIA: We want to clarify why she went there alone. COURT: Precisely, I made that observation that does not affect or may affect the credibility of witness the fact that she went there alone. And so, it is proper to ask her, di ba? xxx COURT: What was your purpose? Ask her now - what was your purpose? /to the witness: Q Will you answer the question of the Court/ What was your purpose or intention in going in Paco's room that night alone? WTNESS: A My purpose for going there was to meet Richard, sir, and to follow-up whether we will go out later that night or not. The purpose as to going there alone, sir, I felt, I trusted Paco. PROS. DUYONGCO: May we ask the witness not to elaborate, Your Honor. ATTY. VILLARMIA:

That is her feeling. COURT: That was her purpose. It is proper."[96] Appellants consider as violation of their right to due process Judge Ocampo's remarks labeling Rebecca Seno's and Catalina Paghinayan's testimony as "incredible"[97] Clotilde Soterol as a "totally confused person who appears to be mentally imbalanced;"[98] and Salvador Boton and Paulo Celso as "liars."[99] Suffice it to state that after going over the pertinent transcript of stenographic notes, we are convinced that Judge Ocampo's comments were just honest observations intended to warn the witnesses to be candid to the court. He made it clear that he merely wanted to ascertain the veracity of their testimonies in order to determine the truth of the matter in controversy.[100] That such was his purpose is evident from his probing questions which gave them the chance to correct or clarify their contradictory statements. Even appellants' counsel de parte acknowledged that Judge Ocampo's statements were mere "honest observations [101] If Judge Ocampo uttered harsh words against those defense witnesses, it was because they made a mockery of the court's proceedings by their deliberate lies. The frequency with which they changed their answers to Judge Ocampo's clarificatory questions was indeed a challenge to his patience. A trial judge is not a wallflower during trial. It is proper for him to caution and admonish witnesses

when necessary and he may rebuke a witness for levity or for other improper conduct.[102] This is because he is called upon to ascertain the truth of the controversy before him.[103] It bears stressing at this point that the perceived harshness and impatience exhibited by Judge Ocampo did not at all prevent the defense from presenting adequately its side of the cases. D. Right to Produce Evidence

Appellants assail the trial court's exclusion of the testimonies of four (4) airlines personnel[104] which were intended to prove that Larraaga did not travel to Cebu from Manila or from Cebu to Manila on July 16, 1997. The trial court's exclusion of the testimonies is justified. By an alibi, Larraaga attempted to prove that he was at a place (Quezon City) so distant that his participation in the crime was impossible. To prove that he was not in the pre-flight and post-flight of the four (4) major airlines flying the route of Cebu to Manila and Manila to Cebu on July 15 and 16, 1997 would not prove the legal requirement of "physical impossibility" because he could have taken the flight from Manila to Cebu prior to that date, such as July 14, 1997. According to Judge Ocampo, it was imperative for appellants' counsel to prove that Larraaga did not take a flight to Cebu before July 16, 1997. In the same way, we cannot fault the trial court for not allowing the defense to continue with the" tedious process of presenting additional witnesses to prove

Larraaga's enrollment at the Center for Culinary Arts, located at Quezon City, from June 18, 1997 to July 30, 1997 considering that it would not also prove that he was not in Cebu on July 16 to 17, 1997. It is a known practice of students who are temporarily residing in Metro Manila to return to their provinces once in a while to spend time with their families. To prove that Larraaga was enrolled during a certain period of time does not negate the possibility that he went home to Cebu City sometime in July 1997 and stayed there for a while. Due process of law is not denied by the exclusion of irrelevant, immaterial, or incompetent evidence, or testimony of an incompetent witness.[105] It is not error to refuse evidence which although admissible for certain purposes, is not admissible for the purpose which counsel states as the ground for offering it.[106] To repeat, due process is satisfied when the parties are afforded a fair and reasonable opportunity to explain their respective sides of the controversy.[107] In the present case, there is no showing of violation of due process which justifies the reversal or setting aside of the trial court's findings. II. The Improper Discharge of Rusia as an Accused to be a State Witness Appellants argue that Rusia is not qualified to be a state witness under paragraphs (d) and (e) of Section 9, Rule 119 of the 1985 Rules on Criminal Procedure, which reads: "Sec. 9. Discharge of the accused to be state witness. When two or

more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witness for the state when after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that: xxx (d) Said accused does not appear to be most guilty; (e) Said accused has not at anytime been convicted of any offense involving moral turpitude. xxx" Appellants claim that Rusia was the "most guilty of both the charges of rape and kidnapping" having admitted in open court that he raped Jacqueline. Furthermore, Rusia admitted having been previously convicted in the United States of third degree burglary. It bears stressing that appellants were charged with kidnapping and illegal detention, Thus, Rusia's admission that he raped Jacqueline does not make him the "most guilty" of the crimes charged. Moreover, far from being the mastermind, his participation, as shown by the chronology of events, was limited to that of an oblivious follower who simply "joined the ride" as the commission of the crimes progressed. It may be recalled that he joined the group upon Rowen's promise that there would be a "big happening" on the night of July 16,

1997. All along, he thought the "big happening" was just another "group partying or scrounging." In other words, he had no inkling then of appellants' plan to kidnap and detain the Chiong sisters. Rusia retained his passive stance as Rowen and Josman grabbed Marijoy and Jacqueline at the waiting shed of Ayala Center. He just remained seated beside the driver's seat, not aiding Rowen and Josman in abducting the Chiong sisters. When Jacqueline attempted to escape 14 meters away from the waiting shed, it was Josman who chased her and not Rusia. Inside the car, it was Rowen who punched and handcuffed the Chiong sisters. At the safehouse of the "Josman Aznar Group," Rusia stayed at the living room while Larraaga, James Anthony, Rowen, and Josman molested Marijoy and Jacqueline on separate rooms. At Tan-awan, it was Josman who ordered Rowen and Ariel to pushed Marijoy into the deep ravine. And Rusia did not even know what ultimately happened to Jacqueline as he was the first to leave the group. Clearly, the extent of Rusia's participation in the crimes charged does not make him the "most guilty." The fact that Rusia was convicted of third degree burglary in Minessotta does not render his testimony inadmissible.[108] In People vs. De Guzman[109] we held that although the trial court may have erred in discharging the accused, such error would not affect the competency and the quality of the testimony of the defendant. In Mangubat vs. Sandiganbayan,[110] we ruled: "Anent the contention that Delia Preagido should not have been discharged as a state witness because of a 'previous final

conviction' of crimes involving moral turpitude, suffice it to say that 'this Court has time and again declared that even if the discharged state witness should lack some of the qualifications enumerated by Section 9, Rule 119 of the Rules of Court, his testimony will not, for that reason alone, be discarded or disregarded. In the discharge of a codefendant, the court may reasonably be expected to err; but such error in discharging an accused has been held not to be a reversible one. This is upon the principle that such error of the court does not affect the competency and the quality of the testimony of the discharged defendant." Furthermore, it may be recalled that Rusia was extremely bothered by his conscience and was having nightmares about the Chiong sisters, hence, he decided to come out in the open.[111] Such fact alone is a badge of truth of his testimony. But, more importantly, what makes Rusia's testimony worthy of belief is the marked compatibility between such testimony and the physical evidence. Physical evidence is an evidence of the highest order. It speaks eloquently than a hundred witnesses.[112] The presence of Marijoy's ravished body in a deep ravine at Tan-awan, Carcar with tape on her mouth and handcuffs on her wrists certainly bolstered Rusia's testimony on what actually took place from Ayala Center to Tanawan. Indeed, the details he supplied to the trial court were of such nature and quality that only a witness who actually saw the commission of the crimes could furnish. What is more, his testimony was corroborated by several other witnesses who saw incidents of what he narrated, thus:

(1) Rolando Dacillo and Mario Minoza saw Jacqueline's two failed attempts to escape from appellants; (2) Alfredo Duarte saw Rowen when he bought barbeque and Tanduay at Nene's Store while the white van, driven by Alfredo Cao, was waiting on the side of the road and he heard voices of "quarreling male and female" emanating from the van; (3) Manuel Camingao testified on the presence of Larraaga and Josman at Tan-awan, Carcar at dawn of July 17, 1997; and lastly, (4) Benjamin Molina and Miguel Vergara recognized Rowen as the person who inquired from them where he could find a vehicle for hire, on the evening of July 16, 1997. All these bits and pieces of story form part of Rusia's narration. With such strong anchorage on the testimonies of disinterested witnesses, how can we brush aside Rusia's testimony? Rusia's discharge has the effect of an acquittal.[113] We are not inclined to recall such discharge lest he will be placed in double jeopardy. Parenthetically, the order for his discharge may only be recalled in one instance, which is when he subsequently failed to testify against his co-accused. The fact that not all the requisites for his discharge are present is not a ground to recall the discharge order. Unless and until it is shown that the he failed or refused to testify against his co-accused, subsequent proof showing that any or all of the conditions listed in Sec. 9 of Rule 119 were not fulfilled would not wipe away the resulting acquittal.[114] III. Appreciation of the Evidence for the Prosecution and the Defen

Settled is the rule that the assessment of the credibility of witnesses is left largely to the trial court because of its opportunity, not available to the appellate court, to see the witnesses on the stand and determine by their demeanor whether they are testifying truthfully or lying through their teeth. Its evaluation of the credibility of witnesses is well-nigh conclusive on this Court, barring arbitrariness in arriving at his conclusions.[115] We reviewed the records exhaustively and found no compelling reason why we should deviate from the findings of fact and conclusion of law of the trial court. Rusia's detailed narration of the circumstances leading to the horrible death and disappearance of Jacqueline has all the earmarks of truth. Despite the rigid crossexamination conducted by the defense counsel, Rusia remained steadfast in his testimony. The other witnesses presented by the prosecution corroborated his narration as to its material points which reinforced its veracity. Appellants proffered the defense of denial and alibi. As between their mere denial and the positive identification and testimonies of the prosecution witnesses, we are convinced that the trial court did not err in according weight to the latter. For the defense of alibi to prosper, the accused must show that he was in another place at such a period of time that it was physically impossible for him to have been at the place where the crime was committed at the time of its commission.[116] These requirements of time and place must be strictly met.[117] A thorough

examination of the evidence for the defense shows that the appellants failed to meet these settled requirements. They failed to establish by clear and convincing evidence that it was physically impossible for them to be at the Ayala Center, Cebu City when the Chiong sisters were abducted. What is clear from the evidence is that Rowen, Josman, Ariel, Alberto, James Anthony and James Andrew were all within the vicinity of Cebu City on July 16, 1997. Not even Larraaga who claimed to be in Quezon City satisfied the required proof of physical impossibility. During the hearing, it was established that it takes only one (1) hour to travel by plane from Manila to Cebu and that there are four (4) airline companies plying the route. One of the defense witnesses admitted that there are several flights from Manila to Cebu each morning, afternoon and evening. Taking into account the mode and speed of transportation, it is therefore within the realm of possibility for Larraaga to be in Cebu City prior to or exactly on July 16, 1997. Larraaga's mother, Margarita Gonzales-Larraaga, testified that his son was scheduled to take a flight from Manila to Cebu on July 17, 1997 at 7:00 o'clock in the evening, but he was able to take an earlier flight at 5:00 o'clock in the afternoon. Margarita therefore claimed that his son was in Cebu City at around 6:00 o'clock in the evening of July 17, 1997 or the day after the commission of the crime. However, while Larraaga endeavored to prove that he went home to Cebu City from Manila only in the afternoon of July 17, 1997, he did not produce any evidence to show the

last time he went to Manila from Cebu prior to such crucial date. If he has a ticket of his flight to Cebu City on July 17, 1997, certainly, he should also have a ticket of his last flight to Manila prior thereto. If it was lost, evidence to that effect should have been presented before the trial court. Indeed, Larraaga's presence in Cebu City on July 16, 1997 proved to be not only a possibility but a reality. No less than four (4) witnesses for the prosecution identified him as one of the two men talking to Marijoy and Jacqueline on the night of July 16, 1997. Shiela Singson testified that on July 16, 1997, at around 7:20 in the evening, she saw Larraaga approach Marijoy and Jacqueline at the West Entry of Ayala Center. The incident reminded her of Jacqueline's prior story that he was Marijoy's admirer. She (Shiela) confirmed that she knows Larraaga since she had seen him on five (5) occasions. Analie Konahap also testified that on the same evening of July 16, 1997, at about 8:00 o'clock, she saw Marijoy and Jacqueline talking to two (2) men at the West Entry of Ayala Center. She recognized them as Larraaga and Josman, having seen them several times at Glicos, a game zone, located across her office at the third level of Ayala Center. Williard Redobles, the security guard then assigned at Ayala Center, corroborated the foregoing testimonies of Shiela and Analie. In addition, Rosendo Rio, a businessman from Cogon, Carcar, declared that he saw Larraaga at Tan-awan at about 3:30 in the morning of July 17, 1997. The latter was leaning against the hood of a white van.[118]

Taking the individual testimonies of the above witnesses and that of Rusia, it is reasonable to conclude that Larraaga was indeed in Cebu City at the time of the commission of the crimes and was one of the principal perpetrators. Of course, we have also weighed the testimonial and documentary evidence presented by appellants in support of their respective alibi. However, they proved to be wanting and incredible. Salvador Boton, the security guard assigned at the lobby of Loyola Heights Condominium, testified on the entry of Larraaga's name in the Condominium's logbook to prove that he was in Quezon City on the night of July 16, 1997. However, a cursory glance of the entry readily shows that it was written at the uppermost portion of the logbook and was not following the chronological order of the entries. Larraaga's 10:15 entry was written before the 10:05 entry which, in turn, was followed by a 10:25 entry. Not only that, the last entry at the prior page was 10:05. This renders the authenticity of the entries doubtful. It gives rise to the possibility that the 10:15 entry was written on a later date when all the spaces in the logbook were already filled up and thus, the only remaining spot was the uppermost portion. Surprisingly, the alleged arrival of Larraaga and his friend Richard Antonio at the Loyola Heights Condominium in the early evening of July 16, 1997 was not recorded in the logbook. Rowena Bautista, a teacher at the Center for Culinary Arts, Quezon

City, testified that Larraaga attended her lecture on Applied Mathematics on July 16, 1997 from 8:00 o'clock to 11:30 in the morning.[119] This runs counter to Larraaga's affidavit[120] stating that on the said date, he took his mid-term examinations in the subject Fundamentals of Cookery from 8:00 o'clock in the morning to 3:30 o'clock in the afternoon. With respect to Larraaga's friends, the contradictions in their testimonies, painstakingly outlined by the Solicitor General in the appellee's brief, reveal their unreliability. To our mind, while it may be possible that Larraaga took the mid-term examinations in Fundamentals of Cookery and that he and his friends attended a party at the R and R Bar and Restaurant, also in Quezon City, however it could be that those events occurred on a date other than July 16, 1997. Clotilde Soterol, in defense of Ariel and Alberto (the driver and the conductor of the van) attempted to discredit Rusia's testimony by testifying that the white van with plate no. GGC-491 could not have been used in the commission of the crimes on the night of July 16, 1997 because it was parked in her shop from 7:00 o'clock in the evening of the same date until 11:00 o'clock in the morning of July 17, 1997. What makes Soterol's testimony doubtful is her contradicting affidavits. In the first affidavit dated July 28, 1997, or twelve (12) days from the occurrence of the crime, she stated that Alberto took the van from her shop at 3:00 o'clock in the afternoon of July 16, 1997 and returned it for repair only on July 22, 1997.[121] But in her second affidavit dated

October 1, 1997, she declared that Alberto left the van in her shop at 7:00 o'clock in the evening of July 16, 1997 until 11:00 o'clock in the morning of July 17, 1997.[122] Surely, we cannot simply brush aside the discrepancy and accept the second affidavit as gospel truth. Appellants attempted to establish their defense of alibi through the testimonies of relatives and friends who obviously wanted them exculpated of the crimes charged. Naturally, we cannot but cast an eye of suspicion on their testimonies. In People vs. Ching,[123] we ruled that it is but natural, although morally unfair, for a close relative to give weight to blood ties and close relationship in times of dire needs especially when a criminal case is involved. Rusia positively identified the appellants. The settled rule is that positive identification of an accused by credible witnesses as the perpetrator of the crime demolishes alibi, the much abused sanctuary of felons.[124] Rusia's testimony was corroborated by several disinterested witnesses who also identified the appellants. Most of them are neither friends, relatives nor acquaintances of the victims' family. As we reviewed closely the transcript of stenographic notes, we could not discern any motive on their part why they should testify falsely against the appellants. In the same vein, it is improbable that the prosecution would tirelessly go through the rigors of litigation just to destroy innocent lives. Meanwhile, appellants argue that the prosecution failed to prove that the body found at the foot of a deep

ravine in Tan-awan, Carcar was that of Marijoy. We are not convinced. Rusia testified that Josman instructed Rowen "to get rid" of Marijoy and that following such instruction, Rowen and Ariel pushed her into the deep ravine. Furthermore, Inspector Edgardo Lenizo,[125] a fingerprint expert, testified that the fingerprints of the corpse matched those of Marijoy.[126] The packaging tape and the handcuff found on the dead body were the same items placed on Marijoy and Jacqueline while they were being detained.[127] The body had the same clothes worn by Marijoy on the day she was abducted.[128] The members of the Chiong family personally identified the corpse to be that of Marijoy[129] which they eventually buried. They erected commemorative markers at the ravine, cemetery and every place which mattered to Marijoy. Indeed, there is overwhelming and convincing evidence that it was the body of Marijoy that was found in the ravine. Appellants were charged with the crime of kidnapping and serious illegal detention in two (2) Informations and were convicted thereof. Article 267 of the Revised Penal Code, as amended by Section 8 of R.A. 7659, reads: "Art. 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or detain another, or in any other manner deprive him of liberty, shall suffer the penalty of reclusion perpetua to death; 1. If the kidnapping or detention shall have lasted more than three days.

2. If it shall have been committed simulating public authority. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made. 4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer. "The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above mentioned were present in the commission of the offense. "When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed The elements of the crime defined in Art. 267 above are: (a) the accused is a private individual; (b) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (c) the act of detention or kidnapping must be illegal; and (d) in the commission of the offense, any of the four (4) circumstances mentioned above is present.[130] There is clear and overwhelming evidence that appellants, who are private individuals, forcibly dragged Marijoy and Jacqueline into the white car, beat them so they would not be able to resist, and held them captive against their will. In fact, Jacqueline attempted to free herself twice from the clutches of appellants the first was near the Ayala Center and the second was in Tan-

awan, Carcar but both attempts failed. Marijoy was thrown to a deep ravine, resulting to her death. Jacqueline, on the other hand, has remained missing until now. Article 267 states that if the victim is killed or died as a consequence of the detention, or is raped or subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. In People vs. Ramos,[131] citing Parulan vs. Rodas,[132] and People vs. Mercado,[133] we held that this provision given rise to a special complex crime, thus: "Prior to 31 December 1993, the date of effectivity of RA No. 7659, the rule was that where the kidnapped victim was subsequently killed by his abductor, the crime committed would either be a complex crime of kidnapping with murder under Art 48 of the Revised Penal Code, or two (2) separate crimes of kidnapping and murder. Thus, where the accused kidnapped the victim for the purpose of killing him, and he was in fact killed by his abductor, the crime committed was the complex crime of kidnapping with murder under Art. 48 of the Revised Penal Code, as the kidnapping of the victim was a necessary means of committing the murder. On the other hand, where the victim was kidnapped not for the purpose of killing him but was subsequently slain as an afterthought, two (2) separate crimes of kidnapping and murder were committed. However, RA No. 7659 amended Art. 267 of The Revised Penal Code by adding thereto a last paragraph which provides When the victim is killed or dies as a consequence of the detention, or is

raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. This amendment introduced in our criminal statutes, the concept of 'special complex crime' of kidnapping with murder or homicide. It effectively eliminated the distinction drawn by the courts between those cases where the killing of the kidnapped victim was purposely sought by the accused, and those where the killing of the victim was not deliberately resorted to but was merely an afterthought. Consequently, the rule now is: Where the person kidnapped is killed in the course of the detention, regardless of whether the killing was purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no longer be complexed under Art. 48, nor be treated as separate crimes, but shall be punished as a special complex crime under the last paragraph of Art. 267, as amended by RA No. 7659." The prosecution was able to prove that Marijoy was pushed to a ravine and died. Both girls were raped by the gang. In committing the crimes, appellants subjected them to dehumanizing acts. Dehumanization means deprivation of human qualities, such as compassion.[134] From our review of the evidence presented, we found the following dehumanizing acts committed by appellants: (1) Marijoy and Jacqueline were handcuffed and their mouths mercilessly taped; (2) they were beaten to severe weakness during their detention; (3) Jacqueline was made to dance amidst the rough manners and lewd suggestions of the appellants; (4) she was taunted to run and forcibly dragged to the van; and 5) until now,

Jacqueline remains missing which aggravates the Chiong family's pain. All told, considering that the victims were raped, that Marijoy was killed and that both victims were subjected to dehumanizing acts, the imposition of the death penalty on the appellants is in order. Thus, we hold that all the appellants are guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape in Criminal Case No. CBU-45303 wherein Marijoy is the victim; and simple kidnapping and serious illegal detention in Criminal Case No. CBU-45304 wherein Jacqueline is the victim. A discussion on the nature of special complex crime is imperative. Where the law provides a single penalty for two or more component offenses, the resulting crime is called a special complex crime. Some of the special complex crimes under the Revised Penal Code are (1) robbery with homicide,[135] (2) robbery with rape,[136] (3) kidnapping with serious physical injuries,[137] (4) kidnapping with murder or homicide,[138] and (5) rape with homicide.[139] In a special complex crime, the prosecution must necessarily prove each of the component offenses with the same precision that would be necessary if they were made the subject of separate complaints. As earlier mentioned, R.A. No. 7659 amended Article 267 of the Revised Penal Code by adding thereto this provision: "When the victim is killed or dies as a consequence of the detention, or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed;

and that this provision gives rise to a special complex crime. In the cases at bar, particularly Criminal Case No. CBU-45303, the Information specifically alleges that the victim Marijoy was raped "on the occasion and in connection" with her detention and was killed "subsequent thereto and on the occasion thereof." Considering that the prosecution was able to prove each of the component offenses, appellants should be convicted of the special complex crime of kidnapping and serious illegal detention with homicide and rape. It appearing from the overwhelming evidence of the prosecution that there is a "direct relation, and intimate connection"[140] between the kidnapping, killing and raping of Marijoy, rape cannot be considered merely as an aggravating circumstance but as a component offense forming part of the herein special complex crime. It bears reiterating that in People vs. Ramos,[141] and People vs. Mercado,[142] interpreting Article 267, we ruled that "where the person killed in the course of the detention, regardless of whether the killing was purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no longer be complexed under Article 48, nor be treated as separate crimes, but shall be punished as a special complex crime under the last paragraph of Article 267." The same principle applies here. The kidnapping and serious illegal detention can no longer be complexed under Article 48, nor be treated as separate crime but shall be punished as a special complex crime. At any rate, the technical designation of the crime is of no consequence in the imposition of the

penalty considering that kidnapping and serious illegal detention if complexed with either homicide or rape, still, the maximum penalty of death shall be imposed. Anent Criminal Case No. CBU-45304 wherein Jacqueline is the victim, the penalty of reclusion perpetua shall be imposed upon appellants considering that the abovementioned component offenses were not alleged in the Information as required under Sections 8 and 9,[143] Rule 110 of the Revised Rules of Criminal Procedure. Consistent with appellants right to be informed of the nature and cause of the accusation against him, these attendant circumstances or component offenses must be specifically pleaded or alleged with certainty in the information and proven during the trial. Otherwise, they cannot give rise to a special complex crime, as in this case. Hence, the crime committed is only simple kidnapping and serious illegal detention. From the evidence of the prosecution, there is no doubt that all the appellants conspired in the commission of the crimes charged. Their concerted actions point to their joint purpose and community of intent. Well settled is the rule that in conspiracy, direct proof of a previous agreement to commit a crime is not necessary. It may be deduced from the mode and manner by which the offense was perpetrated, or inferred from the acts of the accused themselves when such point to a joint design and community of interest.[144] Otherwise stated, it may be shown by the conduct of the accused before, during, and after the commission of

the crime.[145] Appellants' actions showed that they have the same objective to kidnap and detain the Chiong sisters. Rowen and Josman grabbed Marijoy and Jacqueline from the vicinity of Ayala Center. Larraaga, James Andrew and James Anthony who were riding a red car served as back-up of Rowen and Josman. Together in a convoy, they proceeded to Fuente Osmea to hire a van, and thereafter, to the safehouse of the "Jozman Aznar Group" in Guadalupe, Cebu where they initially molested Marijoy and Jacqueline. They headed to the South Bus Terminal where they hired the white van driven by Alberto, with Ariel as the conductor. Except for James Andrew who drove the white car, all appellants boarded the white van where they held Marijoy and Jacqueline captive. In the van, James Anthony taped their mouths and Rowen handcuffed them together. They drank and had a pot session at Tan-awan. They encircled Jacqueline and ordered her to dance, pushing her and ripping her clothes in the process. Meanwhile, Larraaga raped Marijoy, followed by Rowen, James Anthony, Alberto, and Ariel. On other hand, Josman and James Andrew raped Jacqueline. Upon Josman's order, Rowen and Ariel led Marijoy to the cliff and pushed her. After leaving Tan-awan, they taunted Jacqueline to run for her life. And when Rusia got off from the van near Ayala Center, the appellants jointly headed back to Cebu City. Clearly, the argument of Rowen, Ariel and Alberto that they were not part of the "conspiracy" as they were merely present during the perpetration of the crimes charged but not participants therein, is bereft of merit. To hold an accused guilty as

co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the complicity.[146] There must be intentional participation in the transaction with a view to the furtherance of the common design and purpose.[147] Responsibility of a conspirator is not confined to the accomplishment of a particular purpose of conspiracy but extends to collateral acts and offenses incident to and growing out of the purpose intended.[148] As shown by the evidence for the prosecution, Rowen, Ariel and Alberto were not merely present at the scene of the crime. Indeed, all appellants, except James Anthony who was 16 years old when the crimes charged were committed, share the same degree of responsibility for their criminal acts. Under Article 68[149] of the Revised Penal Code, the imposable penalty on James Anthony, by reason of his minority, is one degree lower than the statutory penalty. This means that he stands to suffer the penalty of reclusion perpetua in Criminal Case No. CBU-45303 and twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum, in Criminal Case No. CBU45304. The penalty for the special complex crime of kidnapping and serious illegal detention with homicide and rape, being death, one degree lower therefrom is reclusion perpetua.[150] On the other hand, the penalty for simple kidnapping and serious illegal detention is reclusion perpetua to death. One degree lower from the said penalty is reclusion temporal.[151] There being no aggravating and mitigating

circumstance, the penalty to be imposed on James Anthony is reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, he should be sentenced to suffer the penalty of twelve (12) years of prision mayor in its maximum period, as minimum, to seventeen (17) years of reclusion temporal in its medium period, as maximum.[152] As for the rest of the appellants, the foregoing established facts call for the imposition on them of the death penalty in Criminal Case No. CBU45303 and reclusion perpetua in Criminal Case No. CBU-45304. It is therefore clear that the trial court erred in merely imposing "two (2) Reclusiones Perpetua," rationalizing that justice must be tempered with mercy. We must be reminded that justice is not ours to give according to our sentiments or emotions. It is in the law which we must faithfully implement. At times we may show compassion and mercy but not at the expense of the broader interest of fair play and justice. While we also find it difficult to mete out the penalty of death especially on young men who could have led productive and promising lives if only they were given enough guidance, however, we can never go against what is laid down in our statute books and established jurisprudence. In keeping with the current jurisprudence, the heirs of Marijoy and Jacqueline are entitled to the amount of P100,000.00 in each case by way of civil indemnity ex delicto.[153] As regards the actual damages, it appears that the award of P200,000.00 is not supported by

evidence. To be entitled to actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable to the injured party.[154] Thus, in light of the recent case of People vs. Abrazaldo,[155] we grant the award of P25,000.00 as temperate damages in each case, in lieu of actual damages. There being proofs that the victims' heirs suffered wounded feelings, mental anguish, anxiety and similar injury, we award an equitable amount of P150,000.00 as moral damages, also in each case. Exemplary damages is pegged at P100,000.00 in each case[156] to serve as a deterrent to serious wrongdoings and as a vindication of undue sufferings and wanton invasion of the rights of the victims and as punishment for those guilty of outrageous conduct. WHEREFORE, the Decision of the Regional Trial Court, Branch 7, Cebu City in Criminal Cases Nos. CBU45303 and 45304 is AFFIRMED with the following MODIFICATIONS: (1) In Criminal Case No. CBU-45303, appellants FRANCISCO JUAN LARRAAGA alias "PACO;" JOSMAN AZNAR; ROWEN ADLAWAN alias "WESLEY;" ALBERTO CAO alias "ALLAN PAHAK;" ARIEL BALANSAG; and JAMES ANDREW UY alias "MM," are found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and are sentenced to suffer the penalty of DEATH by lethal injection; (2) In Criminal Case No. CBU-45304, appellants FRANCISCO JUAN LARRAAGA alias "PACO;" JOSMAN

AZNAR; ROWEN ADLAWAN alias "WESLEY;" ALBERTO CAO alias "ALLAN PAHAK;" ARIEL BALANSAG; and JAMES ANDREW UY alias "MM," are found guilty beyond reasonable doubt of simple kidnapping and serious illegal detention and are sentenced to suffer penalty of RECLUSION PERPETUA; (3) In Criminal Case No. CBU-45303, appellant JAMES ANTHONY UY, who was a minor at the time the crime was committed, is likewise found guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA; in Criminal Case No. CBU-45304, he is declared guilty of simple kidnapping and serious illegal detention and is sentenced to suffer the penalty of twelve (12) years of prision mayor in its maximum period, as MINIMUM, to seventeen (17) years of reclusion temporal in its medium period, as MAXIMUM. (4) Appellants are ordered to pay jointly and severally the heirs of Marijoy and Jacqueline, in each case, the amounts of (a) P100,000.00 as civil indemnity, (b) P25,000.00 as temperate damages, (c) P150,000.00 as moral damages, and (d) P100,000.00 as exemplary damages. Three (3) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death penalty can be lawfully imposed in the case at bar.

In accordance with Article 83 of The Revised Penal Code, as amended by Section 25 of RA No. 7659, upon the finality of this Decision let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of Her Excellency's pardoning power. SO ORDERED.

SECOND DIVISION [G.R. No. 145927, August 24, 2007] SIMON FERNAN, JR. AND EXPEDITO TORREVILAS,[1] PETITIONERS, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT. DECISION VELASCO, JR., J.: The instant petition under Rule 45 originated from 119 criminal cases[2] filed with the Sandiganbayan (SB) involving no less than 36 former officials and employees of the then Ministry of Public Highways (MPH) and several suppliers of construction materials for defalcation of public funds arising from numerous transactions in the Cebu First Highway Engineering District in 1977. Because of the sheer magnitude of the illegal transactions, the number of people involved, and the ingenious scheme employed in defrauding the government, this infamous 86 million highway scam has few parallels in the annals of crime in the country. The Case

2866, 2867, 2868, 2869, 2870, 2871, 2872, 2873, 2874, 2875, 2876, 2877, 2878, 2879, 2880, 2881, 2882, 2883, 2884, 2885, 2886, 2887, 2888, 2889, 2890, 2891, 2892, 2893, 2894, 2895, 2896, 2897, 2898, 2899, 2900, 2901, 2902, 2903, 2904, 2905, 2906, 2907, 2908, 2909, 2910, 2911, 2912, 2913, 2915, 2917, 2918, 2919, 2920, 2921, 2922, 2923, 2924, 2925, 2926, 2927, 2928, 2929, 2930, 2931, 2932, 2936, 2937, 2938, and 2939,[4] all entitled People of the Philippines v. Rocilo Neis, et al., finding them guilty of multiple instances of estafa through falsification of public documents;[5] and the subsequent August 29, 2000 SB Resolution which denied their separate pleas for reconsideration. Petitioner Fernan, Jr. disputes the adverse judgment in only six (6) cases, namely: 2879, 2880, 2881, 2885, 2914, and 2918; while petitioner Torrevillas seeks exoneration in nine (9) cases, namely: 2855, 2856, 2858, 2859, 2909, 2910, 2914, 2919, and 2932. Both petitioners assert their strong belief that their guilt has not been established beyond reasonable doubt and, hence, exculpation is in order. The Facts

Petitioners Simon Fernan, Jr. and Expedito Torrevillas seek the reversal of the December 4, 1997 Decision[3] of the SB in the consolidated Criminal Case Nos. 1640, 1641, 1642, 1643, 1818, 1819, 1820, 1821, 1822, 1823, 1879, 1880, 1881, 1882, 1883, 1884, 1885, 1886, 1887, 1888, 1889, 2839, 2840, 2841, 2842, 2843, 2844, 2845, 2846, 2847, 2848, 2849, 2850, 2851, 2852, 2853, 2854, 2855, 2856, 2857, 2858, 2859, 2860, 2861, 2862, 2863, 2864, 2865,

The SB culled the facts[6] this way: On June 21, 1978, COA Regional Director Sofronio Flores Jr. of COA Regional Office No. 7, directed auditors Victoria C. Quejada and Ruth I. Paredes to verify and submit a report on sub-allotment advises issued to various highway engineering districts in Cebu, particularly, the Cebu City, Cebu 1st, Cebu 2nd and the Mandaue City Highway Engineering Districts.

Complying with the directive, they conducted an investigation and in due course submitted their findings. Their report (Exhibit C) confirmed the issuance of fake Letters of Advice of Allotments (LAAs) in the districts mentioned. They discovered that two sets of LAAs were received by the districts. One set consists of regular LAAs which clearly indicated the covering sub-allotment advices and were duly signed by Mrs. Angelina Escao, Finance Officer of the MPH Regional Office. The LAAs were numbered in proper sequence and duly recorded in the logbook of the Accounting, Budget and Finance Division. The other set consists of fake LAAs which do not indicate the covering sub-allotment advice and were signed by Chief Accountant Rolando Mangubat and Engr. Jose Bagasao, instead of the Finance Officer. These fake LAAs were not numbered in proper sequence; they were mostly undated and were sometimes duplicated. They could not be traced to the files and records of the Accounting, Budget and Finance Division. The accounting entry for the disbursements made on the fake LAAs was debited to the Accounts-Payable Unliquidated Obligations (8-81-400) and credited to the Checking Account with the Bureau of Treasury (8-70-790). Nevertheless, the expenditures were taken from obligations of the current year (1978) because all the supporting papers of the payment vouchers were dated in that year. The entries in the journal vouchers filed with the MPH Regional Office were adjusted every month to 8-81400 (unliquidated or prior years obligation), 8-83-000 (liquidated or current year obligations) and 8-70700 (Treasury/Agency Account). All of these were approved for the

Finance Officer by Chief Accountant Rolando Mangubat. Mangubat, however, had no authority to approve them because since October 1977, he had already been detailed to the MPH Central Office. There were indications that the practice had been going on for years. xxxx Due to these serious irregularities, then President Marcos created a Special Cabinet Committee on MPH Region VII "Ghost Projects Anomalies" which in turn organized a Special Task Force composed of representatives from the Finance Ministry Intelligence Bureau (FMIB), National Bureau of Investigation (NBI), the Bureau of Treasury and the Commission on Audit. The mission of the task force was to conduct a wider and more extended investigation in all the fifteen (15) highway engineering districts of MPH Region VII, including the Cebu First Highway Engineering District, the 1977 questionable disbursements of which are the subject matter of these cases. xxxx For a better understanding of these highways cases, the flow in the release of funds to the various agencies of the government and the control devices set up for disbursement and accounting of public funds should first be explained. A chart (Exhibit B) graphically shows the flow of allotments from the Ministry down to the district level. On the basis of appropriation laws and upon request made by heads of agencies, the then Ministry of Budget

released funds to the various agencies of the government by means of an Advice of Allotment (AA) and a Cash Disbursement Ceiling (CDC). The Advice of Allotment is an authority for the agency to incur obligations within a specified amount in accordance with approved programs and projects. The Cash Disbursement Ceiling is an authority to pay. Upon receipt of the AA and CDC from the Budget, the Central Office of the agency prepares the Sub-Advice of Allotment (SAA) and the Advice of Cash Disbursement Ceiling (ACDC) for each region, in accordance with the disbursement allotment. These are sent to the Regional Office. Upon receipt, the Budget Officer of the region prepares the corresponding Letters of Advice of Allotment (LAA) which are forwarded to the various districts of the region (The amount that goes to each district is already indicated in the Advice of Allotment). Only upon receipt of the LAA is the district office authorized to incur obligations. Now, how are funds released by the Regional Office to the different districts and ultimately paid out to contractors, the District Engineer submits to the Regional Director a request for allotment in accordance with the program of work prepared by the former. This procedure starts with the preparation of a Requisition for Supplies and Equipment (RSE) in the District Office by the Senior Civil Engineer, approved by the District Engineer, and signed by the Chief Accountant of the Highway Engineering District, who certifies as to the availability of funds. The RSE is then submitted to the Regional Director for approval. Once it is approved, a Request for Obligation

of Allotment (ROA) is prepared by the Chief Accountant of the district Senior Civil Engineer. The ROA signifies that a certain amount of district funds has been set aside or earmarked for the particular expenditures stated in the RSE. On the basis of the ROA, the District Office puts up advertisements, [conducts] biddings, makes awards and prepares purchase orders which are served on the winning bidder. The District Office also prepares a summary of deliveries with the corresponding delivery receipts and tally sheets, conducts inspection and prepares the General Voucher for the payment of deliveries. Once the General Voucher (GV) has been prepared, the corresponding check in the form of a Treasury Check Account for Agency (TCAA) is drawn by the Disbursing Officer and finally released to the contractor. At the end of every month, the Report of Checks Issued by Deputized Disbursing Officer (RCIDD) is prepared, listing all the checks issued during that period. The RCIDDO is submitted to the accounting division of the region. Upon receipt of the RCIDDO, the Regional Office draws a journal voucher, debiting the account obligation (liquidated or unliquidated obligation, whichever is applicable), and crediting the account Treasury Check Account for Agency (TCAA). The RCIDDO is recorded in the Journal of Checks Issued by Deputized Disbursing Officers (JCIDDO) and posted in the general ledger at the end of each month. Simultaneous with the flow of the RCIDDO, the ROAs are summarized in the Reports of Obligations

Incurred (ROI) in the District Office, once or twice a month, depending upon the volume of transactions. The ROI is then submitted to the Regional Office. Upon receipt of the ROI, the accountant of the Regional Office draws a journal voucher taking up the following entry: debiting the appropriation allotted (0-90-000) and crediting the obligation incurred (0-82-000). This is recorded in the general voucher and posted to the general ledger at the end of each month. The journal voucher is prepared, closing the account 8-70-709 to 8-71-100-199 at the end of each month. It is also recorded and posted to the general ledger. At the end of the month, the balances of each account shown in the general ledger are summarized in a statement called the trial balance. The trial balance is submitted to the MPH Central Office in Manila where it is consolidated with other trial balances submitted by other regional offices. xxxx The elaborate accounting procedure described above with its system of controls was set up obviously to make sure that government funds are properly released, disbursed and accounted for. In the hands of untrustworthy guardians of the public purse, however, it proved to be inadequate. There were loopholes which an unscrupulous person adroit in government accounting could take advantage of to surreptitiously draw enormous sums of money from the government. Sometime in February, 1977, accused Rolando Mangubat (Chief Accountant), Delia Preagido

(Accountant III), Jose Sayson (Budget Examiner), and Edgardo Cruz (Clerk II), all of MPH Region VII, met at the Town and Country Restaurant in Cebu City and hatched an ingenious plan to siphon off large sums of money from government coffers. Mangubat had found a way to withdraw government money through the use of fake LAAs, vouchers and other documents and to conceal traces thereof with the connivance of other government officials and employees. In fine, the fraudulent scheme involved the splitting of LAAs and RSEs so that the amount covered by each general voucher is less than P50,000.00 to do away with the approval of the Regional Auditor; the charging of disbursements to unliquidated obligations due the previous year to provide the supposed source of funds; and the manipulation of the books of account by negation or adjustment, i.e., the cancellation of checks through journal vouchers to conceal disbursements in excess of the cash disbursement ceiling (CDC), so as not to reflect such disbursements in the trial balances submitted to the Regional Office. Mangubat enticed Preagido, Cruz and Sayson to join him. All three agreed to help him carry out his plan. They typed the fake LAAs during Saturdays. Cruz and Sayson also took charge of negotiating or selling the fake LAAs to contractors at 26% of the gross amount. Preagido on her part manipulated the General Ledger, Journal Vouchers and General Journal thru negative entries to conceal the illegal disbursements. Thus, in the initial report of the auditors (Exhibit D), it was discovered that the doubtful allotments and other anomalies

escaped notice due to the following manipulations: "The letter-advices covering such allotments (LAA) were generally not signed by the Finance Officer nor recorded in the books of accounts. Disbursements made on the basis of these fake LAAs were charged to the unliquidated Obligations (Account 881-400), although the obligations being paid were not among those certified to the unliquidated obligations (Account 8-81-400) at the end of the preceding year. To conceal the overcharges to authorized allotments, account 8-81400 and the excess of checks issued over authorized cash disbursements ceiling, adjustments were prepared monthly through journal vouchers to take up the negative debit to Account 8-81-400 and a negative credit to the Treasury Checking Account for Agencies Account 8-70790. These journal vouchers in effect cancelled the previous entry to record the disbursements made on the basis of the fake LAAs. Thus, the affected accounts (Accounts 8-81400 and 8-70-790), as appearing in the trial balance would not show the irregularity. The checks, however, were actually issued." The four formed the nucleus of the nefarious conspiracy. Other government employees, tempted by the prospect of earning big money, allowed their names to be used and signed spurious documents. Although the anomalies had been going on for sometime (February 1977 to June 1978), the PNB and Bureau of Treasury had no inkling about it until the NBI busted the illegal operations. (Some of the recipients of the stolen funds spent lavishly and bought two cars at a time). The reason for this is that, at

that time, the PNB and Bureau of Treasury were not furnished copy of the mother CDC and the local branch of the PNB did not receive independent advice from the PNB head office in Manila. There were no deposits of money made with the PNB from which withdrawals could be charged. Only CDCs were presented to it, and not knowing that some of the CDCs were fake, the PNB branch paid out the checks drawn against them. The bank had also no way of knowing what amount was appropriated for the district; consequently, it did not know if the limit had already been exceeded. Only an insider steep in government accounting, auditing and banking procedures, particularly their flaws and loopholes, could have pulled off such an ingenious and audacious plan. xxxx Focusing our attention now on the anomalies committed in the Cebu First District Engineering District, hereinafter referred to as the Cebu First HED for brevity, the Court finds that the same pattern of fraud employed in the other highway engineering districts in MPH Region VII was followed. The Cebu First HED received from Region VII thirtyfour Letters of Advice of Allotment (LAAs) in the total sum of P4,734,336.50 and twenty-nine (29) corresponding Sub-Advices of Cash Disbursement Ceiling (SACDCs), amounting to P5,160,677.04 for the period January 1, 1977 to December 31, 1977. But apart from this, the Cebu First HED appears to have also received for the same period another set of eighty-four (84) LAAs amounting to P4,680,694.76 which however, could not be traced to any

Sub-Advice of Allotment (SAA) or matched to the Advices of Cash Disbursement Ceiling (ACDCs) received from the MPH and Regional Office. This is highly irregular and not in consonance with accounting procedures. It was also made to appear that the payments were made for alleged prior year's obligations and chargeable to Account 8-81-400, obviously because, they were not properly funded. Furthermore, the list of projects in Region VII for 1977 showed that Cebu First HED completed rehabilitation and/or improvement of roads and bridges in its districts from February to May 1977, with expenditures amounting to P613,812.00. On the other hand, the expenditures for barangay roads in the same district in 1977 amounted to P140,692.00, and these were all completed within the period from November to December, 1977. These completed projects were properly funded by legitimate LAAs and CDCs in the total amount of only P754,504.00. However, an additional amount of P3,839,810.74 was spent by the Cebu First HED for maintenance of roads and bridges for the same year (1977) but the same could not be traced to any authoritative document coming from the MPH. xxxx A total of 132 General Vouchers, emanating from fake LAAs and ACDCs, were traced back to Rolando Mangubat, Regional Accountant of Region VII and Adventor Fernandez, Regional Highway Engineer, also of Region VII. Those LAAs and ACDCs became the vehicles in the disbursement of funds amounting to

P3,839,810.74, through the vouchers purportedly issued for the purchase and delivery of the aforementioned materials allegedly used for the maintenance and repair of the national highways within the Cebu First HED. Despite the enormous additional expenditure of P3,839,810.74, the roads and bridges in the district, as found out by the NBI, did not show any improvement. As testified to by several barangay captains, the road maintenance consisted merely of spreading anapog or limestone on potholes of the national highway. Obviously, the vouchers for payments of alleged maintenance of roads and bridges in the additional amount of P3,839,810.74 were prepared for no other purpose than to siphon the said amount from the government coffer into the pockets of some officials and employees of Region VII and the Cebu First HED, as well as the suppliers and contractors who conspired and confederated with them. The nuclei of this massive conspiracy, namely: Rolando Mangubat, Jose Sayson, and Edgardo Cruz, all of MPH Region VII, were found guilty in all 119 counts and were accordingly sentenced by the SB. The other conniver, Delia Preagido, after being found guilty in some of the cases, became a state witness in the remainder. On the basis of her testimony and pertinent documents, Informations were filed, convictions were obtained, and criminal penalties were imposed on the rest of the accused. On the other hand, petitioners were both Civil Engineers of the MPH assigned to the Cebu First Highway Engineering District. Petitioner

Fernan, Jr. was included among the accused in Criminal Case Nos. 2879, 2880, 2881, 2885, 2914, and 2918 allegedly for having signed six (6) tally sheets or statements of deliveries of materials, used as bases for the preparation of the corresponding number of general vouchers. Fund releases were made to the suppliers, contractors, and payees based on these general vouchers. The Information against Fernan, Jr. in SB Criminal Case No. 2879 reads as follows: The undersigned accuses Rocilo Neis, Rolando Mangubat, Adventor Fernandez, Angelina Escao, Delia Preagido, Camilo de Letran, Manuel de Veyra, Heracleo Faelnar, Basilisa Galvan, Matilde Jabalde, Josefina Luna, Jose Sayson, Edgardo Cruz, Leonila del Rosario, Engracia Escobar, Abelardo Cardona, Leonardo Tordecilla, Agripino Pagdanganan, Ramon Quirante, Mariano Montera, Mariano Jarina, Leo Villagonzalo, Asterio Buqueron, Zosimo Mendez, Simon Fernan, Jr. and Juliana de los Angeles for estafa thru falsification of public and commercial documents, committed as follows: That on, about and during the period from December 1, 1976 up to January 31, 1977, both dates inclusive, in the City of Cebu and in Cebu Province, and within the jurisdiction of this Honorable Court, the accused Rocilo Neis, Assistant District Engineer of Cebu HED I; Rolando Mangubat, the Chief Accountant of Region VII of the Ministry of Public Highways and Adventor Fernandez, Regional Highway Engineer of same Regional Office, conniving with each other to defraud the Philippine Government

with the indispensable cooperation and assistance of Angelina Escao, Finance Officer of Region VII of the Ministry of Public Highways; Delia Preagido, Assistant Chief Accountant of same Regional Office; Camilo de Letran, Chief Accountant of Cebu I HED; Manuel de Veyra, Regional Director, MPH, Region VII; Heracleo Faelnar, then Assistant Director MPH Region VII; Basilisa Galvan, Budget Officer, MPH, Region VII; Matilde Jabalde, Supervising Accounting Clerk, MPH, Region VII; Josefina Luna, Accountant II, MPH, Region VII; Jose Sayson, Budget Examiner, MPH, Region VII, Edgardo Cruz, Accountant I, MPH, Region VII; Leonila del Rosario, Chief Finance and Management Service, MPH, Central Office; Engracia Escobar, Chief Accountant, MPH, Central Office; Abelardo Cardona, Assistant Chief Accountant, MPH, Central Office; Leonardo Tordecilla, Supervising Accountant, MPH, Central Office; Agripino Pagdanganan, Budget Officer III, MPH, Central Office; Ramon Quirante, Property Custodian of Cebu I HED; Mariano Montera, Senior Civil Engineer Engineer of Cebu I HED; Mariano Jarina, Clerk in the Property Division of Cebu I HED; Leo Villagonzalo, Auditor's Aide of Cebu I HED; Zosimo Mendez, Auditor of Cebu I HED; Asterio Buqueron, Administrative Officer of Cebu I HED; Simon Fernan, Jr., Civil Engineer of Cebu I HED and Juliana de los Angeles, an alleged supplier, all of whom took advantage of their official positions, with the exception of Juliana de los Angeles, mutually helping each other did then and there willfully, unlawfully and feloniously falsify and/or cause the falsification of the following documents, to wit:

Request for Allocation of Allotment Letter of Advice of Allotment Advice of Cash Disbursement Ceiling General Voucher No. B-15 Check No. 9933064 Abstract of Bids Purchase Order Statement of Delivery Report of Inspection Requisition for Supplies or Equipment Trial Balance by making it appear that Regional Office No. VII of the Ministry of Public Highways regularly issued an advice of cash disbursement ceiling (ACDC) and the corresponding letter of advice of allotment (LAA) to cover the purchase of 1,400 cu. m. of item 108[7] for use in the repair of the Cebu Hagnaya Wharf road from Km. 50.30 to Km. 60.00, when in truth and in fact, as all the accused knew, the same were not true and correct; by making it appear in the voucher that funds were available and that there were appropriate requests for allotments (ROA) to pay the aforesaid purchase; that a requisition for said item was made and approved; that a regular bidding was held; that a corresponding purchase order was issued in favor of the winning bidder; that the road construction materials were delivered, inspected and used in the supposed project and that the alleged supplier was entitled to payment when in truth and in fact,

as all the accused know, all of the foregoing were false and incorrect and because of the foregoing falsifications, the above-named accused were able to collect from the Cebu I HED the total amount of TWENTY EIGHT THOUSAND PESOS (P28,000.00), Philippine Currency, in payment of the non-existing deliveries; that the said amount of P28,000.00 was not reflected in the monthly trial balance submitted to the Central Office by Region VII showing its financial condition as the same was negated thru the journal voucher, as a designed means to cover-up the fraud; and the accused, once in possession of the said amount, misappropriated, converted and misapplied the same for their personal needs, to the damage and prejudice of the Philippine Government in the total amount of TWENTY EIGHT THOUSAND PESOS (P28,000.00), Philippine Currency. CONTRARY TO LAW. The Informations in the six (6) cases involving Fernan, Jr. were essentially identical save for the details as highlighted in boldface above. For ease of reference, Fernan, Jr.'s criminal cases are detailed below: Criminal Case No. Dates of Commission Main Documents Falsified Items Allegedly Purchased Amount of Fraud 2879 December 1, 1976 up to January 31, 1977 1. General Voucher No. B-15;2. Check No. 9933064; 1,400 cu. m. of item 108 for use in the repair of the Cebu Hagnaya Wharf road from Km. 50.30 to Km. 60.00 PhP 28,000.00 2880 December 1, 1976 up to January 31, 1977

1. Request for Allocation of Allotment 101-12-105-76; 2. General Voucher No. B-55; 3. Check No. 9933104; 1,400 cu. m. of item 108 for use in the repair of the Bogo-CurvaMedellon road from Km. 110.00 to Km. 119.00 PhP 28,000.00 2881 January 2, 1977 up to February 28, 1977 1. Request for Allocation of Allotment 101-2-56-77; 2. General Voucher No. B-245; 3. Check No. 9933294; Approximately 1,500 cu. m. of item 108 for use in the repair and rehabilitation of damaged roads and bridges by Typhoon Aring at the Tabogon-Bogo provincial road from Km. 92 to Km. 98 PhP 31,000.00 2885 January 2, 1977 up to January 31, 1977 1. Request for Allocation of Allotment 101-12-112-76; 2. General Voucher No. B-76; 3. Check No. 9933125; materials for use in the repair and rehabilitation of the Daan-Bantayan road from Km. 127.00 to Km. 136 PhP 30,000.00 2914 October 1, 1977 up to November 30, 1977 1. General Voucher No. B-927; 2. Check No. 9403425; 1,200 cu. m. of item 108 for use in the rehabilitation of the Cajel-Lugo, Barbon barangay road PhP 27,000.00 2918 January 2, 1977 up to February 28, 1977 1. General Voucher No. B-107; 2. Check No. 9933157; 1,500 cu. m. of item 108 for the rehabilitation of the Cebu North Hagnaya Wharf road from Km. 71 to Km. 76 PhP 30,000.00

On the other hand, petitioner Torrevillas was one of the accused in Criminal Case Nos. 2855, 2856, 2858, 2859, 2909, 2910, 2914, 2919, and 2932. The Information against Torrevillas in SB Criminal Case No. 2855 reads as follows: The undersigned accuses Rocilo Neis, Rolando Mangubat, Adventor Fernandez, Angelina Escao, Delia Preagido, Camilo de Letran, Manuel de Veyra, Heracleo Faelnar, Basilisa Galvan, Matilde Jabalde, Josefina Luna, Jose Sayson, Edgardo Cruz, Leonila del Rosario, Engracia Escobar, Abelardo Cardona, Leonardo Tordecilla, Agripino Pagdanganan, Ramon Quirante, Jorge de la Pea, Leo Villagonzalo, Asterio Buqueron, Expedito Torrevillas, Mariano Montera and Rufino V. Nuez for estafa thru falsification of public and commercial documents, committed as follows: That on, about and during the period from June 1, 1977 up to June 30, 1977, both dates inclusive, in the City of Cebu and in Cebu Province, and within the jurisdiction of this Honorable Court, the accused Rocilo Neis, Assistant District Engineer of Cebu HED I; Rolando Mangubat, the Chief Accountant of Region VII of the Ministry of Public Highways and Adventor Fernandez, Regional Highway Engineer of same Regional Office, conniving with each other to defraud the Philippine Government with the indispensable cooperation and assistance of Angelina Escao, Finance Officer of Region VII of the Ministry of Public Highways; Delia Preagido, Assistant Chief Accountant of same Regional Office; Camilo de Letran, Chief Accountant of Cebu I

HED; Manuel de Veyra, Regional Director, MPH, Region VII; Heracleo Faelnar, then Assistant Director MPH Region VII; Basilisa Galvan, Budget Officer, MPH, Region VII; Matilde Jabalde, Supervising Accounting Clerk, MPH, Region VII; Josefina Luna, Accountant II, MPH, Region VII; Jose Sayson, Budget Examiner, MPH, Region VII, Edgardo Cruz, Accountant I, MPH, Region VII; Leonila del Rosario, Chief Finance and Management Service, MPH, Central Office; Engracia Escobar, Chief Accountant, MPH, Central Office; Abelardo Cardona, Assistant Chief Accountant, MPH, Central Office; Leonardo Tordecilla, Supervising Accountant, MPH, Central Office; Agripino Pagdanganan, Budget Officer III, MPH, Central Office; Ramon Quirante, Property Custodian of Cebu I HED; Jorge de la Pea, Auditor of Cebu I HED; Leo Villagonzalo, Auditor's Aide of Cebu I HED; Asterio Buqueron, Administrative Officer of Cebu I HED; Expedito Torrevillas, representative of the Engineer's Office, Cebu I HED; Mariano Montera, Senior Civil Engineer Engineer of Cebu I HED; and Rufino V. Nuez, an alleged supplier, all of whom took advantage of their official positions, with the exception of Rufino V. Nuez, mutually helping each other did then and there willfully, unlawfully and feloniously falsify and/or cause the falsification of the following documents, to wit: Request for Allocation of Allotment 101-10-186-76; 10-190-76; 10-19276; 10-188-76; 10-180-76 Letter of Advice of Allotment Advice of Cash Disbursement Ceiling

General Voucher No. B-613 Check No. 9403099 Abstract of Bids Purchase Order Statement of Delivery Report of Inspection Requisition for Supplies or Equipment Trial Balance by making it appear that Regional Office No. VII of the Ministry of Public Highways regularly issued an advice of cash disbursement ceiling (ACDC) and the corresponding letter of advice of allotment (LAA) to cover the purchase of 153.63 m. t. of item 310[8] for use in asphalting of the Toledo-Tabuelan road at Km. 108.34 to Km. 109.52, when in truth and in fact, as all the accused knew, the same were not true and correct; by making it appear in the voucher that funds were available and that there were appropriate requests for allotments (ROA) to pay the aforesaid purchase; that a requisition for said item was made and approved; that a regular bidding was held; that a corresponding purchase order was issued in favor of the winning bidder; that the road construction materials were delivered, inspected and used in the supposed project and that the alleged supplier was entitled to payment when in truth and in fact, as all the accused know, all of the foregoing were false and incorrect and because of the foregoing falsifications, the above-named accused were able to collect from the

Cebu I HED the total amount of FORTY EIGHT THOUSAND FOUR HUNDRED THIRTY ONE PESOS & 85/100 (P48,431.85), Philippine Currency, in payment of the nonexisting deliveries; that the said amount of P48,431.85 was not reflected in the monthly trial balance submitted to the Central Office by Region VII showing its financial condition as the same was negated thru the journal voucher, as a designed means to cover-up the fraud; and the accused, once in possession of the said amount, misappropriated, converted and misapplied the same for their personal needs, to the damage and prejudice of the Philippine Government in the total amount of FORTY EIGHT THOUSAND FOUR HUNDRED THIRTY ONE PESOS & 85/100 (P48,431.85), Philippine Currency. CONTRARY TO LAW. The Torrevillas cases were substantially the same save for the details highlighted in the aforequoted typical accusatory pleading. For ease of reference, Torrevillas' criminal cases are particularized as follows: Criminal Case No. Dates of Commission Main Documents Falsified Items Allegedly Purchased Amount of Fraud 2855 June 1, 1977 up to June 30, 1977 1. Request for Allocation of Allotment 101-10-186-76; 10-19076; 10-192-76; 10-188-76; 10-18076; 2. General Voucher No. B-613; 3. Check No. 9403099; 153.63 m. t. of item 310 for use in asphalting of the Toledo-Tabuelan road from Km. 108.34 to Km. 109.52 PhP 48,431.85

2856 June 1, 1977 up to June 30, 1977 1. Request for Allocation of Allotment 101-10-15-76; 9-201-76; 8-152-76; 8-153-76;9-181-76; 9184-76 2. General Voucher No. B-619; 3. Check No. 9403105; 153.76 m. t. of item 310 for use in the asphalting of the ToledoTabuelan road from Km 108.34 to Km. 109.52 PhP 48,472.84 2858 June 1, 1977 up to July 31, 1977 1. Request for Allocation Allotment 101-6-234-76; 6-237-76; 6-239-76; 6-241-76; 6-240-76 2. General Voucher No. B-629; 3. Check No. 9403115; 151.35 m. t. of item 310 for use in the asphalting of the ToledoTabuelan road from Km. 108.34 to Km. 109.52 PhP 47,713.09 2859 June 1, 1977 up to June 31, 1977 1. Request for Allocation of Allotment 101-7-63-76; 8-102-76; 8121-76 2. General Voucher No. B-631; 3. Check No. 9403117; 110.01 m. t. of item 310 for use in asphalting of the Toledo-Tabuelan road from Km. 108.34 to Km.109.52 PhP 34,680.65 2909 September 1, 1977 up to November 30, 1977 1. General Voucher No. B-928; 2. Check No. 9403426; 1,200 cu.m. of item 108 for use in the rehabilitation of the BuanoyCantibas, Balaban barangay road PhP 27,900.00 2910 September 1, 1977 up to November 30, 1977 1. General Voucher No. B-929; 2. Check No. 9403427;

1,200 cu. m. of item 108 for use in the rehabilitation of the MagayCanamukan, Compostela barangay road PhP 27,900.00 2914 October 1, 1977 up to November 30, 1977 1. General Voucher No. B-927; 2. Check No. 9403425; 1,200 cu. m. of item 108 for use in the rehabilitation of the Cajel-Lugo, Barbon barangay road PhP 27,000.00 2919 January 2, 1977 up to February 28, 1977 1. General Voucher No. B-244; 2. Check No. 9933293; 1,550 cu. m. of item 108 for use in the repair and rehabilitation of damaged roads and bridges at the Toledo-Tabuelan national road from Km. 71 to Km. 83 PhP 31,000.00 2932 June 1, 1977 up to July 31, 1977 1. Request for Allocation of Allotment 101-7-83-76; 7-84-76; 7124-76; 8-153-76; 8-170-76; 2. General Voucher B-643; 3. Check No. 9403130; 250 gals of aluminum paint 324 gals of red lead paint for use in the maintenance of national roads and bridges PhP 44,762.58 The Sandiganbayan's Ruling The anti-graft court was fully convinced of the guilt of petitioner Fernan, Jr.; and in its December 4, 1997 Decision, it found him criminally liable in the six (6) cases against him, thus: In Criminal Case No. 2879, the Court finds accused JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA, ZOSIMO MENDEZ, MARIANO JARINA and SIMON FERNAN, Jr., GUILTY

beyond reasonable doubt as coprincipals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Twenty Eight Thousand Pesos (P 28,000.00); and, to pay their proportionate share of the costs.[9] (Emphasis supplied.) In Criminal Case No. 2880, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA, ZOSIMO MENDEZ, and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Twenty Eight Thousand

Pesos (P 28,000.00); and, to pay their proportionate share of the costs.[10] (Emphasis supplied.) In Criminal Case No. 2881, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, ZOSIMO MENDEZ and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Thirty One Thousand Pesos (P 31,000.00); and, to pay their proportionate share of the costs.[11] (Emphasis supplied.) In Criminal Case No. 2885, the Court finds accused CAMILO DE LETRAN JOSE SAYSON, RAMON QUIRANTE, ZOSIMO MENDEZ and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten

(10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Thirty Thousand Pesos (P 30,000.00); and, to pay their proportionate share of the costs.[12] (Emphasis supplied.) In Criminal Case No. 2914, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, EXPEDITO TORREVILLAS and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Twenty Seven Thousand Pesos (P 27,000.00); and, to pay their proportionate share of the costs.[13] (Emphasis supplied.) In Criminal Case No. 2918, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, ZOSIMO MENDEZ, SIMON FERNAN, Jr. and ISMAEL SABIO, Jr. GUILTY beyond reasonable doubt as coprincipals in the crime of Estafa thru

falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Thirty Thousand Pesos (P 30,000.00); and, to pay their proportionate share of the costs.[14] (Emphasis supplied.) Petitioner Torrevillas suffered the same fate and was convicted in the nine (9) criminal cases, to wit: In Criminal Case No. 2855, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA, and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as coprincipals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Forty Eight Thousand

Four Hundred Thirty One Pesos and 85/100 (P 48,431.85); and, to pay their proportionate share of the costs.[15] (Emphasis supplied.) In Criminal Case No. 2856, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Forty Eight Thousand Four Hundred Seventy Two Pesos and 84/100 (P 48,472.84); and, to pay their proportionate share of the costs.[16] (Emphasis supplied.) In Criminal Case No. 2858, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA and EXPEDITO TOREVILLAS, GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru Falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each

of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Forty Seven Thousand Seven Hundred Thirteen Pesos and 9/100 (P47,713.09); and, to pay their proportionate share of the costs. In Criminal Case No. 2859, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA and EXPEDITO TOREVILLAS, GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru Falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Thirty Four Thousand Six Hundred Eighty pesos and 65/100 (P34,680.65); and , to pay their proportionate share of the costs.[17] In Criminal Case No. 2909, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE,

FLORO JAYME and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Twenty Seven Thousand Nine Hundred Pesos (P 27,900.00); and, to pay their proportionate share of the costs.[18] (Emphasis supplied.) In Criminal Case No. 2910, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, FLORO JAYME and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to

indemnify, jointly and severally the Republic of the Philippines in the amount of Twenty Seven Thousand Nine Hundred Pesos (P 27,900.00); and, to pay their proportionate share of the costs.[19] (Emphasis supplied.) In Criminal Case No. 2914, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, EXPEDITO TORREVILLAS and SIMON FERNAN, Jr., GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Twenty Seven Thousand Pesos (P 27,000.00); and, to pay their proportionate share of the costs. (Emphasis supplied.) In Criminal Case No. 2919, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA, ZOSIMO MENDEZ, EXPEDITO TORREVILLAS and ISMAEL SABIO, Jr. GUILTY beyond reasonable doubt as coprincipals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there

being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Thirty One Thousand Pesos (P 31,000.00); and, to pay their proportionate share of the costs.[20] (Emphasis supplied.) In Criminal Case No. 2932, the Court finds accused CAMILO DE LETRAN, JOSE SAYSON, RAMON QUIRANTE, MARIANO MONTERA, PEDRITO SEVILLE and EXPEDITO TORREVILLAS GUILTY beyond reasonable doubt as co-principals in the crime of Estafa thru falsification of Public Documents as defined and penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal Code, and there being no modifying circumstances in attendance, hereby sentences each of them to an indeterminate penalty ranging from six (6) years of prision correccional, as minimum, to ten (10) years, eight (8) months and one (1) day of prision mayor, as maximum, with the accessory penalties provided by law, to pay a fine of Three Thousand Five Hundred Pesos (P 3,500.00); to indemnify, jointly and severally the Republic of the Philippines in the amount of Forty Four Thousand Seven Hundred Sixty Two Pesos and 58/100 (P 44,762.58); and, to pay their proportionate share of the costs.[21] (Emphasis supplied.)

Petitioners made the supplication before the court a quo to recall the adverse judgments against them which was declined by the August 29, 2000 SB Resolution. Firm in their belief that they were innocent of any wrongdoing, they now interpose the instant petition to clear their names. The Issues Petitioners put forward two (2) issues, viz: I THE HONORABLE SANDIGANBAYAN TOTALLY IGNORED PETITIONERS CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT WHEN IT RULED THAT THE BURDEN OF CONVINCING THE HON. COURT THAT THE DELIVERIES OF THE ROAD MATERIALS ATTESTED TO HAVE BEEN RECEIVED BY THEM WERE NOT GHOST DELIVERIES RESTS WITH THE ACCUSED AND NOT WITH THE PROSECUTION. II THE HONORABLE SANDIGANBAYAN ERRED IN CONVICTING PETITIONERS AS COCONSPIRATORS DESPITE THE PROSECUTION'S FAILURE TO SPECIFICALLY PROVE BEYOND REASONABLE DOUBT THE FACTS AND CIRCUMSTANCES THAT WOULD IMPLICATE THEM AS COCONSPIRATORS AND JUSTIFY THEIR CONVICTION. The Court's Ruling We are not persuaded to nullify the verdict.

Petitioners' guilt was established beyond reasonable doubt Petitioners mainly asseverate that their guilt was not shown beyond a peradventure of doubt and the State was unable to show that government funds were illegally released based on alleged ghost deliveries in conjunction with false or fake tally sheets and other documents which they admittedly signed. We are not convinced. Our Constitution unequivocally guarantees that in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.[22] This sacred task unqualifiedly means proving the guilt of the accused beyond a reasonable doubt. Definitely, "reasonable doubt" is not mere guesswork whether or not the accused is guilty, but such uncertainty that "a reasonable man may entertain after a fair review and consideration of the evidence." Reasonable doubt is present when after the entire comparison and consideration of all the evidences, leaves the minds of the [judges] in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge; a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it.[23] A thorough scrutiny of the records is imperative to determine whether or not reasonable doubt exists as to the guilt of accused Fernan, Jr. and Torrevillas. Petitioners were charged with the complex crime of estafa through

falsification of public documents as defined and penalized under Articles 318 and 171 in relation to Article 48 of the Revised Penal Code, thus: ART. 318. Other deceits. - The penalty of arresto mayor and a fine of not less than the amount of the damage caused and not more than twice such amount shall be imposed upon any person who shall defraud or damage another by any deceit not mentioned in the preceding articles of this chapter. ART. 171. Falsification by public officer, employee; or notary or ecclesiastical minister. - The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts: xxxx Making untruthful statements in a narration of facts; ART. 48. Penalty for complex crimes. - When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. The complex crime is pruned into the following essential elements: For estafa Deceit: Deceit is a specie of fraud. It is actual fraud, and consists in any false representation or contrivance whereby one person overreaches and misleads another, to his hurt. There is deceit when one is misled, either by guile or trickery or by other means, to believe to be true what is really false.[24]

Damage: Damage may consist in the offended party being deprived of his money or property as a result of the defraudation, disturbance in property right, or temporary prejudice.[25] For falsification That the offender is a public officer, employee, or notary public; That he takes advantage of his official position; That he falsifies a document by committing any of the acts defined under Article 171 of the Revised Penal Code.[26] Before the SB, a Memorandum of Agreement (MOA) dated September 1, 1988 was entered into between the State and the accused with the following stipulations and admissions: (1) To expedite the early termination of the instant cases and abbreviate the testimony of Mrs. Delia Preagido, the prosecution and the accused have agreed to reproduce and adopt as the testimony of Preagido in the instant cases, her previous testimonies in Criminal Cases Nos. 889, etc. (Mandaue City HED '78 cases), on May 18 and 19, 1982 and in Criminal Cases Nos. 1446-1789, etc. (Danao City HED '77 cases) on November 10, 1987 and March 14, 1988, both on direct and cross examination x x x without prejudice to whatever direct and/or cross examination question, that may be propounded by the Prosecution and the accused on said State witness, which questions will only be limited to the fake or irregular LAA's and SACDC's issued to Cebu I HED in 1977, the sale of such fake or irregular LAA's and SACDC's issued to Cebu I HED in 1977, the sale of such fake or

irregular LAA's and SACDC's in said engineering district in the said year and the participation of the accused thereon; (2) That in the event Mrs. Delia Preagido is presented to testify as a State witness in the instant cases without reproducing and adopting her previous testimonies in the Mandaue City HED '78 and the Danao City HED '77 cases, she will identify documents and exhibits which have been previously marked and identified by other prosecution witness x x x. (3) That in the previous testimonies of Mrs. Delia Preagido in the Mandaue City HED '78 and the Danao City HED '77 cases, she identified twenty-six separate lists containing names of officials and employees of MPH, Regional Office No. VII, of the various Highways Engineering Districts in MPH, Region VII, and the MPH Central Office who have allegedly received money or various sums from 1977 to 1978 out of the proceeds or sales of fake LAA's in 1977 and 1978 and, therefore, to obviate Mrs. Preagido's previous testimony of these lists, the Prosecution hereby reproduces and adopts specifically such testimony and the markings of the lists, i.e., Exhibits "KKK", "KKK-1" to "KKK-25" in the Mandaue City HED '78 cases and Exhibits "0000", "0000-1" to "0000-25" in the Danao City HED '77 cases, substituted or re-marked accordingly as "Exhibits "LL", "LL-1" to "LL-25" in the instant cases.[27] As a result of this MOA, the testimony of state witness Preagido on the modus operandi of the conspirators, or the unique and distinct method of procedure by which the malversation of public

funds in Region VII of the MPH was perpetrated and accomplished, dealt a major blow to the defenses raised by petitioners. Preagido's vital testimony, wherein she identified the methods, documents, exhibits, and other pertinent papers that led to the crafting of fake Letters of Advice of Allotment (LAAs),[28] general vouchers, disbursement of funds for non-existent projects, general vouchers, and other documents, was not even successfully refuted or overturned by petitioners. Preagido confirmed and admitted under oath that the illegal disbursement of public funds pertained to non-existent projects and was supported by fake LAAs, fake general vouchers, and other pertinent papers that were also falsified. The fake LAAs and general vouchers were, in turn, supported by signed tally sheets that pertained to alleged ghost deliveries of road construction materials for nonexistent or illegal projects. The fake tally sheets, delivery receipts, reports of inspection, requests for supplies and materials, and other related documents signed on separate occasions by petitioners, which were attached as supporting documents to corresponding general vouchers; the alleged amounts and quantities of road construction materials delivered; and the specific fake general vouchers, checks, and other pertinent documents issued which led to the illegal disbursement of funds are summarized as follows: Petitioner Fernan, Jr. Criminal Case No. Specific Exhibits Main Documents

Falsified Items Allegedly Purchased FAKE LAAs that authorized purchase Amount of Fraud 2879 T-86-f-1, etc. (Tally Sheets) 1. General Voucher No. B-15; 2. Check No. 9933064; 1,400 cu. m. of item 108 for use in the repair of the Cebu Hagnaya Wharf road from Km. 50.30 to Km. 60.00 Not numbered contrary to official procedure PhP 28,000.00 2880 T-87-f-1, etc. (Tally Sheets) 1. Request for Allocation of Allotment 101-12-105-76; 2. General Voucher No. B-55; 3. Check No. 9933104; 1,400 cu. m. of item 108 for use in the repair of the Bogo-CurvaMedellon road from Km. 110.00 to Km. 119.00 Not numbered contrary to official procedure PhP 28,000.00 2881 T-104-g-1, etc. (Tally Sheets) 1. Request for Allocation of Allotment 101-2-56-77; 2. General Voucher No. B-245; 3. Check No. 9933294; Approximately 1,500 cu. m. of item 108 for use in the repair and rehabilitation of damaged roads and bridges by Typhoon Aring at the Tabogon-Bogo provincial road from Km. 92 to Km. 98 Not numbered contrary to official procedure PhP 31,000.00 2885 T-89-f-1, etc. (Tally Sheets) 1. Request for Allocation of Allotment 101-12-112-76; 2. General Voucher No. B-76;

3. Check No. 9933125; Materials for use in the repair and rehabilitation of the Daan-Bantayan road from Km. 127.00 to Km. 136 Not numbered contrary to official procedure PhP 30,000.00 2914 T-115-g-1, etc. (Tally Sheets) 1. General Voucher No. B-927; 2. Check No. 9403425; 1,200 cu. m. of item 108 for use in the rehabilitation of the Cajel-Lugo, Barbon barangay road PhP 27,000.00 2918 T-116-f-1, etc. (Tally Sheets) 1. General Voucher No. B-107; 2. Check No. 9933157; 1,500 cu. m. of item 108 for the rehabilitation of the Cebu North Hagnaya Wharf road from Km. 71 to Km. 76 Not numbered contrary to official procedure PhP 30,000.00 Petitioner Torrevillas Criminal Case No. Specific Exhibits Main Documents Falsified Items Allegedly Purchased FAKE LAAs that authorized purchase Amount of Fraud 2855 T-33-f (Delivery Receipt); T33-f-1 (Daily Tally Sheet); 1. Request for Allocation of Allotment 101-10-186-76; 10-19076; 10-192-76; 10-188-76; 10-18076; 2. General Voucher No. B-613; 3. Check No. 9403099; 153.63 m. t. of item 310 for use in asphalting of the Toledo-Tabuelan road from Km. 108.34 to Km. 109.52 Not numbered contrary to official procedure PhP 48,431.85

2856 T-34-f (Delivery Receipt); T34-f-1 (Daily Tally Sheet); 1. Request for Allocation of Allotment 101-10-15-76; 9-201-76; 8-152-76; 8-153-76;9-181-76; 9184-76 2. General Voucher No. B-619; 3. Check No. 9403105; 153.76 m. t. of item 310 for use in the asphalting of the ToledoTabuelan road from Km 108.34 to Km. 109.52 Not numbered contrary to official procedure PhP 48,472.84 2858 T-35-f (Delivery Receipt); T35-f-1 (Daily Tally Sheet); 1. Request for Allocation Allotment 101-6-234-76; 6-237-76; 6-239-76; 6-241-76; 6-240-76 2. General Voucher No. B-629; 3. Check No. 9403115; 151.35 m. t. of item 310 for use in the asphalting of the ToledoTabuelan road from Km. 108.34 to Km. 109.52 Not numbered contrary to official procedure PhP 47,713.09 2859 T-36-f (Delivery Receipt); T36-f-1 (Daily Tally Sheet); 1. Request for Allocation of Allotment 101-7-63-76; 8-102-76; 8121-76 2. General Voucher No. B-631; 3. Check No. 9403117; 110.01 m. t. of item 310 for use in asphalting of the Toledo-Tabuelan road from Km. 108.34 to Km.109.52 Not numbered contrary to official procedure PhP 34,680.65 2909 T-113-b (Request for Supplies and Equipment); T-113-d (Report of Inspection); T-113-c (Abstract of Sealed Quotation) 1. General Voucher No. B-928; 2. Check No. 9403426; 1,200 cu.m. of item 108 for use in the rehabilitation of the BuanoyCantibas, Balaban barangay road Not numbered contrary to official

procedure PhP 27,900.00 2910 T-114-c (Request for Supplies and Equipment); T-114-e (Report of Inspection); T-114-f (Abstract of Sealed Quotation) 1. General Voucher No. B-929; 2. Check No. 9403427; 1,200 cu. m. of item 108 for use in the rehabilitation of the MagayCanamukan, Compostela barangay road Not numbered contrary to official procedure PhP 27,900.00 2914 T-115-c (Request for Supplies and Equipment); T-115-e (Report of Inspection); T-115-f (Abstract of Sealed Quotation) 1. General Voucher No. B-927; 2. Check No. 9403425; 1,200 cu. m. of item 108 for use in the rehabilitation of the Cajel-Lugo, Barbon barangay road Not numbered contrary to official procedure PhP 27,000.00 2919 T-117-g (Delivery Receipt); T-117-g-1, etc. (Daily Tally Sheets) 1. General Voucher No. B-244; 2. Check No. 9933293; 1,550 cu. m. of item 108 for use in the repair and rehabilitation of damaged roads and bridges at the Toledo-Tabuelan national road from Km. 71 to Km. 83 Not numbered contrary to official procedure PhP 31,000.00 2932 1. Request for Allocation of Allotment 101-7-83-76; 7-84-76; 7124-76; 8-153-76; 8-170-76; 2. General Voucher B-643; 3. Check No. 9403130; 250 gals of aluminum paint 324 gals of red lead paint for use in the maintenance of national roads and bridges Not numbered contrary to official procedure PhP 44,762.58

On the part of petitioners, they readily admitted that they either signed the tally sheets and/or delivery receipts, reports of inspection, requests for supplies and materials, and other related documents which became part of the supporting documents that led to the issuance of general vouchers and eventually the disbursement of public funds.[29] The tally sheets are statements of delivery that purportedly indicated the specified quantities of materials for the construction and maintenance of roads that have been delivered on supposed project sites on given dates at specific places. As a result of petitioners' signatures in the tally sheets and/or delivery receipts, reports of inspection, requests for supplies and materials, and other supporting documents-which became the basis for payment to suppliers--public funds were released via general vouchers and checks to the said suppliers despite the fact that the latter did not make any deliveries in accordance with projects allegedly funded by mostly fake LAAs. The accusation that there were no actual deliveries of road construction and maintenance materials in support of projects or otherwise funded by LAAs was proven true by the testimonies of the various barangay captains and residents of the barangay who were supposed to be benefited by the construction and repair activities of the Cebu First Highway Engineering District. The testimonies of these barangay captains and residents are summarized as follows:[30] MACARIO LIMALIMA, Barangay Captain of Barangay Antipolo,

Medellin, Cebu, testified that his barangay is traversed by the national highway stretching to a distance of 2 kilometers and 750 meters (Km. 122; Km. 123 to 125). He described the road as full of potholes. Except for filling up these potholes with "anapog" or crushed limestone, no major repairs were undertaken on the said road in 1978 or in previous years. (TSN., pp. 6-14, June 5, 1986).[31] FELOMINO ORBISO, Barangay Captain of Cawit, Medellin, Cebu, from 1972 to 1981, testified that his barangay is traversed by the national highway, stretching from Km. 125 to Km. 127.9. He described the road as a rough or dirt road. No improvement was ever made on this road whether during the year when he gave his statement to the NBI (1978) or in previous years. The road remained in bad shape, with numerous potholes which the camineros merely filled up with limestone. (TSN., pp.14-19, June 5, 1986).[32] TIMOTEO ANCAJAS, Barangay Captain of Paypay, Daan Bantayan, Cebu, from 1972 to 1982, testified that his barangay is traversed by the national highway, stretching from Km. 132 to Km. 134 , or a distance of 2 kilometers. He described the portion of the highway as a rough road with potholes. He stated that the only improvement done on this road was the filling up of the potholes with "anapog" or crushed limestone and this was done only once in 1977. It even took the camineros three months from the time the limestones were delivered to start working on the road. (TSN., pp. 20-26, June 5, 1986).[33]

LUCIA PE AFLOR, Barangay Captain of Don Pedro, Bogo, Cebu, from 1966 to 1982, testified that her barangay is traversed by the national highway, stretching from Km. 103 to Km. 105 , up to the boundary of San Remigio, and from the boundary to Daan Bantayan, a distance of more than 3 kilometers. It was only in 1984 or 1985 when this portion of the national highway was asphalted. Prior to that, the road was maintained by filling up the potholes with crushed limestone or "anapog." These potholes started to appear between January and June of 1977. However, as alleged by her in her affidavit (Exh. II-1-d), these potholes were filled up only from January to June, 1978. (TSN., pp. 2846, June 5, 1986).[34] MARCELO CONEJOS, Barangay Captain of Tapilon, Daan Bantayan, from 1972 to 1982, testified that his barangay is traversed by the national highway, stretching from Km. 130 to Km. 134, or a distance of 4 kilometers. In 1977, said portion of the national highway was in bad condition and that nothing was done to improve it until 1982, except for the time when the potholes were filled up with crushed limestones. (TSN., pp. 48-56, June 5, 1986).[35] REMEDIOS FELICANO, Barangay Captain of Looc, San Remigio, Cebu from 1977 to 1982, testified that her barangay is traversed by the national highway, stretching form Km. 109 to Km. 110. She described said portion of the national highway as "stoney." The only maintenance work undertaken to improve the road was the filling up of potholes with crushed limestone which camineros gathered from the

roadside. (TSN., pp.57-67, June 5, 1986).[36] ALBERTO BRANSUELA, a resident of Barangay San Jose, Catmon, Cebu, from 1974 to 1978, testified that barangay San Jose is traversed by the national highway (Km. 58), covering a distance of kilometer more or less. He stated that while this portion of the national highway was already asphalted as of 1977, there were potholes which the camineros filled up with anapog taken from the roadside. (TSN., pp. 69-80), June 5, 1986).[37] CARIDAD PUNLA, Acting Barangay Captain of Barangay Corazon, Catmon, Cebu, from 1977 to 1982, testified that the Poblacion of Catmon is traversed by the national highway, stretching from Km. 57 to Km. 58. In 1977, only more than of this portion of the national highway was cemented while the remaining portion was asphalted. While said portion of the national highway already had cracks and potholes as of 1977, the real problem was the uneven elevation of the surface of the shoulder of the road. No general repair was undertaken by the authorities to correct the uneven elevation, except for the work done by the camineros who covered up the potholes. (TSN., pp. 81-89, June 5, 1986).[38] FELIPE MOLIT, Barangay Captain of Bao, Sugud, Cebu, from 1975 to 1982, testified that barangay Bao was traversed by the national highway, stretching from Km. 59 to Km. 60 1/2. He described said portion of the national highway as a gravel road surfaced with anapog. In 1977, the said road already had potholes which maintenance men

filled up with anapog beginning in March, 1977. The anapog was hauled in from Km. 64, the usual excavation place of anapog. It took only 3 truckloads of anapog to cover the entire length of the 1 kilometers traversing their barangay. (TSN., pp. 90-99, June 5, 1986).[39] LEONARDO PINOTE, Barangay Captain of Barangay Argawanon, San Remigio, Cebu, from 1972 to 1980, testified that his barangay is traversed by the national highway covering a distance of kilometers more or less. In 1977, this portion of the national highway was a rough road with potholes. In the same year, camineros worked on the road, using wheelbarrows, shovels and rakes, pitching up the potholes with anapog. (TSN., pp. 29-35, June 6, 1986).[40] PEDRO ORSAL, Barangay Captain of Poblacion, San Remigio, Cebu, from January 1972 to 1980, testified that his barangay is traversed by the national highway, from Km. 107 to Km. 110, or a distance of three kilometers more or less. In 1977, the road from Km. 107 to Km. 108 was a gravel road. It was properly maintained by the highways people, and every time potholes appeared on the road, they would be filled-up with anapog. This material was dumped along the road by trucks of the Bureau of Public Highways. On the other hand, the road leading to the heart of the poblacion was asphalted, but with potholes. In 1977, the potholes were filled up by camineros with gravel delivered by dump trucks of the Bureau of Public Highways. It was only in 1978 when the road was re-asphalted and extended from the junction of the poblacion to the adjacent barrio of

Looc. x x x (TSN., pp.36-45, June 6, 1986).[41] The inescapable conclusion from the aforementioned testimonies of the barangay captains and residents of Cebu whose respective barangay are traversed by the national highway is that there were no actual major repair works undertaken on the national highway except the filling of potholes by crushed limestone (anapog). Clearly, there were no deliveries of supplies and materials for asphalting and repair of roads described in the tally sheets and other supporting documents signed by petitioners. While petitioner Torrevillas presented Vice-Mayor Emigdio Tudlasan of Tabuclan, Cebu, who testified that he saw the asphalting of the Tabuclan Road from kilometers 18 to 19, said testimony is not conclusive on the actual delivery of the supplies indicated in the tally sheets, as Tudlasan was not present at the time of alleged delivery. Moreover, his testimony runs counter to the testimonies of Barangay Captain Remedios Feliciano of Looc, San Remigio, Cebu and Barangay Captain Pedro Orsal of Poblacion, San Remigio, Cebu. Feliciano testified that she was Barangay Captain of Looc, San Remigio, Cebu from 1977 to 1982; that her barangay is traversed by the national highway, stretching from km. 109 to km. 110; and that the only work undertaken to improve the road was the filling up of potholes with crushed limestone which camineros gathered from the roadside. On the other hand, Orsal testified that he was Barangay Captain of Poblacion, San Remigio, Cebu, from January 1972 to 1980; that his barangay is traversed by the

national highway, from km. 107 to km. 110; that in 1977, the road from km. 107 to km. 108 was a gravel road maintained by the highways people, and every time potholes appeared on the road, they would be filled-up with anapog, which was dumped along the road by the Bureau of Public Highways; and that it was only in 1978 when the road was re-asphalted and extended from the junction of the poblacion to the adjacent barrio of Looc. Compared to the testimony of ViceMayor Tudlasan, the testimonies of Barangay Captains Feliciano and Orsal are entitled to more weight and credit, and are more credible considering the fact that they are residents of the area where the road supposedly to be repaired is located plus the fact that they saw only limestone, not asphalt, that was used in the repair of the road in 1977. The testimonies of Feliciano and Orsal are further buttressed by the findings and statements of government witnesses, namely-Ruth Inting Paredes, Supervising Commission on Audit (COA) Auditor assigned to Region VII; Felicitas Cruz Ona, Supervising COA Auditor assigned to the main COA office; Federico A. Malvar, Senior National Bureau of Investigation (NBI) Agent of the Anti-Graft Section and member of the COA NBI team assigned to investigate the anomalies; Rogelio C. Mamaril, Supervising NBI Agent of the AntiFraud and Action Section; and Delia Comahig Preagido, Accountant III, MPH, Region VII--to the effect that the general vouchers and LAAs that corresponded to the aforementioned tally sheets signed by petitioner Torrevillas were fake or falsified. Undeniably, the government

witnesses have no motive to testify falsely against petitioner Torrevillas and, hence, credible. We conclude that there were no actual deliveries of supplies for asphalting of road and repair on kilometers 108 and 109, which were the subjects of Criminal Case Nos. 2855, 2856, 2858, and 2859. Glaring is the finding of the SB that the Cebu First Highway Engineering District, to which petitioners were assigned, had fake LAAs totaling to PhP 4,924,366.50, while the fake Cash Disbursement Ceilings issued amounted to PhP 6,271,150.[42] The Cebu First Highway Engineering District had also issued checks per unrecorded reports in the total sum of PhP 1,135,176.82.[43] Therefore, the total illegal disbursements in the Cebu First Highway Engineering District alone were a staggering PhP 12,330,693.32 circa 1977. Of this total, petitioner Fernan, Jr. freely admitted signing tally sheets which pertained to non-existent deliveries of road construction supplies and materials totaling PhP 146,000,[44] including PhP 27,000 in Criminal Case No. 2914 where petitioner Torrevillas was among the co-accused.[45] These tally sheets were attached as the supporting papers to fake general vouchers which facilitated the release of check payments to suppliers. These checks were allegedly paid to suppliers Juliana de los Angeles (Criminal Case Nos. 2879, 2880, 2881, 2885, and 2914) and Ismael Sabio, Jr. (Criminal Case No. 2918).[46] On his part, petitioner Torrevillas voluntarily admitted to signing tally

sheets, reports of inspection, requisitions of supplies and equipment, and other pertinent documents totaling an even greater amount of PhP 337,861.01,[47] including PhP 27,000 in Criminal Case No. 2914 where petitioner Fernan, Jr. was among the coaccused.[48] These documents signed by petitioner Torrevillas were likewise attached as supporting papers to fake general vouchers which facilitated the release of check payments to suppliers. These checks were allegedly paid to suppliers Rufino V. Nuez (Criminal Case Nos. 2855, 2856, 2858, and 2859), Juliana de los Angeles (Criminal Case Nos. 2909, 2910, and 2914), Ismael Sabio, Jr. (Criminal Case No. 2919), and Manuel Mascardo (Criminal Case No. 2932).[49] These general vouchers and checks could not be traced to genuine LAAs. Ergo, there were no actual deliveries of supplies and materials for the road repair and rehabilitation in Region VII, which were the subjects of the criminal cases where petitioners were charged. We find no reason to disturb the findings of the court a quo that all the essential elements of the crime of estafa through falsification of public documents were present. There is no question that petitioners, at the time of the commission of the crime, were public officers"civil engineers"assigned to the MPH. Their signing of tally sheets and related documents pertaining to the alleged deliveries of supplies for road repair and construction constitutes intervention and/or

taking advantage of their official positions, especially considering that they had the duty to inspect the purported deliveries and ascertain the veracity of the documents and the statements contained in them. The tally sheets bearing their signatures contained false recitals of material facts which the petitioners had the duty to verify and confirm. These tally sheets were attached as supporting documents to fake LAAs and subsequently became the bases for the disbursement of public funds to the damage and prejudice of the government. Indubitably, there exists not even an iota of doubt as to petitioners' guilt. The essential elements of estafa through falsification of public documents are present in the cases against petitioners, as follows: Deceit: Petitioners Fernan, Jr. and Torrevillas made it appear that supplies for road construction and maintenance were delivered by suppliers allegedly in furtherance of alleged lawful projects when in fact said supplies were not delivered and no actual asphalting or repair of road was implemented. In doing so, petitioners: 1.1. Were public officers or employees at the time of the commission of the offenses; 1.2. Took advantage of their official position as highway engineers; and 1.3. Made untruthful statements in several narrations of fact. Damage: The government disbursed PhP 146,000 in the case of Fernan, Jr. and PhP 337,861.01 in the case of Torrevillas, as payments to various

suppliers for the delivery of nonexistent supplies. By way of defense, petitioners posit that the tally sheets and other documents could in fact be traced to genuine LAAs that were in the custody of the NBI. Unfortunately, these genuine LAAs were not introduced in evidence. It is an ageold axiom that s/he who alleges something must prove it. Petitioners' assertion that the documents they signed were all genuine and duly covered by genuine LAAs was substantiated only by their own selfserving and uncorroborated testimonies. We hesitate to give much weight and credit to their bare testimonies in the face of clear, convincing, overwhelming, and hard evidence adduced by the State. If the genuine LAAs were vital to their defense, and they firmly believed that the documents were indeed in the custody of the NBI, then petitioners could have easily procured the compulsory process to compel the production of said documents. However, petitioners miserably failed to avail of subpoena duces tecum which the court a quo could have readily granted. The inability to produce such important and exculpatory pieces of evidence proved disastrous to petitioners' cause. Their conviction was indeed supported by proof beyond reasonable doubt which was not overturned by defense evidence. Petitioners acted in conspiracy with one another Petitioners vigorously claim error on the part of the lower court when it made the finding that they were coconspirators with the other parties accused despite the dearth of

evidence to amply demonstrate complicity. We are not convinced by petitioners' postulation. Indeed, the burden of proving the allegation of conspiracy falls to the shoulders of the prosecution. Considering, however, the difficulty in establishing the existence of conspiracy, settled jurisprudence finds no need to prove it by direct evidence. In People v. Pagalasan, the Court explicated why direct proof of prior agreement is not necessary: After all, secrecy and concealment are essential features of a successful conspiracy. Conspiracies are clandestine in nature. It may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that they had acted with a common purpose and design. Conspiracy may be implied if it is proved that two or more persons aimed their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent of each other, were in fact, connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment. To hold an accused guilty as a coprincipal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the complicity. There must be intentional participation in the transaction with a view to the furtherance of the common design and purpose.[50] In Estrada v. Sandiganbayan, we categorized two (2) structures of multiple conspiracies, namely: (1) the so-called "wheel" or "circle" conspiracy, in which there is a single

person or group (the "hub") dealing individually with two or more other persons or groups (the "spokes"); and (2) the "chain" conspiracy, usually involving the distribution of narcotics or other contraband, in which there is successive communication and cooperation in much the same way as with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer.[51] We find that the conspiracy in the instant cases resembles the "wheel" conspiracy. The 36 disparate persons who constituted the massive conspiracy to defraud the government were controlled by a single hub, namely: Rolando Mangubat (Chief Accountant), Delia Preagido (Accountant III), Jose Sayson (Budget Examiner), and Edgardo Cruz (Clerk II), who controlled the separate "spokes" of the conspiracy. Petitioners were among the many spokes of the wheel. We recall the painstaking efforts of the SB through Associate Justice Cipriano A. Del Rosario, Chairperson of the Third Division, in elaborating the intricate web of conspiracy among the accused, thus: Mangubat enticed Preagido, Cruz and Sayson to join him. All three agreed to help him carry out his plan. They typed fake LAAs during Saturdays. Cruz and Sayson also took charge of negotiating or selling fake LAAs to contractors at 26% of the gross amount. Preagido manipulated the general ledger, journal vouchers and general journal through negative entries to conceal the illegal disbursements. In the initial report

of COA auditors Victoria C. Quejada and Ruth I. Paredes it was discovered that the doubtful allotments and other anomalies escaped notice due to the following manipulations: "The letter-advices covering such allotments (LAA) were not signed by the Finance Officer nor (sic) recorded in the books of accounts. Disbursements made on the basis of these fake LAAs were charged to the unliquidated obligations (Account 881-400), although the obligations being paid were not among those certified to the unliquidated obligations (Account 8-81-400) at the end of the preceding year. To conceal the overcharges to authorized allotments, account 8-81400 (sic) and the excess of checks issued over authorized cash disbursements ceiling, adjustments were prepared monthly through journal vouchers to take up the negative debit to Account 8-81-400 and a negative credit to the Treasury Checking Account for Agencies Account 8-70-790. These journal vouchers in effect cancelled the previous entry to record the disbursements made on the basis of fake LAAs. Thus the affected accounts (Accounts 8-81-400 and 870-790), as appearing in the trial balance, would not show the irregularity. The checks, however, were actually issued."[52] The four formed the nucleus of the nefarious conspiracy. Other government employees, tempted by the prospect of earning big money, allowed their names to be used and signed spurious documents. xxxx Cebu First Highway Engineering District Anomalies

Focusing our attention now on the anomalies committed in the Cebu First District Engineering District, hereinafter referred to as the Cebu First HED for brevity, the Court finds that the same pattern of fraud employed in the other highway engineering districts in MPH Region VII was followed. The Cebu First HED received from Region VII thirtyfour Letters of Advice of Allotment (LAAs) in the total sum of P4,734,336.50 and twenty-nine (29) corresponding Sub-Advices of Cash Disbursement Ceiling (SACDCs), amounting to P5,160,677.04 for the period January 1, 1977 to December 31, 1977. But apart from this, the Cebu First HED appears to have also received for the same period another set of eighty-four (84) LAAs amounting to P4,680,694.76 which however, could not be traced to any Sub-Advice of Allotment (SAA) OR MATCHED TO THE Advices of Cash Disbursement Ceiling (ACDCs) received from the MPH and Regional Office. This is highly irregular and not in consonance with accounting procedures. It was also made to appear that the payments were made for alleged prior year's obligations and chargeable to Account 81-400, obviously because, they were not properly funded. Furthermore, the list of projects in Region VII for 1977 showed that Cebu first HED completed rehabilitation and/or improvement of roads and bridges in its districts from February to May, 1977, with expenditures amounting to P613,812.00. On the other hand, the expenditures for barangay roads in the same district in 1977 amounted to P140,692.00, and these were all completed within the period from November to December, 1977.

These completed projects were properly funded by legitimate LAAs and CDCs in the total amount of only P754,504.00. However, an additional amount of P3,839,810.74, was spent by the Cebu First HED for maintenance of roads and bridges for the same year (1977) but the same could not be traced to any authoritative document coming from the MPH. The following payments for materials purchased for the year 1977 were made to appear as payment for prior year's obligation and were paid out of fake LAAs: Supplier No. of Vouchers Kind of Materials Measurement Amount Rufino Nuez 29 Item 310 4,640,275 mt P1,374,135.00 J. delos Angeles 21 Item 108 22,290 cu.m. 433,300.00 Iluminada Vega 11 Item 108 8,325 cu.m. 191,500.00 Florencio Gacayan 10 Item 108 7,800 cu.m. 156,000.00 Ismael Sabio, Jr. 6 Item 108 6,198 cu.m. 123,960.00 FBS Marketing 3 Lumber

70,610.00 Cebu Hollow Blocks 2 Hollow Blocks 19,880.00 Bienvenido Presillas 4 Equip. Rental 29,580.00 T.R. Eustaquio Ent. 1 Office Supplies 7,461.90 Santrade Mktg. 1 Johnson Products 8,392.90 Pelagia Gomez 1 Item 108 2,000 cu.m. 40,000.00 M & M Ent. 1 Paints 49,736.20 Freent Ind. 1 Office Supplies 590.20

Rufino Nuez 11 Item 310 Item 108 162,549 m.t. 5,000 cu.m. P529,475.00 Juliana delos Angeles 16 Item 108 Item 111 Item 200 13,280 cu.m. 1,00 cu.m. 307 cu.m. P276,400.00 24,000.00 7,982.00 Iluminada Vega 3 Item 108 3,600 cu.m. 72,090.00 Florencio Gacayan 2 Item 108 2,400.00 cu.m. 48,000.00 Vicon Ent. 1 Steel Frame 19,042.74 Ismael Sabio, Jr. 5 Item 108 6,950 cu.m. 139,000.00 Jabcyl Mktg. 3 Bridge Materials 128,764.80

Total... P1,339,663.74 Total... P2,505,147.00 The NBI also discovered that there were purchases of materials in 1977 that were charged to current obligations but paid out of spurious LAAs, to wit: Supplier No. of Vouchers Kind of Materials Measurement Amount Grand Total .... P3,839,810.74 A total of 132 General Vouchers, emanating from fake LAAs and ACDCs, were traced back to Rolando Mangubat, Regional Accountant of Region VII and Adventor Fernandez, Regional Highway Engineer, also of Region VII. Those LAAs and ACDCs became the vehicles in the disbursement of funds amounting to

P3,839,810.74, through the vouchers purportedly issued for the purchase and delivery of the aforementioned materials allegedly used for the maintenance and repair of the national highways within the Cebu First HED. Despite the enormous additional expenditure of P3,839,810.74, the roads and bridges in the district, as found out by the NBI, did not show any improvement (Exhibit II). As testified to by several barangay captains, the road maintenance consisted merely of spreading anapog or limestone on potholes of the national Highway. Obviously, the vouchers for payments of alleged maintenance of roads and bridges in the additional amount of P3,839,810.74 were prepared for no other purpose than to siphon off the said amount from the government coffer into the pockets of some officials and employees of Region VII and the Cebu First HED, as well as the suppliers and contractors who conspired and confederated with them.[53] After a close re-examination of the records, the Court finds no reason to disturb the finding of the anti-graft court that petitioners are coconspirators of the other accused, headed by Chief Accountant Rolando Mangubat, who were similarly convicted in practically all the 119 counts of estafa. Undisturbed is the rule that this Court is not a trier of facts and in the absence of strong and compelling reasons or justifications, it will accord finality to the findings of facts of the SB. The feeble defense of petitioners that they were not aware of the ingenuous plan of the group of accused Mangubat and the

indispensable acts to defraud the government does not merit any consideration. The State is not tasked to adduce direct proof of the agreement by petitioners with the other accused, for such requirement, in many cases, would border on near impossibility. The State needs to adduce proof only when the accused committed acts that constitute a vital connection to the chain of conspiracy or in furtherance of the objective of the conspiracy. In the case at bench, the signing of the fake tally sheets and/or delivery receipts, reports of inspection, and requests for supplies and materials by petitioners on separate occasions is vital to the success of the Mangubat Group in siphoning off government funds. Without such fabricated documents, the general vouchers covering the supply of materials cannot be properly accomplished and submitted to the disbursing officer for the preparation of checks. State witness Ruth Paredes, Supervising COA Auditor, elaborated on the procedure regarding the award of the contract more specifically to the payment of the contractor or supplier. Once the Request for Supplies and Equipment is approved by the Regional Office, the Request for Obligation of Allotment (ROA) or the request for funds is signed by the District Engineer pursuant to the approved plans and budget and signed by the district accountant as to availability of funds. The district office will advertise the invitation to bid and award the contract to the lowest bidder. The Purchase Order (PO) is prepared and addressed to the winning bidder. Upon delivery of the supplies and

materials, the supplier bills the district office for payment. Consequently, the requisitioning officer will prepare the general voucher which must be accompanied by the following documents: The ROA; The PO; The abstract of Bid together with the Bid quotations; The delivery receipts together with the tally sheets; and The tax clearance and tax certificate of the supplier. After the preparation and submission of the general voucher and the supporting documents, the disbursing officer shall prepare and draw a check based on said voucher. The check is countersigned by an officer of the district office and/or the COA Regional Director based on the amount of the check. Thus, it is clear that without the tally sheets and delivery receipts, the general voucher cannot be prepared and completed. Without the general voucher, the check for the payment of the supply cannot be made and issued to the supplier. Without the check payment, the defraudation cannot be committed and successfully consummated. Thus, petitioners' acts in signing the false tally sheets and/or delivery receipts are indispensable to the consummation of the crime of estafa thru falsification of public documents. Surely, there were ghost or false deliveries of supplies and materials as convincingly shown by the testimonies of the barangay captains, officials, and residents of the areas where the materials were

allegedly used. More importantly, if there were actual deliveries of materials made, then there would be no need to fake the LAAs because the suppliers will have to be paid the cost of said materials plus a reasonable profit. As a result, there is nothing or not much to share with the more than 30 or so coconspirators, for the suppliers would not be too dim-witted to part with even their cost in buying the materials they allegedly supplied. Moreover, the fake delivery receipts and tally sheets signed by petitioners were linked to the general vouchers upon which check payments were made to the suppliers who were found guilty of participating in the fraud. With respect to petitioner Fernan, Jr., he signed tally sheets on the ghost deliveries of Juliana de los Angeles and Ismael Sabio, Jr. On the part of petitioner Torrevillas, he signed false tally sheets and delivery receipts on supplies allegedly delivered by Rufino V. Nuez, Juliana de los Angeles, Ismael Sabio, Jr., and Manuel Mascardo. Lastly, the checks issued to these suppliers based on general vouchers supported by the false tally sheets and general vouchers signed by petitioners cannot be traced to any genuine LAAs, resulting in the inescapable conclusion that these LAAs were unauthorized; hence, fake or fabricated. These are undisputed tell-tale signs of the complicity by petitioners with the Mangubat syndicate. In People v. Mangubat, the court a quo elucidated the conspiracy in the Cebu highway scam in a trenchant manner: Where the acts of each of the accused constitute an essential link

in a chain and the desistance of even one of them would prevent the chain from being completed, then no conspiracy could result as its consummation would then be impossible or aborted. But when each and everyone of the accused in the instant cases performed their assigned tasks and roles with martinet-like precision and accuracy, by individually performing essential overt acts, so much so that the common objective is attained, which is to secure the illegal release of public funds under the guise of fake or simulated public documents, then each and everyone of said accused are equally liable as coprincipals under the wellestablished and universally-accepted principle that, once a conspiracy is directly or impliedly proven, the act of one is the act of all and such liability exists notwithstanding noparticipation in every detail in the execution of the offense.[54] In sum, the required quantum of proof has been adduced by the State on the conspiracy among the accused including petitioners. The conviction of petitioners must perforce be sustained. WHEREFORE, we DENY the petition and AFFIRM the December 4, 1997 Decision of the SB in the consolidated criminal cases subject of this petition. No costs. SO ORDERED.

EN BANC [G. R. No. 175605, August 28, 2009] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ARNOLD GARCHITORENA Y CAMBA A.KA. JUNIOR; JOEY PAMPLONA A.K.A. NATO AND JESSIE GARCIA Y ADORINO, ACCUSED-APPELLANTS. DECISION LEONARDO-DE CASTRO, J.: For automatic review is the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR.-HC No. 00765 which affirmed an earlier Decision[2] of the Regional Trial Court (RTC) of Binan City, Branch 25 in Criminal Case No.9440-B, finding accused-appellants Arnold Garchitorena y Gamba, a.k.a. "Junior," Joey Pamplona, a.k.a. "Nato," and Jessie Garcia y Adorino guilty beyond reasonable doubt of murder and sentencing them to suffer the penalty of death and to indemnify jointly and severally the heirs of the victim in the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P50,000.00 as exemplary damages, P16,700.00 as actual damages, P408,000.00 for loss of earning capacity and to pay the costs of the suit. The conviction of accused-appellants stemmed from an Information[3] dated January 22, 1996, filed with the RTC for the crime of Murder, the accusatory portion of which reads: That on or about September 22, 1995, in the Municipality of Binan, Province of Laguna, Philippines and within the jurisdiction of this

Honorable Court, accused Arnold Garchitorena y Gamba, alias "Junior", Joey Pamplona alias "Nato" and Jessie Garcia y Adorino, conspiring, confederating together and mutualy helping each other, with intent to kill, while conveniently armed with a deadly bladed weapon, with abuse of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and stab one Mauro Biay y Almarinez with the said weapon, thereby inflicting upon him stab wounds on the different parts of his body which directly caused his death, to the damage and prejudice of his surviving heirs. That the crime was committed with the qualifying aggravating circumstance of abuse of superior strength. CONTRARY TO LAW. When arraigned, accused-appellants, duly assisted by their counsel, pleaded not guilty to the charge. Thereafter, trial ensued. The prosecution presented three (3) witnesses; namely, Dulce Borero, elder sister of the victim Mauro Biay and eyewitness to the killing of her brother; Dr. Rolando Poblete, who conducted an autopsy on the body of the victim and prepared the postmortem report; and Amelia Biay, the victim's widow. The evidence for the prosecution, as culled from the CA Decision under review, is as follows: In the proceedings before the trial court, witness for the prosecution Dulce Borero testified that on September 22, 1995, at around 9:00 o'clock in the evening, she was selling "balut" at Sta. Inez, Almeda Subdivision, Brgy. Dela Paz, Binan,

Laguna. Her brother, Mauro Biay, also a "balut" vendor", was also at the area, about seven (7) arms length away from her when she was called by accused Jessie Garcia. Borero testified that when her brother Mauro approached Jessie, the latter twisted the hand of her brother behind his back and Jessie's companions- accused Arnold Garchitorena and Joey Pamplona began stabbing her brother Mauro repeatedly with a shiny bladed instrument. Joey was at the right side of the victim and was strangling Mauro from behind. Witness saw her brother Mauro struggling to free himself while being stabbed by the three (3) accused., until her brother slumped facedown on the ground. Arnold then instructed his two coaccused to run away. During crossexamination, Borero claims that she wanted to shout for help but nothing came out from her mouth. When the accused had left after the stabbing incident, witness claimed that she went home to call her elder brother Teodoro Biay, but when they returned to the scene, the victim was no longer there as he had already been brought to the Perpetual Help Hospital. They learned from the tricycle driver who brought Mauro top the hospital that their brother was pronounced dead on arrival. Dr. Rolando Poblete, the physician who conducted an autopsy on victim Mauro Biay and prepared the postmortem report, testified that the victim's death was caused by "hypovolemic shock secondary to multiple stab wounds." Witness specified the eight (8) stab wounds suffered by the victim - one in the neck, two in the chest, one below the armpit, two on the upper abdomen, one at the back and one at the left

thigh - and also a laceration at the left forearm of Mauro. According to the expert witness, the nature of stab wounds indicate that it may have been caused by more than one bladed instrument. The victim's widow, Amelia Biay, testified that she incurred burial expenses amounting to P16,700.00 due to the death of her husband. Also, her husband allegedly earned a minimum of P300.00 a day as a "balut" vendor and P100.00 occasionally as a part-time carpenter. The accused-appellants denied the charge against them. Specifically, accused-appellant Joey Pamplona denied that he participated in the stabbing of Mauro Bay, accusedappellant Jessie Garcia interposed the defense of alibi, while accusedappellant Arnold Garchitorena interposed the defense of insanity. Succinctly, the CA Decision summed up their respective defenses: On the other hand, accused Joey Pamplona denied that he participated in the stabbing of Mauro Biay. Joey Pamplona claims that he was seated on a bench when co-accused Arnold came along. Then the "balut" vendor arrived and Joey saw Arnold stand up, pull something from the right side of his pocket and stab the "balut" vendor once before running away. Joey Pamplona testified that after the stabbing incident, due to fear that Arnold might also stab him, he also ran away to the store of a certain Mang Tony, a barangay official and related the incident to Aling Bel, the wife of Mang Tony. Joey Pamplona said that he stayed at Mang Tony's store until

his father arrived and told him to go home. Danilo Garados testified that on Septemebr 22, 1995, he was at the store of Mang Tony to buy cigarettes and saw Arnold and Joey seated on the bench near the artesian well. Arnold and Joey allegedly called Mauro Biay and he saw Arnold stabbing Mauro. Jessie Garcia was not there and Joey allegedly ran away when Arnold stabbed Mauro. Clavel Estropegan testified that on September 22, 1995, around 9:00 p.m. Joey Pamplona entered her store and told her that Junior or Arnold Garchitorena was stabbing somebody. She did not hear any commotion outside her house which is just four houses away from the artesian well. However, she closed her store for fear that Arnold will enter her house. Barangay Captain Alfredo Arcega testified that he investigated the stabbing incident and, although he had no personal knowledge, he found out that it was Arnold Garchitorena who stabbed Mauro Biay. Upon questioning Arnold, the latter admitted that he did stab Mauro. Defense witness Miguelito Gonzalgo testified that on September 22, 1995, he was in his shoe factory at his house located at 186 Sta. Teresita Street, Almeda Subdivision, Binan when he heard Mauro Biay shouting, and so he went out of his house. He allegedly saw two persons "embracing" each other near the artesian well. He recognized these two persons as Mauro and Arnold. He saw Arnold pulling out a knife from the body of Mauro and the

latter slowly fell down on his side. After Arnold washed his hands at the artesian well and walked away towards the house of his aunt, this witness approached Mauro and seeing that the victim was still breathing, went to get a tricycle to bring Mauro to the hospital. When he got back to the area, there were many people who helped board Mauro in the tricycle and they brought him to the Perpetual Help Hospital in Binan. The other co-accused Jessie Garcia took the stand and claimed that on September 22, 1995, between 8:00 and 9:00 in the evening, he was still riding a bus from his work in Blumentritt. He arrived at his home in Binan only at 11:00 p.m. On September 24, 1995, he was fetched by two (2) policemen and two (2) Barangay Tanods from his house and brought to the Binan Police Station for questioning. Thereafter, he was put in jail and incarcerated for six (6) months without knowing the charges against him. He was only informed that he was one of the suspects in the killing of Mauro Biay by his mother. With respect to Arnold Garchitorena, Dr. Evelyn Belen, Medical Officer III and resident physician of the National Center for Mental Health, testified that she examined the accused Arnold and based on the history of the patient, it was found that he had been using prohibited drugs like shabu and marijuana for two (2) years prior to the stabbing incident in 1995. The patient is allegedly suffering from schizophrenia, wherein he was hearing auditory voices, seeing strange things and is delusional. However, Dr. Belen also testified

that the accused Garchitorena had remissions or exaservation and understands what he was doing and was aware of his murder case in court.[4] On May 9, 2001, the trial court rendered a Decision,[5] as follows: WHEREFORE, IN THE LIGHT OF ALL THE FOREGOING CONSIDERATIONS, the Court finds accused Arnold Garchitorena y Gamboa alias Junior, Joey Pamplona alias Nato and Jessie Garcia y Adorino GUILTY beyond reasonable of the crime of "MURDER" as defined and penalized under Article 248 of the Revised Penal Code, as amended, by Republic Act 7659, (Heinous Crimes). Accordingly, all of them are hereby sentenced to suffer the penalty of DEATH. Furthermore, all of the accused are hereby ordered to pay jointly and severally Amelia Biay, widow of the victim Mauro Biay, the following sums: a) 50,000.00 - as and for civil indemnity b) 50,000.00 - as and for moral damages c) 50,000.00 - as and for exemplary damages d) 16,700.00 - as and for actual damages e) 408,000.00 - as and for loss of the earning capacity of Mauro Biay; and f) To pay the costs of suit. Likewise, the Provincial Warden of the Provincial Jail, Sta. Cruz, Laguna, is hereby ordered to transfer/commit the three (3) accused to the New Bilibid Prisons, Muntinlupa City, immediately upon receipt hereof.

Considering that death penalty was meted against all of the accused, let the entire records of the aboveentitled case be forwarded to the Supreme Court for automatic review and judgment pursuant to Rule 122, Sec.10 of the Revised Rules of Criminal Procedure. SO ORDERED.[6] Accused-appellants appealed to the CA. Pamplona and Garcia reiterated their denial of the charge against them. Garchitorena who never denied his participation in the killing, insisted, however, insisted that he is exempt from criminal liability because he was suffering from a mental disorder before, during and after the commission of the crime. On May 31, 2006, the CA rendered the Decision[7] now under review, affirming RTC's Decision in toto, thus: WHEREFORE, based on the foregoing premises, the instant appeal is DISMISSED. Accordingly, the appealed March 9, 2001 Decuision of the Regional Trial Court of Binan, Laguna, Branch 25, in Criminal Case No. 9440-B finding herein accused-appellants guilty beyond reasonable doubt of the crime of murder is AFFIRMED in its entirety. SO ORDERED. In arriving at the assailed Decision, the CA ratiocinated as follows: After studying the records of this case, we do not find any reason to overturn the ruling of the trial court.

Despite the testimony of defense witnesses that it was only accusedappellant Arnold Garchitorena who stabbed the victim Mauro Biay, we find reason to uphold the trial court's giving credence to prosecution witness Dulce Borero who testified as an eyewitness on the circumstances surrounding the incident and the manner by which the crime committed. Defense witness Garados testified that he was at the store and saw both Arnold and Joey at the vicinity where the stabbing incident happened, seated on a bench near the artesian well, when they called the victim Mauro. Defense witness Gonzalgo was in his house when he heard the commotion and went outside to see Arnold and Mauro "embracing" near the artesian well and the former pulling a knife from the body of the latter. On the other hand, prosecution witness Borero was merely seven arms length away from the incident and could easily see the victim Mauro overpowered and attacked by his assailants, Arnold Garchitorena, Joey Pamplona and Jessie Garcia. She witnessed the stabbing incident in its entirely and positively identified the accused and their criminal acts. It is a well-settled rule that the evaluation of testimonies of witnesses by the trial court is received on appeal with the highest respect because such court has the direct opportunity to observe the witnesses on the stand and determine if they are telling the truth or not. (People vs. Cardel, 336 SCRA 144) Evidence presented by the prosecution shows that the accused conspired to assault the victim

Mauro Biay. Accused Jessie Garcia was the one who called the victim and prompted the latter to approach their group near the artesian well. When the victim was near enough, accused Jessie Garcia and co-accused Joey Pamplona restrained Mauro Biay and overpowered him. Witness Borero then saw the two accused, Jessie Garcia and Joey Pamplona, together with their co-accused Arnold Garchitorena instructed his two co-accused to run. Conspiracy is apparent in the concerted action of the three accused. There is conspiracy when two or more persons come to an agreement concerning the commission of a felony and decide to commit it (People vs. Pendatun, 434 SCRA 148). Conspiracy may be deduced from the mode and manner in which the offense was perpetrated or inferred from the acts of the accused which show a joint or common purpose and design, a concerted action and community of interest among the accused (People vs. Sicad, et al., 391 SCRA 19). Likewise, we affirm the trial court's appreciation of the aggravating circumstance of abuse of superior strength to qualify the crime into murder. "While it is true that superiority in number does not per se mean superiority in strength, the appellants in this case did not only enjoy superiority in number, but were armed with a weapon, while the victim had no means with which to defend himself. Thus, there was obvious physical disparity between the protagonists and abuse of superior strength attended the killing when the offenders took advantage of their combined strength in order to consummate the offense." (People of the Phils. vs.

Parreno, 433 SCRA 591). In the case at bar, the victim was rendered helpless when he was assaulted by the three accused. He was restrained and overpowered by the combined strength and the weapons used by his assailants. We do not find improbable Borero's failure to act or shout for help upon witnessing the stabbing of her brother Mauro Biay. It is an accepted maxim that different people react differently to a given situation or type of situation and there is no standard form of behavioral response when one is confronted with a strange or startling experience. xxx There is no standard form of behavior when one is confronted by a shocking incident. The workings of the human mind when placed under emotional stress are unpredictable. (People of the Philippines vs. Aspuria, 391 SCRA 404) Accused-appellant Jessie Garcia's denial of any involvement cannot prevail over Borero's positive identification. As ruled by the trial court, allegations that accused Jessie Garcia was somewhere else when the crime was committed is not enough. He must likewise demonstrate that he could not have been present at the crime scene, or in its vicinity. He also could have sought the help of his co-worker, employer or anyone in the area to support his defense of alibi. Indeed, we affirm that accused Jessie Garcia's allegation that he was elsewhere when the crime was committed is not substantiated by evidence. Alibi can easily be fabricated. Well-settled is the rule that alibi is an inherently weak defense which cannot prevail over

the positive identification of the accused by the victim. (People of the Phils. vs. Cadampog, 428 SCRA 336) Finally, the defense of insanity cannot be given merit when the expert witness herself, Dr. Belen, attested that accused Arnold Garchitorena was experiencing remission and was even aware of his murder case in court. The trial court had basis to conclude that during the commission of the crime, Arnold was not totally deprived of reason and freedom of will. In fact, after the stabbing incident, accused Arnold Garchitorena instructed his coaccused to run away from the scene. We agree that such action demonstrates that Arnold possessed the intelligence to be aware of his and his co-accused's criminal acts. A defendant in a criminal case who interpose the defense of mental incapacity has the burden of establishing the fact that he was insane at the very moment when the crime was committed. There must be complete deprivation of reason in the commission of the act, or that the accused acted without discernment, which must be proven by clear and positive evidence. The mere abnormality of his mental faculties does not preclude imputability. Indeed, a man may act crazy but it does not necessarily and conclusively prove that he is legally so. (People of the Philippines vs. Galigao, 395 SCRA 195) Having found the court a quo's decision to be supported by the evidence on record, and for being in accord with prevailing jurisprudence, we find no reason to set it aside.

WHEREFORE, based on the foregoing premises, the instant appeal is DISMISSED. Accordingly, the appealed March 9, 2001 Decision of the Regional Trial Court of Bian, Laguna, Branch 25, in Criminal Case No. 9440-B finding herein accused-appellants guilty beyond reasonable doubt of the crime of murder is AFFIRMED in its entirely. SO ORDERED. The case was elevated to this Court for automatic review. The People and the accused-appellants opted not to file any supplemental brief. The respective assignments of errors contained in the briefs that they filed with the CA are set forth hereunder. For accused-appellant Pamplona: I THE TRIAL COURT ERRED IN GIVING FULL AND TOTAL CREDENCE TO THE TESTIMONY OF PROSECUTION WITNESS DULCE BORERO II THE TRIAL COURT ERRED IN FAILING TO APPRECIATE THE EVIDENCE IN FAVOR OF THE APPELLANT III THE TRIAL COURT ERRED IN CONVICTING APPELLANT WHEN HIS GUILT HAS NOT BEEN DULY PROVEN BEYOND REASONABLE DOUBT For accused-appellant Garcia:

I THE TRIAL COURT ERRED IN GIVING UNDUE WEIGHT AND CREDENCE TO THE ALLEGED EYEWITNESS ACCOUNT GIVEN BY DULCE BORERO, ELDER SISTER OF THE VICTIM AND PROSECUTION WITNESS, IN RESPECT OF THE PARTICIPATION OF THE HEREIN ACCUSED DESPITE GLARING INCONSISTENCIES, INHERENT IMPROBABILITIES AND UNRELIABLE DECLARATION ATTENDING THE SAME; AND, ON THE OTHERHAND, IN DISREGARDING THE COHERENT, CONSISTENT AND CREDIBLE EYEWITNESS ACCOUNT OF DEFENSE WITNESSES - ALL IN CONTRAVENTION OF THE RULES GOVERNING QUANTUM OF PROOF IN CRIMINAL CASES AND THE PRESUMPTION OF INNOCENSE EXISTING IN FAVOR OF ACCUSED GARCIA; II THE TRIAL COURT ERRED IN COMPLETELY DISREGARDING THE DEFENSE OF ALIBI INTERPOSED BY ACCUSED-APPELLANT JESSIE GARCIA WHO WAS SOMEWHERE ELSE AT THE TIME AS TO RENDER IT PHYSICALLY IMPOSSIBLE FOR HIM TO HAVE BEEN AT THE SCENE OF THE CRIME AND EVEN IF THE SAME IS SUBSTANTIATED BY CLEAR AND CONVINCING EVIDENCE, THAT IS, THE TESTIMONIES OF OITHER DEFENSE WITNESSES WHO WERE ONE IN SAYING THAT HE WAS NOT PRESENT THEREAT; III

THE LOWER COURT ERRED IN ENTERING A VERDICT OF CONVICTION FOR JESSIE GARCIA INSTEAD OF ACQUITTAL WHEN NONE OF THE OTHER ACCUSED, AFTER HAVING ADMITTED THEIR PARTICIPATION IN THE CRIME, IMPLICATED HIM; IV THE LOWER COURT ERRED, IN AWARDING MORAL AND EXEMPLARY DAMAGES IN THE ABSENCE OF EVIDENCE THEREFOR. For accused-appellant Garchitorena: I THE COURT ERRED IN NOT GIVING WEIGHT AND CREDENCE OVER THE TESTIMONY OF AN EXPERT WITNESS. II THE COURT ERRED IN FINDING ACCUSED ARNOLD GARCHITORENA TO HAVE WILLFULLY EXECUTED THE ACTS COMPLAINED OF. Accused-appellant Pamplona capitalized on Dulce Borero's inaction at the time when she had supposedly witnessed the slaying of her younger brother. He argued that if she really witnessed the crime, she would have had readily helped her brother Mauro instead of fleeing. Accused-appellant Garcia anchored his acquittal on his defense of alibi, while accused-appellant Garchitorena used his alleged mental disorder, specifically, schizophrenia, as a ground to free himself from criminal liability.

The core issues raised by the both accused-appellants Pamplona and Garcia are factual in nature and delve on the credibility of the witnesses. Since the accused-appellants raise factual issues, they must use cogent and convincing arguments to show that the trial court erred in appreciating the evidence. They, however, have failed to do so. Accused-appellant Pamplona contends that the trial court's decision was rendered by a judge other than the one who conducted trial. Hence, the judge who decided the case failed to observe the demeanor of the witnesses on the stand so as to gauge their credibility. This argument does not convince the Court for the reason it has consistently maintained, to wit: We have ruled in People v. Sadiangabay (G.R. No. 87214, March 30, 1993, 220 SCRA 551), that the circumstance alone that the judge who wrote the decision had not heard the testimonies of the prosecution witnesses would not taint his decision. After all, he had the full record before him, including the transcript of stenographic notes which he could study. The efficacy of a decision is not necessarily impaired by the fact that its writer only took over from a colleague who had earlier presided at the trial, unless there is a clear showing of a grave abuse of discretion in the factual findings reached by him.[8] A perusal of the trial court's decision readily shows that it was duly based on the evidence presented during the trial. It is evident that he thoroughly examined the testimonial

and documentary evidence before him and carefully assessed the credibility of the witnesses. This Court finds no plausible ground to set aside the factual findings of the trial court, which were sustained by the CA. The eyewitness Dulce Borero's testimony clearly established Pamplona and Garcia's participation and, consequently, their culpability in the appalling murder of Mauro Biay:[9] "Fiscal Nofuente (To the witness) Q: Madam witness, do you know Mauro Biay? A: Yes sir. xxx Q: Do you know likewise the cause of his death? A: Yes sir. Q: What was the cause of his death? A: He was repeatedly stabbed sir. Q: You said that Mauro Biay was repeatedly stabbed, who stabbed Mauro Biay repeatedly? A: Arnold Gatchitorena, was stabbing repeatedly the victim sir. Q: Was Arnold Gatchitorena alone when he stabbed Mauro Biay?

A: They were three (3) who were stabbing Mauro Biay, sir. Q: You said that they were three who were stabbing Mauro Biay, who are the other two? A: Jessie Garcia and Joey Pamplona sir. Q: So that when you said three, you are referring to Arnold Gatchitorena, Joey Pamplona and Jessie Garcia? A: Yes sir. Q: Now, when [did] this stabbing incident [happen]? A: On September 22, 1995 sir. Q: Do you know what was [the] time when this incident happened on September 22, 1995? A: 9:00 o'clock in the evening sir. Q: Where [did] this stabbing [happen]? A: At Sta. Inez, Almeda Subdivision, dela Paz, Bian, Laguna sir. Q: Could you tell Madam Witness, where in particular place in Sta. Inez, Almeda Subdivision this stabbing incident happened? A:

In the street near the artesian well sir. Q: Do you know where is that street? A: Sta Inez St., Almeda Subdivision, dela Paz, Bian, Laguna sir. Q: You said a while ago that accused Arnold Gatchitorena, Jessie Garcia, Joey Pamplona repeatedly [stabbed] Mauro Biay, do you know these three accused? A: Yes sir.

Q: What is the name of that person wearing that blue t-shirts? A: Arnold Gatchitorena sir. Q: We would like to confirm if he is really Arnold Gatchitorena pointed to by the witness? Interpreter: The person pointed to by the witness wearing blue t-shirts identified himself as Arnold Gatchitorena. Fiscal: Do you know the name of second person whom you tapped on his side wearing white t-shirts? A: Yes sir. Q: What is his name? A: Jessie Garcia sir. Interpreter: The person pointed to by the witness identified himself as certain Jessie Garcia. Fiscal: Likewise Madam Witness, do you know the name of a person in longsleeves polo shirts-checkered? A: Yes sir, Joey Pamplona sir. Interpreter: The person pointed by the witness identified himself as certain Joey Pamplona.

xxx Q: Will you kindly step down from your seat and tap the three accused that you have pointed to us to be the persons who stabbed and killed your brother Mauro Biay? Court: Police Officer Dionisio will you kindly accompany the witness. P02 Dionisio: Yes sir.

Fiscal: I would like to manifest Your Honor, that the witness was crying when she was pointing to the three accused, uttering that "Sila ang pumatay sa aking kapatid!".

xxx

xxx Q: How far were you from Mauro Biay when he was being stabbed by the three accused Joey Pamplona, Jessie Garcia, and Arnold Gatchitorena? A: Seven (7) arms length sir. Q: You said that your brother was stabbed successively by the three accused, how did it [happen] Madam Witness? A: They called him sir. Q: Who was called? A: Mauro Biay sir. Q: Who called Mauro Biay? A: It was Jessie who called sir. Q: When you said Jessie, are you referring to Jessie Garcia, one of the accused in this case? A: Yes sir. Q: When Mauro Biay was called by Jessie Garcia, what was [M]auro Biay doing there? A: Mauro Biay approached sir.

Q: By the way Madam Witness, do you know why Mauro Biay was in that place where the incident happened? A: Yes sir. Atty. Pajares: Witness would be incompetent Your Honor. Court: Witness may answer. Fiscal: Why was he there? A: He was selling "balot" sir. xxx Fiscal: When Mauro Biay approached Jessie Garcia, what [did] Mauro Biay do, if any? A: Jessie Garcia twisted the hand of my brother and placed the hand at his back sir. Q: Who were the companions of Jessie Garcia when he called [M]auro Biay? A: Joey Pamplona and Jr. Gatchitorena sir. Q:

When you said Jr. Gatchitorena are you referring to Arnold Gatchitorena? A: Yes sir. Q: So that when Jessie Garcia called Mauro Biay, he was together with Arnold Gatchitorena and Joey Pamplona? A: Yes sir. Q: If you know Madam Witness, what did Joey Pamplona and Arnold Gatchitorena do after Jessie Garcia twisted the arm of Mauro Biay on his back? A: Arnold Gatchitorena repeatedly stabbed [M]auro Biay at his back and also Jessie Garcia also stabbed my brother sir. xxx Q: Were you able to know the weapon used to stab Mauro Biay? A: It was like a shiny bladed instrument sir. Q: Now, what was the position of Mauro Biay when being stabbed by the three accused? A: He was struggling to free himself sir. Q:

You said that he was struggling to free himself, why did you say that he was struggling to free himself? A: Because I could see sir. Q: You see what? A: Because that three were repeatedly stabbing Mauro Biay sir. Q: Aside from stabbing Mauro Biay, what was Joey Pamplona doing to Mauro Biay, if you can still remember? A: He was also repeatedly stabbing my brother sir. Q: Aside from that stabbing, what else if any Joey Pamplona was doing to Mauro Biay? A: Aside from stabbing Mauro Biay Joey Pamplona was also struggling [strangling] the neck of Mauro Biay sir. Q: You said that Mauro Biay was stabbed by the three accused successively, was Mauro Biay hit by these stabbing? A: Yes sir. Q: Why do you know that he was hit by stabbing of the three? A:

Because I saw the blood oozing from the part of his body sir. Q: Now, what happened to Mauro Biay, when he was stabbed and hit by the successive stabbing of the three accused? A: The victim Mauro Biay was suddenly slumped face down on the ground sir. xxx Q: What did you learn if any when you went to the hospital to see your brother [M]auro Biay? A: He was already dead sir. Even under cross-examination, Dulce Borero was unwavering, straightforward, categorical and spontaneous in her narration of how the killing of her brother Mauro took place.[10] Notably, her testimony as to the identification of Garchitorena as the one who stabbed Mauro Biay was even corroborated by defense witness Miguelito Gonzalgo,[11] thus: Q: From the time you saw these two persons near the artesian well, what happened after that, mr. witness? A: Mauro Biay slumped on the floor and I saw Junior stabbed once more the victim but I am not sure if the victim was hit at the back, ma'am. Q:

How far were you from the two when you saw the incident, mr. witness? A: More or less 7 to 8 meters, ma'am. Q: Were there anything blocking your sight from the place where you were standing to the place of incident, mr. witness? A: None, ma'am. Absent any showing of ill motive on the part of Borero, we sustain the lower court in giving her testimony full faith and credence. Moreover, the prosecution's version is supported by the physical evidence.[12] Borero's testimony that the victim was successively stabbed several times conforms with the autopsy report that the latter suffered multiple stab wounds.[13] Accused-appellant Pamplona's argument that there were inconsistencies in the testimony of prosecution witnesses Borero is not convincing. He specifically points out that in the direct examination of Borero, she stated that it was Jessie Garcia who twisted the hand of Mauro Biay backwards when the latter approached the former.[14] In the cross-examination, she stated that it was Joey Pamplona who strangled the victim when the latter approached Jessie Garcia. The seeming inconsistencies between her direct testimony and her cross-examination testimonies are not sufficient ground to disregard them. In People v. Alberto Restoles y Tuyo, Roldan Noel y Molet

and Jimmy Alayon y De la Cruz,[15] we ruled that: ...minor inconsistencies do not affect the credibility of witnesses, as they may even tend to strengthen rather than weaken their credibility. Inconsistencies in the testimony of prosecution witnesses with respect to minor details and collateral matters do not affect either the substance of their declaration, their veracity, or the weight of their testimony. Such minor flaws may even enhance the worth of a testimony, for they guard against memorized falsities. Moreover, such inconsistencies did not contradict the credibility of Borero or her narration of the incident. On the contrary, they showed that her account was the entire truth. In fact, her narration was in harmony with the account of defense witness Gonzalgo. We note further that both the Sworn Statement[16] of Borero and her testimony before the lower court[17] were in complete congruence. Undoubtedly, accused-appellants' identities as the perpetrators were established by the prosecution. The prosecution witness was able to observe the entire incident, because she was there. Thus, we find no reason to differ with the trial court's appreciation of her testimony. Positive identification, where categorical and consistent, and not attended by any showing of ill motive on the part of the eyewitnesses on the matter, prevails over alibi and denial.[18]

Accused-appellant Garcia's alibi has no leg to stand on. In People v. Desalisa,[19] this Court ruled that: ...for the defense of alibi to prosper, the accused must prove not only that he was at some other place when the crime was committed, but also that it was physically impossible for him to be at the scene of the crime or its immediate vicinity through clear and convincing evidence. Here, the crime was committed at Binan, Laguna. Although Garcia testified that he was still riding a bus from his work in Blumentritt and arrived in Binan only at 11:00 P.M. or two hours after the killing incident, still, he failed to prove that it was physically impossible for him to be at the place of the crime or its immediate vicinity. His alibi must fail. Accused-appellant Garchitorena's defense of insanity has also no merit. Unlike other jurisdictions, Philippine courts have established a more stringent criterion for the acceptance of insanity as an exempting circumstance.[20] As aptly argued by the Solicitor General, insanity is a defense in the nature of confession and avoidance. As such, it must be adequately proved, and accused-appellant Garchitorena utterly failed to do so. We agree with both the CA and the trial court that he was not totally deprived of reason and freedom of will during and after the stabbing incident, as he even instructed his co-accused-appellants to run away from the scene of the crime. Accused-appellant Garcia also argues that there was no conspiracy, as "there was no evidence

whatsoever that he aided the other two accused-appellants or that he participated in their criminal designs."[21] We are not persuaded. In People v. Maldo,[22] we stated: "Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Direct proof is not essential, for conspiracy may be inferred from the acts of the accused prior to, during or subsequent to the incident. Such acts must point to a joint purpose, concert of action or community of interest. Hence, the victim need not be actually hit by each of the conspirators for the act of one of them is deemed the act of all." (citations omitted, emphasis ours) In this case, conspiracy was shown because accused-appellants were together in performing the concerted acts in pursuit of their common objective. Garcia grabbed the victim's hands and twisted his arms; in turn, Pamplona, together with Garchitorena, strangled him and straddled him on the ground, then stabbed him. The victim was trying to free himself from them, but they were too strong. All means through which the victim could escape were blocked by them until he fell to the ground and expired. The three accused-appellants' prior act of waiting for the victim outside affirms the existence of conspiracy, for it speaks of a common design and purpose. Where there is conspiracy, as here, evidence as to who among the accused rendered the fatal blow is not necessary. All conspirators are liable as co-principals regardless of the intent and the character of their

participation, because the act of one is the act of all.[23] The aggravating circumstance of superior strength should be appreciated against the accusedappellants. Abuse of superior strength is present whenever there is inequality of forces between the victim and the aggressor, considering that a situation of superiority of strength is notoriously advantageous for the aggressor and is selected or taken advantage of by him in the commission of the crime.[24] This circumstance was alleged in the Information and was proved during the trial. In the case at bar, the victim certainly could not defend himself in any way. The accused-appellants, armed with a deadly weapon, immobilized the victim and stabbed him successively using the same deadly weapon. All told, the trial court correctly convicted the accused-appellants of murder, considering the qualifying circumstance of abuse of superior strength. Since an aggravating circumstance of abuse of superior strength attended the commission of the crime, each of the accusedappellants should be sentenced to suffer the penalty of death in accordance with Article 63[25] of the Revised Penal Code. Murder, under Article 248[26] of the Revised Penal Code, is punishable by reclusion perpetua to death. Following Article 63 of the same code, the higher penalty of death shall be applied. In view, however, of the passage of R.A. No. 9346,[27] otherwise known as the Anti-Death Penalty Law, which prohibits the imposition of the death penalty, reclusion

perpetua without eligibility for parole should instead be imposed. Accordingly, accused-appellants shall be sentenced to reclusion perpetua without eligibility for parole in lieu of the penalty of death. While the new law prohibits the imposition of the death penalty, the penalty provided for by law for a heinous offense is still death and the offense is still heinous.[28] Consequently, the civil indemnity for the victim is still P75,000.00. In People v. Quiachon,[29] we explained that even if the penalty of death was not to be imposed on appellant because of the prohibition in Republic Act No. 9346, the civil indemnity of P75,000.00 was still proper. Following the ratiocination in People v. Victor,[30] the said award is not dependent on the actual imposition of the death penalty, but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the crime. Hence, we modify the award of civil indemnity by the trial court from P50,000.00 to P75,000.00. Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the commission of the crime. Likewise the award of P50,000.00 for moral damages is modified and increased to P75,000.00, consistent with recent jurisprudence[31] on heinous crimes where the imposable penalty is death, it is reduced to reclusion perpetua pursuant to R.A. 9346. The award of moral damages does not require allegation and proof of the emotional suffering of the heirs, since the emotional wounds from the vicious killing of the victim

cannot be denied.[32] The trial court's award of exemplary damages in the amount of P50,000.00 shall, however, be reduced to P30,000.00, also pursuant to the latest jurisprudence on the matter.[33] As to the award of actual damages amounting to P16,700.00, we modify the same. In People v. Villanueva,[34] this Court declared that "...when actual damages proven by receipts during the trial amount to less than P25,000.00, as in this case, the award of temperate damages for P25,000.00 is justified in lieu of actual damages of a lesser amount." In the light of such ruling, the victim's heirs in the present case should, therefore, be awarded temperate damages in the amount of P25,000.00. The award of P408,000.00 for loss of earning capacity is justified. As a rule, documentary evidence should be presented to substantiate the claim for damages for loss of earning capacity. By way of exception, damages for loss of earning capacity may be awarded despite the absence of documentary evidence when (1) the deceased is self-employed and earning less than the minimum wage under current labor laws, in which case judicial notice may be taken of the fact that in the deceased's line of work no documentary evidence is available; or (2) the deceased is employed as a daily wage worker earning less than the minimum wage under current labor laws.[35] It cannot be disputed that the victim, at the time of his death, was selfemployed and earning less than the minimum wage under current labor laws. The computation arrived at by the trial court was in accordance with the formula for computing the

award for loss of earning capacity.[36] Thus, Award for lost earnings = 2/3 [80-age at time of death] x [gross annual income - 50% (GAI)] = 2/3 [80-29] x P24,000.00 P12,000.00 = (34) x (P12,000.00) = P408,000.00 WHEREFORE, the appealed decision of the CA in CA-G.R. CR HC No. 00765, finding the three-accused appellants guilty beyond reasonable doubt of murder is hereby AFFIRMED WITH the following MODIFICATIONS: (1) the penalty of death imposed on accusedappellants is REDUCED to RECLUSION PERPETUA without eligibility for parole pursuant to RA 9346; (2) the monetary awards to be paid jointly and severally by the accused-appellants to the heirs of the victim are as follows: P75,000.00 as civil indemnity, P75,000.00 as moral damages, P30,000.00 as exemplary damages, and P25,000.00 as temperate damages in lieu of actual damages; (3) P408,000.00 for loss of earning capacity; and (4) interest is imposed on all the damages awarded at the legal rate of 6% from this date until fully paid.[37] No costs. SO ORDERED.

EN BANC [G.R. No. 174483, March 31, 2009] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RAMON REGALARIO, MARCIANO REGALARIO, SOTERO REGALARIO, BIENVENIDO REGALARIO AND NOEL REGALARIO, ACCUSEDAPPELLANTS. DECISION LEONARDO-DE CASTRO, J.: For automatic review is the decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 01556 which affirmed with modification, an earlier decision[2] of the Regional Trial Court of Ligao, Albay, Branch 13 in Criminal Case No. 3613, finding accused-appellants Ramon, Marciano, Sotero, Bienvenido and Noel, all surnamed Regalario guilty of murder and sentencing them to suffer the penalty of reclusion perpetua and to indemnify jointly and severally the heirs of the victim in the amount of P50,000.00, and another sum of P50,000.00 as moral damages and to pay the costs of the proceedings. In the court of origin, accusedappellants Ramon, Marciano, Sotero, Bienvenido and Noel were originally charged with Homicide. However, after reinvestigation of the case, the Panel of Prosecutors of the Department of Justice, Legaspi City, consisting of State Prosecutors Romulo SJ Tolentino, Mary May B. De Leoz and Elmer M. Lanuzo filed an amended information[3] charging the accused-appellants with murder, committed as follows:

That on February 22, 1997 at about 11:00 in the evening, at Brgy. Natasan, Municipality of Libon, province of Albay, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another, with intent to kill, did then and there willfully, unlawfully and feloniously with cruelty, treachery, abuse of superior strength, nighttime attack, assault, strike and hit ROLANDO SEVILLA with wooden clubs (bahi) used as their night sticks, hitting the latter at the different parts of his body and tying down his hands and feet with a rope, thereby inflicting upon the latter serious and mortal wounds which directly caused his death, to the damage and prejudice of his legal heirs. ACTS CONTRARY TO LAW. On October 9, 1998, accusedappellants, duly assisted by their counsel, entered a plea of "not guilty" to the offense charged.[4] Thereafter, trial ensued. The prosecution presented the following as its witnesses: Zaldy Siglos, Nancy Sara, Ryan Sara, Armando Cabais Poblete, Ronnie Siglos, Cynthia Sevilla, Norma Torres, Policeman Jose Gregorio, Cenen Talagtag, Cesar Sazon and Dr. Mario Cerillo, while Antonio Relato and Nicanor Regonia testified on rebuttal. Nancy Sara, Cynthia Sevilla and Ryan Sara were presented for a second time also as rebuttal witnesses. On their part, accused-appellants took the witness stand. All raised the defense of denial except for Ramon who admitted the act charged but claimed self-defense. To corroborate

their defense, Jose Poblete and Adonis Velasco were presented. The defense also presented Senior Police Officer 2 (SPO2) Jimmy Colisao, Harold Reolo, Ma. Julieta Razonable, and Dr. Leopoldo Barrosa II. On August 24, 2000, the trial court rendered its decision[5] giving full faith and credit to the prosecution's evidence. It ruled out accusedappellant Ramon Regalario's claim of self defense, and held that there was conspiracy among the accusedappellants in the commission of the crime as shown in the manner in which all of them inflicted the wounds on the victim's body. It further ruled that the killing was qualified to murder by abuse of superior strength and by their scoffing at the body of the victim. It also appreciated the presence of the mitigating circumstance of voluntary surrender. The pertinent dispositive portion of the said decision reads: WHEREFORE, judgment is hereby rendered finding Ramon, Sotero, Bienvenido, Marciano and Noel, all surnamed Regalario, guilty beyond reasonable doubt of the crime of Murder under Par. 1, of Art. 248 of the Revised Penal Code, as amended, with the aggravating circumstance of scoffing at the corpse of the victim. However, accused are entitled to the benefit of the mitigating circumstance of voluntary surrender which offset the aggravating circumstance of scoffing at his corpse, hence, are hereby sentenced to suffer the Penalty of Reclusion Perpetua together with the accessory penalties provided for by law. The accused are hereby ordered to indemnify jointly and severally the heirs of the late Rolando Sevilla the

amount of P50,000.00 and another sum of P50,000.00 as moral damages and to pay the costs. Pursuant to Supreme Court Administrative Circular No. 2-92 the P200,000.00 bail bond put up by accused Marciano Regalario is hereby cancelled and is ordered recommitted to jail. SO ORDERED. The record of this case was forwarded to this Court for automatic review, in view of the penalty imposed. In our Resolution[6] of August 13, 2001, We accepted the appeal and directed the Chief of the Judicial Records Office, to send notices to the parties to file their respective briefs. The Court also required the Jail Warden, Municipal Jail, Polangui, Albay to transfer accused-appellants to the Bureau of Corrections, Muntinlupa City, and make a report of such transfer within ten (10) days from notice. Likewise, the Director of the Bureau of Corrections was required to confirm the detention of accused-appellants. Accusedappellants filed their Appellants' Brief[7] on December 4, 2001, while the People, thru the Office of the Solicitor General, filed its Appellee's Brief[8] on July 30, 2002. Pursuant to our pronouncement in People v. Mateo[9] which modified the provisions of the Rules of Court insofar as they provide for direct appeals from the RTC to this Court in cases where the penalty imposed by the trial court is death, reclusion perpetua or life imprisonment, this case was referred for appropriate action and disposition to the CA

where it was docketed as CA-G.R. No. 01556. The evidence for the prosecution is summarized by the Office of the Solicitor General, as follows: Accused-appellants, all surnamed Regalario, are barangay officials of Natasan, Libon, Albay and related to one another by consanguinity. Marciano, barangay chairman, Sotero, barangay kagawad and Ramon, barangay tanod, are brothers while Bienvenido Regalario, also barangay tanod, is their cousin and Noel is the son of Marciano. (TSN, November 16, 1998, p. 9; RTC Order dated October 9, 1998, pp. 115-117) On the night of February 22, 1997, a dance and singing contest was being held in the barangay pavilion of Natasan, Libon, Albay. At around ten o'clock that evening, Rolando Sevilla and Armando Poblete were enjoying the festivities when appellant Sotero Regalario approached them (TSN, December 7, 1998, p.4). To avoid trouble, the two distanced themselves from Sotero. Nevertheless, a commotion ensued. (ibid., p. 5). Appellants Sotero and Bienvenido Regalario were seen striking Rolando Sevilla several times with their respective nightsticks, locally known as bahi. (TSN, November 16, 1998, pp. 13-17, 32, 34, 36-37). The blows caused Sevilla to fall down in a sitting position but after a short while he was able to get up (ibid., pp. 16-17). He ran away in the direction of the house of appellant Mariano Regalario, the barangay captain (ibid., pp. 18-38). Bienvenido and Sotero Regalario chased Sevilla (ibid., p. 38, TSN, December 7, 1998. p. 6). When Sevilla was already near

Marciano's house, he was waylaid by appellant Ramon Regalario and at this point, Marciano Regalario and his son Noel Regalario came out of their house (TSN, December 7, 1998, pp. 7-9 and 35). Noel was carrying a seven-inch knife. The five appellants caught the victim in front of Marciano's house. Armed with their nightsticks, they took turns in hitting the victim until he slumped to the ground face down (ibid., pp. 8, 35 and 38). In that position, Sevilla was boxed by Marciano in the jaw. After a while, when Sevilla was no longer moving, Marciano first ordered the others to kill the victim and to tie him up (ibid., pp. 36-37). Upon hearing the order, Bienvenido, with the help of Sotero, tied the neck, hands and feet of the victim with a nylon rope used by farmers for tying carabao. The rest of the group just stood by watching. (ibid., pp. 37-38). In the early morning of February 23, 1997, Cynthia Sevilla, the victim's widow, after she was informed of her husband's death, went to the poblacion of Libon to report the incident at the town's police station (TSN, December 8, 1998, pp. 7-8). However, her statements were not entered in the police blotter because appellant Marciano Regalario had earlier reported to them, at two o'clock in the morning, a different version of the incident, i.e., it was the victim Sevilla who shot Marciano's brother Ramon and that Sevilla, allegedly still alive, was placed under the custody of the barangay tanods. (ibid., p. 7; TSN, November 20, 1998 [A.M. Session], pp. 9-10). At around eight o'clock of the same morning, SPO4 Jose Gregorio, with some other police officers and Cynthia Sevilla, left the police station on board a truck and proceeded to the crime

scene in Natasan. SPO4 Gregorio conducted an investigation of the incident. (TSN, November 20, 1998 [A.M. Session], pp. 10-12). Thereafter, the policemen took the victim's cadaver to the police station in the poblacion (ibid., p. 26) where pictures were taken showing the victim's hands and legs tied behind him [Exhibits `C' and `D'] (ibid., pp. 14-15; TSN, December 8, 1998, p. 10; TSN, November 20, 1998 [P.M. Session], pp 5-7). On that same day, SPO4 Gregorio requested the Libon's Rural Health Unit to conduct an autopsy on the victim's body but since the municipal health officer was not around, it was only performed the next day, February 24 (TSN, November 20, 1998 [A.M. Session], p. 26; TSN, December 8, 1998, pp. 10-11; TSN, November 20, 1998 [P.M. Session], p. 11). After Dr. Mario Cerillo, Municipal Health Officer of Libon conducted the autopsy, he forthwith issued a Medico-Legal Report dated February 24, 1997 (Exhibit `B'), the pertinent portions of which read: Head : Lacerated wound 4 cm frontal area, Right. : Lacerated wound 8 cm. occipital area, Right. : Lacerated wound 4 cm. with fractured skull (post auricular area), Right. : Abrasion 4 x 2 cm.

eyebrow, Right. : Abrasion 2 cm. x 1 cm. with lacerated wound 1 cm. eyebrow, Left. : Periorbital Hematoma Left and Right eye. : Lacerated wound 1 cm. lower lip, Left. Neck : Stab wound 2 cm. penetrating lateral base of the neck just above the clavicle, Right. : Stab wound 2 cm., 6 cm. depth lateral base of the neck just above the clavicle, Right. Trunk : Hematoma 10 x 8 cm.

clavicular area, Right. : Multiple abrasion chest : Contusion 7 x 2 cm., 7th Intercorsal space and clavicular line, left.

Extremities : Multiple abrasion and contusion on both Right and Left arm and forearm. : Abrasion (Ropemark) around Right and Left wrist. : Abrasion (Ropemark) around distal 3rd of both Right and Left leg.

Sever blood loss secondary to stab wound and multiple lacerated wound, probably secondary to intracranial hemorrhage. On the witness stand, Dr. Cerillo opined that the victim's lacerated wounds could have been caused by a blunt instrument like a hard stick, a stone or iron bar, his stab wounds by a sharp-edged instrument or knife, his contusions and hematoma by a fist blow or through contact with a blunt instrument. Also according to the physician, the sharp object which caused the victim's stab wounds could have been a knife 2 cm. wide and 6 cm. long because they were clean cut wounds. (TSN, November 20, 1998 [P.M. Session], pp. 1415).[10] On the other hand, the accusedappellants' Brief presents a different story: At the time of the incident in question, accused Marciano Regalario was the incumbent barangay captain of Natasan, Libon, Albay. Accused Sotero was a kagawad, while Ramon and Bienvenido were barangay tanods of the same place. Noel Regalario had no public position. He is the son of one of the other accused. On the night of February 22, 1997, a public dance and singing contest was held in their barangay. Naturally, being barangay officials, the accused, (except Noel who is not an official and whose wife has just given birth) were at the place of the celebration, discharging their peace-keeping duties. They were posted at different places in that vicinity. At first, a fire broke out in the toilet of the Day Care Center. It was attended to by the persons assigned in that area. A while later, there was

xxx xxx xxx xxx

Cause of Death:

another commotion in the area assigned to accused Ramon Regalario. When he approached the group where the disturbance was taking place and tried to investigate, Rolando Sevilla suddenly emerged from the group and without any ado, fired a shot at him. He was hit at the left shoulder. Instinctively, and in order to disable Sevilla from firing more shots, which might prove fatal, he struck his assailant with his nightstick and hit him at the back of his head. This is the blow which Nancy Sara and Zaldy Siglos said were delivered by Sotero and Bienvenido. This blow caused Sevilla to reel backward and lean on the bamboo fence. To prevent Sevilla from regaining his balance, Ramon pressed his counter-attack by continuing to harass him with blows of his nightstick. As Ramon pressed on forward, Sevilla retreated backward. Ramon kept him busy parrying the blows which hit his arms and front part of the body, as they were face to face with each other. But even in the course of such harassment, Sevilla was able to fire a second shot which missed Ramon. When they reached the end of the road pavement, Sevilla lost his footing on edge of the pavement and fell down. At that juncture, Sotero arrived and shouted to Ramon to stop beating Rolando. But Ramon told him that Rolando still had the gun. So, Sotero plunged at Rolando and they wrestled on the ground for the possession of the gun. As they struggled, the gun went off but no one was hurt. When Rolando raised his arms to move the gun away from Sotero, Ramon knocked the gun off his hand and it fell near the place where Jose Poblete was standing. Poblete just arrived at the scene

along with Marciano Regalario who was already told that his brother Ramon was shot by Sevilla. Poblete picked up the gun. He was instructed by Marciano to keep it until it is turned over to the authorities. The wounded Ramon Regalario was brought to town for treatment and later to the provincial hospital. Marciano and Sotero proceeded to the police station to report the shooting of Ramon. Bienvenido Regalario, the barangay tanod, arrived at the scene after the fact. He was instructed by Marciano, the barangay captain to effect the arrest of Rolando Sevilla for the crime of shooting Ramon. According to Bienvenido, they were taught in their training seminar to just use a rope in lieu of handcuffs because they could not be supplied with it. So, he tied the hands and feet of Rolando Sevilla for fear that he might be able to escape. On the early morning of February 23, a team of policemen went to Natasan and found the dead body of Rolando Sevilla. Jose Poblete also turned over to the police, Rolando Sevilla's gun. Meanwhile, Noel Regalario, after learning of the incident, scoured the place where the third shot was fired during the struggle between Sotero and Rolando. He found a .38 caliber slug which was also turned over to the police.[11] On May 31, 2006, the CA promulgated the herein challenged decision affirming for the most part the decision of the trial court with modification as to the penalty imposed. Unlike the trial court, the

CA did not appreciate the mitigating circumstance of voluntary surrender in favor of the accused-appellants. Thus, the penalty was changed from reclusion perpetua to death, and an additional award of P25,000.00 as exemplary damages was likewise imposed. Pertinently, the CA decision reads in part: WHEREFORE, the assailed decision is AFFIRMED with MODIFICATION. The accused-appellants are hereby sentenced to suffer the penalty of DEATH and to pay, jointly and severally, the heirs of Rolando Sevilla the amount of P25,000.00 as exemplary damages. Let the entire records of this case be elevated to the Supreme Court for its review, pursuant to AM No. 00-5-03SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases) which took effect on October 15, 2004. SO ORDERED.[12] As can be gleaned from the above quote, the CA elevated the instant case to this Court in view of the penalty imposed. In our Resolution[13] dated November 14, 2006, we required the parties to simultaneously submit their respective supplemental briefs. On December 12, 2006, the people filed a manifestation[14] stating that it is waiving the filing of a supplemental brief. Accused-appellants filed their supplemental brief[15] on February 15, 2007. In their Brief, accused-appellants raise the following assignment of errors: THE TRIAL COURT ERRED IN HOLDING THAT ALL OF THE ACCUSED PARTICIPATED IN THE KILLING OF ROLANDO SEVILLA AND

BASING ITS DECISION, NOT ON DIRECT EVIDENCE BUT ON ITS OWN SUPPOSITIONS, CONJECTURES AND INFERENCES; THE TRIAL COURT GRIEVOUSLY MISAPPRECIATED THE EVIDENCE AND DISPLAYED BIAS WHEN IT LEANED IN FAVOR OF THE PROSECUTION EVIDENCE DESPITE THEIR VITAL CONTRADICTIONS AND OBVIOUS FALSEHOODS; THE TRIAL COURT ERRED IN FINDING THAT THERE WAS CONSPIRACY AMONG THE ACCUSED AND THAT THE COMMISSION OF THE OFFENSE WAS ATTENDED BY THE QUALIFYING CIRCUMSTANCES OF ABUSE OF SUPERIOR STRENGTH AND SCOFFING AT THE BODY OF THE VICTIM; THE LOWER COURT ERRED IN NOT FINDING THAT THE DECEASED WAS KILLED IN SELF-DEFENSE AND/OR DEFENSE OF RELATIVE THE TRIAL COURT ERRED IN AWARDING DAMAGES TO THE HEIRS OF THE DECEASED.[16] We begin our evaluation with accused-appellant Ramon Regalario's claim of self-defense. Both the CA and the trial court gave no credence to this theory of selfdefense. When self-defense is invoked by an accused charged with murder or homicide he necessarily owns up to the killing but may escape criminal liability by proving that it was justified and that he incurred no criminal liability therefor. Hence, the three (3) elements of self-defense, namely: (a) unlawful aggression on the part of the victim; (b) reasonable necessity of the means employed to

prevent or repel the aggression; and (c) lack of sufficient provocation on the part of the person defending himself, must be proved by clear and convincing evidence. However, without unlawful aggression, there can be no self-defense, either complete or incomplete.[17] Accused-appellant Ramon contends that the victim Rolando Sevilla committed an act of unlawful aggression with no provocation on his [Ramon's] part. Ramon testified that he was trying to investigate a commotion when, without warning, Rolando emerged from the group, thrust and fired his gun at him, hitting him in the left shoulder. To disable Rolando from firing more shots, Ramon struck the victim's head at the back with his nightstick, causing the victim to reel backward and lean on the bamboo fence. He continued hitting Rolando to prevent the latter from regaining his balance and, as he pressed on farther, the victim retreated backward. By Ramon's own account, after he was shot, he hit the victim at the back of the latter's head and he continued hitting the victim who retreated backward. From that moment, the inceptive unlawful aggression on the part of the victim ceased to exist and the continuation of the offensive stance of Ramon put him in the place of an aggressor. There was clearly no longer any danger, but still Ramon went beyond the call of self-preservation. In People v. Cajurao,[18] we held: ...The settled rule in jurisprudence is that when unlawful aggression ceases, the defender no longer has the right to kill or even wound the former aggressor. Retaliation is not a justifying circumstance. Upon the

cessation of the unlawful aggression and the danger or risk to life and limb, the necessity for the person invoking self-defense to attack his adversary ceases. If he persists in attacking his adversary, he can no longer invoke the justifying circumstance of self-defense. Selfdefense does not justify the unnecessary killing of an aggressor who is retreating from the fray. (Emphasis supplied) Ramon's claim of self-defense is further belied by the presence of two (2) stab wounds on the neck, four (4) lacerated wounds on the head, as well as multiple abrasions and contusions on different parts of the victim's body, as shown in the Medico-Legal Report. Dr. Mario Cerillo who conducted the postmortem examination on the victim revealed that the victim's lacerated wounds could have been caused by a blunt instrument like a hard stick, a stone or an iron bar; his stab wounds by a sharp-edged instrument or knife; his contusions and hematoma by a fist blow or through contact with a blunt instrument. He also declared that the sharp object which caused the victim's stab wounds could have been a knife 2 centimeters (cms.) wide and 6 cms. long because they were clean-cut wounds. Indeed, even if it were true that the victim fired a gun at Ramon, the number, nature and severity of the injuries suffered by the victim indicated that the force used against him by Ramon and his co-accused was not only to disarm the victim or prevent him from doing harm to others. The four (4) other accusedappellants, namely, Sotero, Marciano, Bienvenido and Noel, to exonerate themselves, denied their

involvement in inflicting wounds on Rolando. Sotero claimed that he arrived at the scene of the crime at the time when Rolando lost his footing on the edge of the pavement and fell down. He even shouted at Ramon to stop beating Rolando. However, when Ramon told him that Rolando still had the gun, he jumped on Rolando and they wrestled on the ground for the possession of the gun. Marciano maintained that he, together with Jose Poblete, arrived at the crime scene when Ramon had already knocked the gun out of Rolando's hand and the gun fell near the place where Jose Poblete was standing. When he went to that place, he already knew that his brother (Ramon) had been shot, so, he told the latter to go to the hospital. Thereafter, he and Sotero proceeded to the police station to report the shooting incident. Bienvenido asserted that he arrived at the crime scene after the shooting incident. He was asked by Marciano to arrest Rolando. Lastly, Noel insisted that he was not present when the shooting incident took place. He was inside their house sleeping, as his wife had just given birth. We are not convinced. Accused-appellants' denials cannot overcome the positive identification by the prosecution's witnesses. Elementary is the rule that positive identification, where categorical and consistent, prevails over unsubstantiated denials because the latter are negative and self-serving,

and thus, cannot be given any weight on the scales of justice.[19] The participation of each of the accusedappellants can be fully ascertained from the clear, categorical and spontaneous testimony given by prosecution witness, Ronnie Siglos, who was at the scene of the crime, thus: PROSECUTOR RESARI: Q While you were walking on your way home, was there an unusual incident and can you recall? A Yes, ma'am Q What was that incident about? A While I was on my way towards the house of my parents, I just suddenly saw a person being beaten on the road. Q When you first noticed that there was a man being beaten along the road, how far were you? A I was about more or less 9 to 10 meters.

xxx xxx xxx Q When you saw a man being beaten what did you do? A I continue walking, but upon reaching that place near the person being beaten, I stopped.

Q Why did you stop? A To verify and know as to who that person being beaten.

PROSECUTOR: Q You stated that you saw the persons you have just named as beating Rolando Sevilla. Were there weapons used in beating Rolando Sevilla? A Yes. Q What kind of weapons (was) used? A Sotero was armed with bahi wood, and also Ramon. Bienvenido was also armed with bahi, as well as Cecilio Lunas, Jose Quinno were also armed with `malo-palo.'

xxx xxx xxx Q And who was that person being beaten? A Rolando Sevilla. Q Who were the persons beating Rolando Sevilla? A Marciano Regalario, Sotero Regalario, Ramon Regalario, Bienvenido Regalario, Noel Regalario, Ernani Regalario, Reynante Regalario, Jose Poblete, Jose Quinno and Virgilio Rebanal. Q Who else? A Cecilio Lunas. Q If some of the persons you saw beating Rolando Sevilla are present in this court room, will you be able to point and identify them? A Yes, ma'am.

xxx xxx xxx Q What kind of weapon was being held by Noel Regalario? A A knife.

xxx xxx xxx Q Now, when you saw Rolando Sevilla being beaten by the persons you mentioned before, what did you notice on the condition of Rolando Sevilla? A He was lying on his stomach.

xxx xxx xxx

Q Did you see the face of Rolando Sevilla? A Yes. Q How were you able to see the face of Rolando Sevilla? A Because Sotero was holding him by his hair. Q What was your observation on the condition of Rolando Sevilla?

Q What else did Marciano Regalario do if any? A After he boxed Rolando Sevilla, he went inside his house but after about one (1) minute he again return(ed) back. Q After Marciano Regalario returned back, what did he do if any? A He shouted to kill that. Q After you heard Marciano Regalario (say) to kill "that," what did you do? A I proceeded towards home. Q While you were walking, was there any unusual incident which again happened? A Yes. Q And, what was that incident? A While I was walking towards home, again I heard Marciano Regalario shouted to tie him, that is why I again stopped. Q When you heard Marciano Regalario to tie him how far were you from him? A More or less 7 meters.

xxx xxx xxx WITNESS:

He was already motionless. He is not moving anymore. PROSECUTOR:

Of the persons you named as holding weapons, you did not mention Marciano Regalario as holding any weapon. What was Marciano Regalario doing then? A He boxed Rolando Sevilla and Rolando was hit on his jaw.

Q You said that upon hearing Marciano Regalario, you stopped. What else happened? A Bienvenido Regalario passed by me and went to that sleigh (pababa) which is on the lower portion and got a rope. Q What did Bienvenido Regalario do with the rope? A He tied Rolando Sevilla by placing he rope around his neck and tied his hands. Q Was there somebody who assisted Bienvenido Regalario in tying Rolando Sevilla? A Yes. Q Who were the persons, if any? A Sotero Regalario. Q Aside from Sotero, was there anybody else who helped Bienvenido Regalario in tying Rolando Sevilla? A No more. Q While Rolando Sevilla was being hog tied, where were the persons of Marciano Regalario, Noel Regalario, Ramon Regalario and the rest of the

persons whom you just mentioned awhile ago? A They were there standing beside Rolando Sevilla and they were watching. Q Did you notice whether Rolando Sevilla was still moving when he was still being tied up by Bienvenido and Sotero? A He was not moving anymore.[20] The aforequoted testimony of Ronnie Siglos is corroborated by the following testimony of Armando Poblete: Q While you were standing by the road, what did you notice? A Then I saw Rolando Sevilla being chased by Bienvenido and Sotero both surnamed Regalario Q To what direction was Rolando Sevilla being chased by Sotero and Bienvenido Regalario? A Towards the place of Kapitan.

xxx xxx xxx PROSECUTOR RESARI: Q Considering that was already nighttime, how were you able to know that the person being chased was Rolando Sevilla and the persons chasing him were the two (2)

Regalarios which you have identified? A Because, I was with Sevilla during that time and it was moonlit night. Q When the two (2) were chasing Rolando Sevilla, what happened next? A Ramon waylaid Rolando Sevilla.

And where did Marciano and Noel xxx come from? A From their house. Q After the five (5) caught up with Rolando Sevilla, what happened to Rolando Sevilla? A They took turns in beating him. Q Did they use any weapon in beating Rolando Sevilla? A Yes, their night sticks. Q When Bienvenido and Sotero caught up with Rolando Sevilla; and the three (3) other accused also joined the two (2), how far was your distance to them? A More or less 14 to 15 meters.[21] We agree with the findings of the two courts below as to the presence of conspiracy. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Direct proof of conspiracy is rarely found, for criminals do not write down their lawless plans and plots. The agreement to commit a crime, however, may be deduced from the mode and manner of the commission of the offense or inferred from acts that point to a joint purpose and design, concerted action, and community of intent. It does not matter who inflicted the mortal wound, as the act of one is the act of all, and each incurs the same criminal liability.[22] We quote

xxx xxx xxx Q After you saw Ramon Regalario waylaid Rolando Sevilla, what else did you see? A After that I saw the group of Sotero, Regalario, Marciano, Noel, caught up with Rolando.

xxx xxx xxx PROSECUTOR RESARI: Q Since Bienvenido Regalario and Sotero Regalario were the ones chasing Rolando Sevilla, from what direction did Ramon Regalario come from when he waylaid Rolando Sevilla? A That side, left side going towards the house of Kapitan. Q

with approval the findings and observations of the CA, thus: The eyewitnesses' account surrounding Rolando Sevilla's death shows that the accused-appellants performed concerted acts in pursuit of a common objective. Sotero, Bienvenido, and Ramon, armed with nightsticks, and Noel armed with a knife, seven inches in length, beat Rolando Sevilla. All five accusedappellants caught up with the victim, blocked all means through which the victim could escape and ensured the achievement of their plan to kill Rolando Sevilla even as the latter already fell to the ground. Accusedappellant Marciano hit the victim on his jaw and later, ordered his coaccused to kill and tie the victim. Upon hearing Marciano's instruction, Bienvenido Regalario tied Rolando's neck, hands and feet with a rope. The collective act of the accused-appellants is sufficient to make them co-principals to the killing.[23] Considering the foregoing, as well as the manner in which the attack against Rolando was carried out, and the testimonies of the prosecution witnesses positively identifying the accused-appellants as the assailants, we concur in the rulings of the CA, affirming those of the trial court, in (a) disregarding Ramon Regalario's declaration that he attacked the victim in self-defense and (b) holding that all the accusedappellants acted in concert and killed Rolando. We likewise rule that both the CA and the trial court were correct in appreciating the qualifying circumstance of abuse of superior strength in killing Rolando Sevilla. To take advantage of superior strength is to use force out of

proportion to the means available to the person attacked to defend himself. In order to be appreciated, it must be clearly shown that there was deliberate intent on the part of the malefactors to take advantage thereof.[24] In this case, as testified to by the prosecution eyewitnesses, accused-appellants Ramon, Sotero and Bienvenido, with the exception of Marciano, were armed with nightsticks (bahi) while Noel was holding a knife. Clearly they took advantage of their superiority in number and arms in killing the victim, as shown by numerous wounds the latter suffered in different parts of his body. Also affirmed is the ruling of both courts appreciating the presence of the generic aggravating circumstance of scoffing at the body of the victim. Accused-appellants did not just kill the victim. They tied him hog-style after rendering him immobilized. This action constituted outraging or scoffing at the corpse of the victim. In this connection, we agree with the trial court's observation: ...The concerted acts committed by all the accused mostly armed with wooden clubs and one with a 7-inch long knife after the victim fell pummeling him with mortal blows on the forehead and back of his head and stab wounds on his neck and one of them telling his co-accused to kill the victim clearly proved that the Regalarios conspired and took advantage of their strength and number. Not satisfied with delivering mortal blows even when their hapless victim was already immobile, Bienvenido and Sotero, upon order of their co-accused Marciano, tied their victim hog style. The manner by which Rolando was

tied as vividly captured in the picture (Exhs. `C' & `D') clearly speaks for itself that it was nothing but to scoff at their victim.[25] The CA was likewise correct in not appreciating the mitigating circumstance of voluntary surrender in favor of accused-appellants. For said circumstance to be appreciated, it must be spontaneous, in such a manner that it shows the intent of the accused to surrender unconditionally to the authorities, either because he acknowledges his guilt or because he wishes to save them the trouble and expense of finding and capturing him.[26] In the case at bar, accused-appellants remained at large even after Judge Jose S. Saez issued the warrant for their arrest on February 6, 1998. Accused-appellants surrendered only on September 9, 1998 after several alias warrants of arrest were issued against them. Hence, voluntary surrender cannot be appreciated in their favor as mitigating circumstance. The accused-appellants' acts plainly amount to murder, qualified by abuse of superior strength. As the generic aggravating circumstance of scoffing at the body of the victim was alleged and proven, and as there was no mitigating circumstance, the CA correctly sentenced accusedappellants to death in accordance with Art. 248, as amended by Republic Act No. 7659, in relation to Art. 63(1) of the revised Penal Code. In view, however, of the passage of Republic Act No. 9346,[27] the imposition of the death penalty has been prohibited. Thus, the penalty imposed upon accused-appellants should be reduced to reclusion

perpetua, without eligibility for parole. While the new law prohibits the imposition of the death penalty, the penalty provided for by law for a heinous offense is still death and the offense is still heinous.[28] Consequently, the civil indemnity for the victim is still P75,000.00. In People v. Quiachon,[29] we explained that even if the penalty of death is not to be imposed on appellant because of the prohibition in Republic Act No. 9346, the civil indemnity of P75,000.00 is still proper because, following the ratiocination in People v. Victor (292 SCRA 186), the said award is not dependent on the actual imposition of the death penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense. As to the award of moral and exemplary damages, the CA correctly held accused-appellants jointly and severally liable to pay the heirs of Rolando Sevilla for the same. Moral damages are awarded despite the absence of proof of mental and emotional suffering of the victim's heirs. As borne out by human nature and experience, a violent death invariably and necessarily brings about emotional pain and anguish on the part of the victim's family.[30] If a crime is committed with an aggravating circumstance, either qualifying or generic, an award of exemplary damages is justified under Article 2230 of the New Civil Code. This kind of damage is intended to serve as deterrent to serious wrongdoings and as vindication of undue sufferings and wanton invasion of the rights of an

injured, or as a punishment for those guilty of outrageous conduct.[31] However, consistent with recent jurisprudence on heinous crimes where the imposable penalty is death but reduced to reclusion perpetua pursuant to Republic Act No. 9346, the award of moral damages should be increased from P50,000.00 to P75,000.00[32] while the award of exemplary damages should be increased from P25,000.00 to P30,000.00.[33] WHEREFORE, the decision of the Court of Appeals dated May 31, 2006 in CA-G.R. CR No. 01556 is hereby AFFIRMED with the following modifications: (1) the penalty of death imposed on accusedappellants is lowered to reclusion perpetua without eligibility for parole; (2) the monetary awards to be paid jointly and severally by accused-appellants are as follows: P75,000.00 as civil indemnity, P75,000.00 as moral damages and P30,000.00 as exemplary damages; and (3) interest on all the damages awarded at the legal rate of 6% from this date until fully paid is imposed.[34] SO ORDERED.

SECOND DIVISION [G.R. No. 158057, September 24, 2004] NOE TOLEDO Y TAMBOONG, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT. DECISION CALLEJO, SR., J.: This is a petition for review of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 23742 affirming on appeal, the Decision[2] of the Regional Trial Court (RTC) of Odiongan, Romblon, Branch 82, in Criminal Case No. OD-861, convicting the petitioner of homicide. In an Information filed in the RTC of Romblon, the petitioner was charged with homicide allegedly committed as follows: That on or about the 16th day of September 1995, at around 9:30 o clock in the evening, in Barangay Libertad, municipality of Odiongan, province of Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, did then and there, willfully, unlawfully and feloniously attack, assault and stab with a bolo, one RICKY F. GUARTE, which causes (sic) his untimely death. Contrary to law.[3] In due course, the prosecution adduced evidence against the petitioner which was synthesized by the appellate court as follows: On September 16, 1995, appellant went to a black-smith who made the design of his bolo. When he went

home to Tuburan, Odiongan, Romblon late in the afternoon (TSN, September 4, 1998, p. 2), appellant saw the group of Lani Famero, Michael Fosana, Rex Cortez and Ricky Guarte drinking gin at the house of the Spouses Manuel and Eliza Guarte, Ricky s parents. Appellant s house is about five (5) meters away from the house of Spouses Guarte. Appellant requested the group of Ricky to refrain from making any noise. Thereupon, appellant proceeded inside his house and went to sleep (ibid., p. 3). Around 9:00 p.m., Gerardo Faminia, Eliza Guarte s brother arrived at the Guarte house and asked for any left-over food (TSN, August 5, 1998, p. 3). Eliza prepared dinner for him and after Gerardo finished eating, he went home accompanied by Ricky (TSN, April 26, 1996, p. 5). Gerardo s home is about twelve (12) meters away from the Guarte home (TSN, February 17, 1997, p. 11). Minutes later, Ricky came back and together with Lani, Rex and Michael, went to sleep at the Guarte house. They had not laid down for long when they heard stones being hurled at the roof of the house. The stoning was made three (3) times (TSN, August 5, 1998, pp. 2-3). Ricky rose from bed and peeped through a window. He saw appellant stoning their house. Ricky went out of the house and proceeded to appellant s house. Ricky asked appellant, his uncle, why he was stoning their house. Appellant did not answer but met Ricky at the doorstep of his (appellant s) house (TSN, April 26, 1996, p. 6; August 5, 1998, pp. 4-5) and, without any warning, stabbed Ricky on the abdomen with a bolo (TSN, August 5, 1998, p. 8). Eliza had followed his son Ricky and upon seeing that

Ricky was stabbed, shouted for help (TSN, February 17, 1997, p. 13). Lani heard Eliza s cry for help and immediately rushed outside the house. Lani saw Ricky leaning on the ground and supporting his body with his hands. Lani helped Ricky stand up and brought him to the main road. Lani asked Ricky who stabbed him and Ricky replied that it was appellant who stabbed him. Then Docloy Cortez arrived at the scene on board his tricycle. Accordingly, Ricky was put on the tricycle and taken to the Romblon Provincial Hospital (TSN, January 19, 1998, pp. 4-6). At the Romblon Provincial Hospital, Dr. Noralie Fetalvero operated on Ricky that very night. Ricky had sustained one (1) stab wound but due to massive blood loss, he died while being operated on (TSN, November 24, 1997, pp. 2, 6-7). Dr. Fetalvero issued a Medico-Legal Certificate showing the injuries sustained by Ricky, thus: Stab wound, left chest with gastric & transverse colon evisceration measuring 6 cms. long, irregularedged at 8th ICS, left penetrating (operative findings): (1) abdominal cavity perforating the stomach (thru & thru) and the left lobe of the liver (2) thoracic cavity thru the left dome of the diaphragm perforating the lower lobe of the left lung. (Exhibit C) The Certificate of Death issued by Dr. Fetalvero stated the cause of Ricky s death as:

CAUSES OF DEATH: Immediate cause : a. Cardiorespiratory Arrest Antecedent cause : b. Hypovolemic shock Underlying cause : c. Multiple thoraco-abdominal injury 2 to stab wound (Exhibit B)[4] The Evidence of the Petitioner The petitioner adduced evidence that at around 5:00 p.m. on September 16, 1995, he was on his way home at Tuburan, Odiongan, Romblon. He saw his nephew, Ricky Guarte, and the latter s friends, Michael Fosana, Rex Cortez, and Lani Famero, about five meters away from his house, having a drinking spree. He ordered them not to make loud noises, and they obliged. He then went to his house, locked the door with a nail, and went to sleep. However, he was awakened at around 9:30 p.m. by loud noises coming from Ricky and his three companions. He peeped through the window grills of his house and admonished them not to make any loud noises. Ricky, who was then already inebriated, was incensed; he pulled out a balisong, pushed the door, and threatened to stab the petitioner. The petitioner pushed their sala set against the door to block the entry of Ricky, but the latter continued to push the door open with his hands and body. The petitioner ran to the upper portion of their house and got his bolo.[5] He returned to the door and pushed it with all his might using his left hand. He then pointed his bolo, which was in his right hand, towards Ricky. The bolo accidentally hit Ricky on the stomach, and the latter lost his balance and fell to the floor. The

petitioner, thereafter, surrendered to the barangay captain at 11:00 a.m. on September 17, 1995. After trial, the court rendered judgment finding the petitioner guilty as charged. The fallo of the decision reads: WHEREFORE, premises considered, NOE TOLEDO is hereby found GUILTY beyond reasonable doubt of homicide with the mitigating circumstance of voluntary surrender and is meted the indeterminate penalty of from six (6) years and one (1) day of prision mayor minimum, as minimum, to twelve (12) years and one (1) day of reclusion temporal minimum, as maximum. Accused is condemned to pay the amount of P50,000.00 as civil liability to the heirs of the victim.[6] The trial court did not give credence and probative weight to the testimony of the petitioner that his bolo accidentally hit the victim on the stomach. On appeal in the CA, the petitioner raised the following issue in his brief as appellant: WHETHER OR NOT ACCUSEDAPPELLANT CAN BE CRIMINALLY HELD LIABLE FOR THE ACCIDENTAL DEATH OF RICKY GUARTE[7] Invoking Article 12, paragraph 4 of the Revised Penal Code, the petitioner claimed that he stabbed the victim by accident; hence, he is exempt from criminal liability for the death of the victim. The CA rendered judgment affirming the assailed decision with modifications. The CA also denied the petitioner s motion for reconsideration thereof. The

appellate court ruled that the petitioner failed to prove that he acted in self-defense. Aggrieved, the petitioner filed the instant petition for review, contending that the CA erred in not finding that he acted in self-defense when he stabbed the victim by accident and prays that he be acquitted of the crime charged. The sole issue in this case is whether or not the petitioner is guilty beyond reasonable doubt of homicide based on the evidence on record. The petitioner contends that the CA committed a reversible error when it affirmed the decision of the RTC convicting him of homicide, on its finding that he failed to prove that he acted in complete self-defense when the victim was hit by his bolo. The petitioner insists that he acted in complete self-defense when his bolo accidentally hit the victim on the stomach. For its part, the Office of the Solicitor General asserts that the petitioner failed to prove self-defense with clear and convincing evidence. Hence, the decision of the CA affirming, on appeal, the decision of the RTC is correct. The contention of the petitioner has no merit. The petitioner testified that his bolo hit the victim accidentally. He asserted in the RTC and in the CA that he is exempt from criminal liability for the death of the victim under Article 12, paragraph 4 of the Revised Penal Code which reads: 4. Any person who, while performing a lawful act with due

care, causes an injury by mere accident without fault or intention of causing it. In his brief in the CA, the petitioner argued that: In the case at bar, with all due respect, contrary to the findings of the lower court, it is our humble submission that the death of Ricky Guarte was merely a sad and unwanted result of an accident without fault or intention of causing it on the part of accused-appellant. We submit, there were clear and indubitable factual indicators overlooked by the lower court, bolstering the theory of the defense on accidental death.[8] However, the petitioner changed gear, so to speak, and now alleges that he acted in self-defense when he stabbed the victim. As such, he contends, he is not criminally liable under Article 11, paragraph 1 of the Revised Penal Code which reads: Art. 11. Justifying circumstances. The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur: First. Unlawful aggression; Second. Reasonable necessity of the means employed to prevent or repel it: Third. Lack of sufficient provocation on the part of the person defending himself. The petitioner avers that he was able to prove the essential elements of complete self-defense, thus: A close scrutiny of the records of the case would show that the petitioner acted in self-defense.

The essential requisites of selfdefense are: (1) unlawful aggression on the part of the victim; (2) reasonable scrutiny of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself (People vs. Silvano, 350 SCRA 650)[9] However, the petitioner also claims that his bolo accidentally hit the stomach of the victim. It is a matter of law that when a party adopts a particular theory and the case is tried and decided upon that theory in the court below, he will not be permitted to change his theory on appeal. The case will be reviewed and decided on that theory and not approached and resolved from a different point of view. To permit a party to change his theory on appeal will be unfair to the adverse party.[10] The petitioner is proscribed from changing in this Court, his theory of defense which he adopted in the trial court and foisted in the CA by claiming that he stabbed and killed the victim in complete self-defense. The petitioner relied on Article 12, paragraph 4 of the Revised Penal Code in the trial and appellate courts, but adopted in this Court two divergent theories (1) that he killed the victim to defend himself against his unlawful aggression; hence, is justified under Article 11, paragraph 1 of the Revised Penal Code; (2) that his bolo accidentally hit the victim and is, thus, exempt from criminal liability under Article 12, paragraph 4 of the Revised Penal Code. It is an aberration for the petitioner to invoke the two defenses at the

same time because the said defenses are intrinsically antithetical.[11] There is no such defense as accidental self-defense in the realm of criminal law. Self-defense under Article 11, paragraph 1 of the Revised Penal Code necessarily implies a deliberate and positive overt act of the accused to prevent or repel an unlawful aggression of another with the use of reasonable means. The accused has freedom of action. He is aware of the consequences of his deliberate acts. The defense is based on necessity which is the supreme and irresistible master of men of all human affairs, and of the law. From necessity, and limited by it, proceeds the right of self-defense. The right begins when necessity does, and ends where it ends.[12] Although the accused, in fact, injures or kills the victim, however, his act is in accordance with law so much so that the accused is deemed not to have transgressed the law and is free from both criminal and civil liabilities.[13] On the other hand, the basis of exempting circumstances under Article 12 of the Revised Penal Code is the complete absence of intelligence, freedom of action, or intent, or the absence of negligence on the part of the accused.[14] The basis of the exemption in Article 12, paragraph 4 of the Revised Penal Code is lack of negligence and intent. The accused does not commit either an intentional or culpable felony. The accused commits a crime but there is no criminal liability because of the complete absence of any of the conditions which constitute free will or voluntariness of the act.[15] An accident is a fortuitous circumstance, event or happening; an event happening wholly or partly

through human agency, an event which under the circumstances is unusual or unexpected by the person to whom it happens.[16] Self-defense, under Article 11, paragraph 1, and accident, under Article 12, paragraph 4 of the Revised Penal Code, are affirmative defenses which the accused is burdened to prove, with clear and convincing evidence. Such affirmative defenses involve questions of facts adduced to the trial and appellate courts for resolution. By admitting killing the victim in self-defense or by accident without fault or without intention of causing it, the burden is shifted to the accused to prove such affirmative defenses. He should rely on the strength of his own evidence and not on the weakness of that of the prosecution. If the accused fails to prove his affirmative defense, he can no longer be acquitted. The petitioner failed to prove that the victim was killed by accident, without fault or intention on his part to cause it. The petitioner was burdened to prove with clear and convincing evidence, the essential requisites for the exempting circumstance under Article 12, paragraph 4, viz: 1. A person is performing a lawful act; 2. With due care; 3. He causes an injury to another by mere accident; 4. Without fault or intention of causing it. To prove his affirmative defense, the petitioner relied solely on his testimony, thus: Q

What happened next when Ricky Guarte was able to push through the door and you ran away? A When Ricky Guarte was able to push the door, that is the time I go (sic) downstairs and got my bolo and at that time the body of Ricky Guarte was at the entrance of the door and accidentally the bolo reached him. Q Where did you get the bolo? A I got the bolo in the post or wall of our house. Q Was Ricky Guarte hit the first time you boloed him? A Not hacking but accidentally. Q What do you mean by accidentally? A Because when Ricky Guarte pushed the door and unbalance himself (sic) the bolo which I was carrying hit him accidentally. Q Where was he hit by the bolo you were carrying? A In the stomach.[17]

And since you were at the left side of the door, your right hand was at the center part of the door, correct? A No, Sir. Q Where was your right hand? A Holding a bolo. Q Where, in what part of the door? A Right side. Q When Ricky Guarte was pushing the door, the door was not opened? A It was opened. Q It was opened because you opened the door, correct? A No, Sir. Q Now, why was it opened? A Because he was pushing it. Q With his left hand? A With his both hands and body. Q Now, when he fell down because, according to you, he losses (sic) his

balance, the left side of the body was the first to fell (sic) down, correct? A Yes, Sir. Q You are sure of your answer now Mr. Toledo? A Yes, Sir. Q Now, and while holding that bolo, you are doing that in [an] upward position, correct? A No, Sir, pointing the door. Q Yes, you are pointing the tip of your bolo to the door upward, correct? A No, Sir, steady pointing to the door. Q Now, when the door was opened, your bolo did not hit any part of that door, correct? A Ginaiwas ko ang sunrang,  meaning I was able to get away from hitting any part of the door. Q The question Mr. Toledo is simple, while the door was opened and while you were pointing directly your bolo at the door, not any part of the door hit the bolo (sic), correct? ATTY. FORMILLEZA:

It was a valid answer, it did not hit any part of the door. COURT: Answer. A No, Sir. PROS. FRADEJAS continuing: Q You were only about five inches away from your door while pushing it, correct? A Yes, Sir. Q Now, when the door was pushed already by Ricky Guarte, not any part of your body hit the door, correct? A No, Sir.[18] The petitioner also testified that the victim was armed with a balisong and threatened to kill him as the said victim pushed, with his body and hands, the fragile door of his house: Q Where were you when you saw Ricky went out? A I was at the door. Q Did Ricky proceed to the door where you were? A Yes, Sir. Q What did he do, if any? A

He drew his fan knife or balisong and asked me what do you like, I will stab you? Q What did you do? A I told him I have not done you anything wrong, I am only scolding you or telling you not to make noise. Q What, if any, did Ricky Guarte do to you? A He pushed the door. Q Whose door did he push? A My own door. Q Where were you when he pushed the door? A Inside our house.[19] We find the testimony of the petitioner incredible and barren of probative weight. First. If the testimony of the petitioner is to be believed, the force of the struggle between him and the victim would have caused the door to fall on the petitioner. However, the petitioner failed to adduce real evidence that the door of his house was destroyed and that he sustained any physical injuries,[20] considering that he was only five inches away from the door. Second. If the door fell to the sala of the house of the petitioner, the

victim must have fallen on top of the door. It is incredible that the bolo of the petitioner could have hit the stomach of the victim. The claim of the petitioner that he managed to step aside and avoid being crushed by the door belies his claim that the bolo accidentally hit the victim on the stomach. Third. When he surrendered to the barangay captain and to the policemen, he failed to relate to them that his bolo accidentally hit the stomach of the victim: Q Now, that very night when you said Ricky Guarte was accidentally hit by your bolo, you did not surrender to the police, correct? A I surrendered to the barangay captain at one o clock in Panique, in the afternoon. Q Now, you only surrendered to the police when a certain person advised you to surrender, correct? A On my own volition, I surrendered to the barangay captain. Q You did not narrate the incident to the barangay captain whom you have surrendered, correct? A No, Sir. Q When you were brought to the municipal jail, you did not also narrate to the police what happened, correct? A

No, Sir. Q You just remained silent thinking of an excuse that happened that evening of September 16, 1995, correct? A No, Sir.[21] Fourth. There is no evidence that the petitioner surrendered either the bolo that accidentally hit the victim or the balisong held by the deceased to the barangay captain or the police authorities. Such failure of the petitioner negates his claim that his bolo accidentally hit the stomach of the victim and that he acted in selfdefense.[22] Fifth. To prove self-defense, the petitioner was burdened to prove the essential elements thereof, namely: (1) unlawful aggression on the part of the victim; (2) lack of sufficient provocation on the part of the petitioner; (3) employment by him of reasonable means to prevent or repel the aggression. Unlawful aggression is a condition sine qua non for the justifying circumstances of self-defense, whether complete or incomplete.[23] Unlawful aggression presupposes an actual, sudden, and unexpected attack, or imminent danger thereof, and not merely a threatening or intimidating attitude.[24] We agree with the ruling of the CA that the petitioner failed to prove self-defense, whether complete or incomplete: The evidence on record revealed that there is no unlawful aggression on the part of Ricky. While it was established that Ricky was stabbed at the doorstep of appellant s house which would give a semblance of verity to appellant s version of

the incident, such view, however, is belied by the fact that Ricky arrived at appellant s house unarmed and had only one purpose in mind, that is, to ask appellant why he threw stones at his (Ricky s) house. With no weapon to attack appellant, or defend himself, no sign of hostility may be deduced from Ricky s arrival at appellant s doorstep. Ricky was not threatening to attack nor in any manner did he manifest any aggressive act that may have imperiled appellant s wellbeing. Ricky s want of any weapon when he arrived at appellant s doorstep is supported by the fact that only one weapon was presented in court, and that weapon was the bolo belonging to appellant which he used in stabbing Ricky. Thus, appellant s version of the events does not support a finding of unlawful aggression. In People vs. Pletado, the Supreme Court held: xxx (F) or aggression to be appreciated, there must be an actual, sudden, [un]expected attack or imminent danger thereof, and not merely a threatening or intimidating attitude (People vs. Pasco, Jr., supra, People vs. Rey, 172 SCRA 149 [1989]) and the accused must present proof of positively strong act of real aggression (Pacificar vs. Court of Appeals, 125 SCRA 716 [1983]). Unlawful aggression must be such as to put in real peril the life or personal safety of the person defending himself or of a relative sought to be defended and not an imagined threat.  Appellant was not justified in stabbing Ricky. There was no imminent threat to appellant s life necessitating his assault on Ricky. Unlawful aggression is a condition sine qua non for the

justifying circumstance of selfdefense. For unlawful aggression to be appreciated, there must be an actual, sudden, unexpected attack or imminent danger thereof, not merely a threatening or intimidating attitude. In the absence of such element, appellant s claim of selfdefense must fail. Further, appellant s plea of selfdefense is not corroborated by competent evidence. The plea of self-defense cannot be justifiably entertained where it is not only uncorroborated by any separate competent evidence but is in itself extremely doubtful.[25] Sixth. With the failure of the petitioner to prove self-defense, the inescapable conclusion is that he is guilty of homicide as found by the trial court and the CA. He cannot even invoke Article 12, paragraph 4 of the Revised Penal Code.[26] IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision of the Court of Appeals is AFFIRMED. Costs against the petitioner. SO ORDERED.

EN BANC [G.R. No. 169641, September 10, 2009] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RICHARD O. SARCIA, ACCUSED-APPELLANT. DECISION LEONARDO-DE CASTRO, J.: On automatic review is the decision[1] dated My 14, 2005 of the Court of Appeals (CA) in CA-G.R. CRHC No. 00717 which affirmed, with modifications, an earlier decision[2] of the Regional Trial Court (RTC) of Ligao City, Branch 13, in Criminal Case No. 4134, finding herein accused-appellant Richard O. Sarcia alias "Nogi" guilty beyond reasonable doubt of the crime of rape[3] committed against AAA,[4] and sentenced him to suffer the penalty of Reclusion Perpetua and to pay the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and the cost of the suit. However, the CA modified the penalties imposed by the RTC by imposing the death penalty, increasing the award of civil indemnity to P75,000.00, and awarding P25,000.00 as exemplary damages, aside from the P50,000.00 for moral damages. The crime of rape was allegedly committed sometime in 1996 against AAA, a five (5) year old girl. After almost four (4) years, AAA's father filed a complaint[5] for acts of lasciviousness against herein accused-appellant on July 7, 2000. Upon review of the evidence, the Office of the Provincial Prosecutor at Ligao, Albay upgraded the charge to

rape.[6] The Information[7] dated September 5, 2000 reads: That sometime in 1996 at Barangay Doa Tomasa, Municipality of Guinobatan, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design, and by means of force, threats and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with [AAA], who was then 6 years of age, against her will and consent, to her damage and prejudice. ACTS CONTRARY TO LAW. At his arraignment on October 25, 2000, accused-appellant, with the assistance of his counsel, entered a plea of not guilty.[8] Thereafter, trial on the merits ensued. The prosecution presented the oral testimonies of the victim AAA; her minor cousin; her father; and Dr. Joana Manatlao, the Municipal Health Officer of Guinobatan, Albay. The defense presented the accusedappellant himself, who vehemently denied committing the crimes imputed to him and Manuel Casimiro, Clerk of Court II of the Municipal Trial Court at Guinobatan, Albay. On January 17, 2003, the trial court rendered its Decision[9] finding the accused-appellant guilty of the crime of rape and imposed the penalty mentioned above. The record of this case was forwarded to this Court in view of the Notice of Appeal filed by the accused- appellant.[10]

Accused-appellant filed his Appellant's Brief[11] on July 15, 2004, while the People, through the Office of the Solicitor General, filed its Appellee's Brief[12] on December 15, 2004. Pursuant to our pronouncement in People v. Mateo,[13] modifying the pertinent provisions of the Revised Rules on Criminal Procedure insofar as they provide for direct appeals from the RTC to this Court in cases in which the penalty imposed by the trial court is death, reclusion perpetua or life imprisonment, and the Resolution dated September 19, 1995 in "Internal Rules of the Supreme Court," the case was transferred, for appropriate action and disposition, to the CA where it was docketed as CA-G.R. CR-H.C. No. 00717. As stated at the beginning hereof, the CA, in its decision of July 14, 2005, in CA-G.R. CR-H.C. No. 000717, affirmed with modification the judgment of conviction pronounced by the trial court. We quote the fallo of the CA decision: WHEREFORE, the judgment of conviction is AFFIRMED. The accused, Richard Sarcia y Olivera, is ordered to suffer the penalty of DEATH, and to pay the victim, [AAA], the amount of (1) P75,000.00 as civil indemnity; (2) P50,000.00 as moral damages, and (3) P25,000.00 as exemplary damages. Let the entire records of this case be elevated to the Supreme Court for review, pursuant to A.M. No. 00-503-SC (Amendments to the Revised Rules of Criminal Procedure to

Govern Death Penalty Cases), which took effect on October 15, 2004. SO ORDERED. On September 30, 2005, the case was elevated to this Court for further review.[14] In our Resolution[15] of November 15, 2005, we required the parties to simultaneously submit their respective supplemental briefs. Accused- appellant filed his Supplemental Brief[16] on April 7, 2006. Having failed to submit one, the Office of the Solicitor General (OSG) was deemed to have waived the filing of its supplemental brief. In his Brief filed before the CA, accused-appellant raised the following assignment of errors: I THE LOWER COURT GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF [AAA], [her cousin] and [her father]. II THE LOWER COURT GLARINGLY ERRED IN REJECTING THE DEFENSE OF ALIBI INTERPOSED BY THE ACCUSED WHICH IS MORE CREDIBLE. III THE LOWER COURT GRAVELY ERRED IN NOT ACQUITTING THE ACCUSED RICHARD SARCIA The evidence for the prosecution is summarized by the OSG in the Appellee's Brief, as follows:

On December 16, 1996, five-year-old [AAA], together with her [cousin and two other playmates], was playing in the yard of Saling Crisologo near a mango tree. Suddenly, appellant appeared and invited [AAA] to go with him to the backyard of Saling Crisologo's house. She agreed. Unknown to appellant, [AAA's cousin] followed them. Upon reaching the place, appellant removed [AAA's] shorts and underwear. He also removed his trousers and brief. Thereafter, he ordered [AAA] to lie down on her back. Then, he lay on top of her and inserted his penis into [AAA's] private organ. Appellant made an up-and-down movement ("Nagdapadapa tabi"). [AAA] felt severe pain inside her private part and said "aray." She also felt an intense pain inside her stomach. [AAA's cousin], who positioned herself around five (5) meters away from them, witnessed appellant's dastardly act. Horrified, [AAA's cousin] instinctively rushed to the house of [AAA's] mother, her aunt Emily, and told the latter what she had seen. [AAA's] mother answered that they (referring to {AAA and her cousin} were still very young to be talking about such matters. Meanwhile, after satisfying his lust, appellant stood up and ordered [AAA] to put on her clothes. Appellant then left. Perplexed, [AAA's cousin] immediately returned to the backyard of Saling Crisologo where she found [AAA] crying. Appellant, however, was gone. [AAA's cousin] approached [AAA] and asked her

what appellant had done to her. When [AAA] did not answer, [her cousin] did not ask her any further question and just accompanied her home. At home, [AAA] did not tell her mother what appellant had done to her because she feared that her mother might slap her. Later, when her mother washed her body, she felt a grating sensation in her private part. Thereafter, [AAA] called for [her cousin]. [AAA's cousin] came to their house and told [AAA's] mother again that appellant had earlier made an up-and-down movement on top of [AAA]. [AAA's mother], however did not say anything. At that time, [AAA's] father was working in Manila. Dr. Joana Manatloa is the Municipal Health Officer of Guinobatan, Albay. She testified that: (1) it was the rural health officer, Dr. Reantaso, who conducted a physical examination on [AAA]; (2) Dr. Reantaso prepared and signed a medico-legal certificate containing the result of [AAAj's examination; (3) Dr. Reantaso, however, had already resigned as rural health officer of Guinobatan, Albay; (4) as a medical doctor, she can interpret, the findings in said medico-legal certificate issued to [AAA]; (5) [AAA]'s medical findings are as follows: "negative for introital vulvar laceration nor scars, perforated hymen, complete, pinkish vaginal mucosa, vaginal admits little finger with resistance; (6) the finding "negative for introital bulvar laceration nor scars" means, in layman's language, that there was no showing of any scar or wound, and (7) there is a complete perforation of the hymen which means that it could have been subjected to a certain

trauma or pressure such as strenuous exercise or the entry of an object like a medical instrument or penis.[17] On the other hand, the trial court summarized the version of the defense as follows: Richard Sarcia, 24 years old, single, student and a resident of Dona Tomasa, Guinobatan, Albay denied he raped [AAA]. While he knows [AAA's] parents, because sometimes they go to their house looking for his father to borrow money, he does not know [AAA] herself. His father retired as a fireman from Crispa in 1991 while his mother worked as an agriculturist in the Municipality of Teresa, Antipolo, Rizal. As an agriculturist of the Department of Agriculture, his mother would bring seedlings and attend seminars in Batangas and Baguio. They were residing in Cainta, Rizal when sometime in 1992 they transferred residence to Guinobatan, Albay. His father is from barangay Masarawag while his mother is from barangay Dona Tomasa both of Guinobatan, Albay. After their transfer in Guinobatan, his mother continued to be an agriculturist while his father tended to his 1-hectare coconut land. Richard testified he was between fourteen (14) and fifteen (15) years old in 1992 when they transferred to Guinobatan. Between 1992 and 1994 he was out of school. But from 1994 to 1998 he took his high school at Masarawag High School. His daily routine was at about 4:00 o'clock in the afternoon after school before proceeding home he would usually play basketball at the basketball court near the church in Dona Tomasa about 1 kilometer away from their house. When her mother

suffered a stroke in 1999 he and his father took turns taking care of his mother. Richard denied molesting other girls ... and was most surprised when he Vas accused of raping [AAA]. He knows Saling Crisologo and the latter's place which is more than half kilometer to their house. Richard claimed Salvacion Bobier, grandmother of Mae Christine Camu, whose death on May 7, 2000 was imputed to him and for which a case for Murder under Criminal Case No. 4087 was filed against him with the docile cooperation of [AAA's] parents who are related to Salvacion, concocted and instigated [AAA's] rape charge against him to make the case for Murder against him stronger and life for him miserable. He was incarcerated on May 10, 2000 for the Murder charge and two (2) months later while he already in detention, the rape case supposedly committed in 1996 was filed against him in the Municipal Trial Court (MTC) of Guinobatan, Albay. He was to learn about it from his sister, Marivic, on a Sunday afternoon sometime on July 20, 2000 when his sister visited him in jail. He naturally got angry when he heard of this rape charge because he did not do such thing and recalled CA Record, pp. 77105. telling his sister they can go to a doctor and have the child examine to prove he did not rape her. Subsequently, from his sister again he was to learn that the rape case was ordered dismissed. On cross-examination, Richard admitted [AAA's] mother, is also related to his father, [AAA mother's] father, being a second cousin of his father. Richard is convinced it is not the lending of money by his father to the AAA's family as the motive for the latter to file the rape case against

him but the instigation of Saivacion Bobier. Manuel A. Casimiro, Clerk of Court II of the Municipal Trial Court (MTC), Guinobatan, Albay, testified on the records of Criminal Case No. 7078 filed in MTC Guinobatan, Albay against Richard Sarcia for Rape in relation to RA 7610 relative to the alleged withdrawal of said rape case but the accused through counsel failed to formally offer the marked exhibits relative to said case.[18] Accused-appellant alleges that the trial court erred in convicting him, as the prosecution was not able to prove his guilt beyond reasonable doubt. He assailed the credibility of the prosecution witnesses, AAA, her cousin and her father on the following grounds: (1) the testimonies of AAA and her cousin were inconsistent with each other; (2) the victim was confused as to the date and time of the commission of the offense; (3) there was a fouryear delay in filing the criminal case, and the only reason why they filed the said case was "to help Saivacion Bobier get a conviction of this same accused in a murder case filed by said Saivacion Bobier for the death of her granddaughter Mae Christine Camu on May 7, 2000." Accusedappellant stressed that the same Saivacion Bobier helped AAA's father in fding the said case for rape. Accused-appellant also claimed that the prosecution failed to prove that he employed force, threats or intimidation to achieve his end. Finally, accused-appellant harped on the finding in the medical certificate issued by Dr. Reantaso and interpreted by Dr. Joana Manatlao, stating "negative for introital bulvar laceration nor scar which means that

there was no showing of any scar or wound." In his Appellee's Brief accusedappellant pointed out the inconsistencies between AAA's and her cousin's testimonies as follows: (1) the cousin testified that she played with AAA at the time of the incident, while AAA testified that she was doing nothing before accusedappellant invited her to the back of the house of a certain Saling; (2) the cousin testified that when she saw accused-appellant doing the pushand-pull motion while on top of AAA, the latter shouted in a loud voice contrary to AAA's testimony that when accused-appellant was inside her and started the up-and-down motion, she said "aray"; (3) when the cousin returned to AAA after telling the latter's mother what accused-appellant had done to AAA, she found AAA crying. AAA however testified that, after putting on her clothes, she invited the cousin to their house; and (4) the cousin testified that other children were playing at the time of the incident, but AAA testified that there were only four of them who were playing at that time. As it is oft-repeated, inconsistencies in the testimonies of witnesses, which refer only to minor details and collateral matters, do not affect the veracity and weight of their testimonies where there is consistency in relating the principal occurrence and the positive identification of the accused. Slight contradictions in fact even serve to strengthen the credibility of the witnesses and prove that their testimonies are not rehearsed. Nor are such inconsistencies, and even improbabilities, unusual, for there is

no person with perfect faculties or senses.[19] The alleged inconsistencies in this case are too inconsequential to overturn the findings of the court a quo. It is important that the two prosecution witnesses were one in saying that it was accused-appellant who sexually abused AAA. Their positive, candid and straightforward narrations of how AAA was sexually abused by accused- appellant evidently deserve full faith and credence. When the rape incident happened, AAA was only five (5) years old; and when she and her cousin testified, they were barely 9 and 11 years old, respectively. This Court has had occasion to rule that the alleged inconsistencies in the testimonies of the witnesses can be explained by their age and their inexperience with court proceedings, and that even the most candid of witnesses commit mistakes and make confused and inconsistent statements. This is especially true of young witnesses, who could be overwhelmed by the atmosphere of the courtroom. Hence, there is more reason to accord them ample space for inaccuracy.[20] Accused-appellant capitalizes on AAA's inability to recall the exact date when the incident in 1996 was committed. Failure to recall the exact date of the crime, however, is not an indication of false testimony, for even discrepancies regarding exact dates of rapes are inconsequential and immaterial and cannot discredit the credibility of the victim as a witness.[21] In People v. Purazo,[22] We ruled: We have ruled, time and again that the date is not an essential element of the crime of rape, for the

gravamen of the offense is carnal knowledge of a woman. As such, the time or place of commission in rape cases need not be accurately stated. As early as 1908, we already held that where the time or place or any other fact alleged is not an essential element of the crime charged, conviction may be had on proof of the commission of the crime, even if it appears that the crime was not committed at the precise time or place alleged, or if the proof fails to sustain the existence of some immaterial fact set out in the complaint, provided it appears that the specific crime charged was in fact committed prior to the date of the filing of the complaint or information within the period of the statute of limitations and at a place within the jurisdiction of the court. Also in People v. Salalima,[23] the Court held: Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the information defective on its face. The reason is obvious. The precise date or time when the victim was raped is not an element of the offense. The gravamen of the crime is the fact of carnal knowledge under any of the circumstances enumerated under Article 335 of the Revised Penal Code. As long as it is alleged that the offense was committed at any time as near to the actual date when the offense was committed an information is sufficient. In previous cases, we ruled that allegations that rapes were committed "before and until October 15, 1994" ''sometime in the year 1991 and the days thereafter" "sometime in November 1995 and some occasions prior and/or subsequent thereto'" and "on

or about and sometime in the year 1988" constitute sufficient compliance with Section 11, Rule 110 of the Revised Rules on Criminal Procedure. In this case, AAA's declaration that the rape incident took place on December 15, 1996 was explained by the trial court, and we quote: The rape took place in 1996. As earlier noted by the Court the date December 15, 1996 mentioned by [AAA] may have been arbitrarily chosen by the latter due to the intense cross-examination she was subjected but the Court believes it could have been in any month and date in the year 1996 as in fact neither the information nor [AAA's] sworn statement mention the month and date but only the year.[24] Likewise, witnesses' credibility is not affected by the delay in the filing of the case against accusedappellant. Neither does the delay bolster accused-appellant's claim that the only reason why this case was filed against him was "to help Salvacion Bobier get a conviction of this same accused-appellant in the case of murder filed by Salvacion Bobier for the death of her granddaughter Mae Christine Camu on May 7, 2000." The rape victim's delay or hesitation in reporting the crime does not destroy the truth of the charge nor is it an indication of deceit. It is common for a rape victim to prefer silence for fear of her aggressor and the lack of courage to face the public stigma of having been sexually abused. In People v. Coloma[25] we even considered an 8-year delay in reporting the long history of rape by

the victim's father as understandable and not enough to render incredible the complaint of a 13-year-old daughter. Thus, in the absence of other circumstances that show that the charge was a mere concoction and impelled by some ill motive, delay in the filing of the complainant is not sufficient to defeat the charge. Here, the failure of AAA's parents to immediately file this case was sufficiently justified by the complainant's father in the latter's testimony, thus: Q But, did you not say, please correct me if I am wrong, you got angry when your wife told you that something happened to Hazel way back in 1996? A Yes, sir. Q Yet, despite your anger you were telling us that you waited until June to file this case? A After I heard about the incident, I and my wife had a talk for which reason that during that time we had no money yet to use in filing the case, so we waited. When we were able to save enough amounts, we filed the case.[26] Accused-appellant also contends that he could not be liable for rape because there is no proof that he employed force, threats or intimidation in having carnal knowledge of AAA. Where the girl is below 12 years old, as in this case, the only subject of inquiry is whether "carnal knowledge" took place. Proof of force, intimidation or consent is unnecessary, since none of these is an element of statutory

rape. There is a conclusive presumption of absence of free consent when the rape victim is below the age of twelve.[27] Accused-appellant harps on the medical report, particularly the conclusion quoted as follows: "negative for introital bulvar laceration nor scars, which means, in layman language, that there was no showing of any scar or wound." The Court has consistently ruled that the presence of lacerations in the victim's sexual organ is not necessary to prove the crime of rape and its absence does not negate the fact of rape. A medical report is not indispensable in a prosecution for rape.[28] What is important is that AAA's testimony meets the test of credibility, and that is sufficient to convict the accused. Accused-appellant's defense of denial was properly rejected. Time and time again, we have ruled that denial like alibi is the weakest of all defenses, because it is easy to concoct and difficult to disprove. Furthermore, it cannot prevail over the positive and unequivocal identification of appellant by the offended party and other witnesses. Categorical and consistent positive identification, absent any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over the appellants' defense of denial and alibi.[29] The shallow hypothesis put forward by accusedappellant that he was accused of raping AAA due to the instigation of Salvacion Bobier hardly convinces this Court. On this score, the trial court aptly reached the following conclusion:

...True, Salvacion Bobier actively assisted AAA's family file the instant case against the accused, but the Court believes [AAA's] parents finally decided to file the rape case because after they have come to realize after what happened to Mae Christine Camu that what previously [AAA and her cousin] told her mother and which the latter had continually ignored is after all true. AAA was barely 9 years of age when she testified. It has been stressed often enough that the testimony of rape victims who are young and immature deserve full credence. It is improbable for a girl of complainant's age to fabricate a charge so humiliating to herself and her family had she not been truly subjected to the painful experience of sexual abuse. At any rate, a girl of tender years, innocent and guileless, cannot be expected to brazenly impute a crime so serious as rape to any man if it were not true.[30] Parents would not sacrifice their own daughter, a child of tender years at that, and subject her to the rigors and humiliation of public trial for rape, if they were not motivated by an honest desire to have their daughter's transgressor punished accordingly.[31] Hence, the logical conclusion is that no such improper motive exists and that her testimony is worthy of full faith and credence. The guilt of accused-appellant having been established beyond reasonable doubt, we discuss now the proper penalty to be imposed on him. Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659,[32] was the governing law at the time the accused-appellant

committed the rape in question. Under the said law, the penalty of death shall be imposed when the victim of rape is a child below seven years of age. In this case, as the age of AAA, who was five (5) years old at the time the rape was committed, was alleged in the information and proven during trial by the presentation of her birth certificate, which showed her date of birth as January 16, 1991, the death penalty should be imposed. However, this Court finds ground for modifying the penalty imposed by the CA. We cannot agree with the CA's conclusion that the accusedappellant cannot be deemed a minor at the time of the commission of the offense to entitle him to the privileged mitigating circumstance of minority pursuant to Article 68(2)[33] of the Revised Penal Code. When accused appellant testified on March 14, 2002, he admitted that he was 24 years old, which means that in 1996, he was 18 years of age. As found by the trial court, the rape incident could have taken place "in any month and date in the year 1996." Since the prosecution was not able to prove the exact date and time when the rape was committed, it is not certain that the crime of rape was committed on or after he reached 18 years of age in 1996. In assessing the attendance of the mitigating circumstance of minority, all doubts should be resolved in favor of the accused, it being more beneficial to the latter. In fact, in several cases, this Court has appreciated this circumstance on the basis of a lone declaration of the accused regarding his age.[34] Under Article 68 of the Revised Penal Code, when the offender is a

minor under 18 years, the penalty next lower than that prescribed by law shall be imposed, but always in the proper period. However, for purposes of determining the proper penalty because of the privileged mitigating circumstance of minority, the penalty of death is still the penalty to be reckoned with.[35] Thus, the proper imposable penalty for the accused- appellant is reclusion perpetua. It is noted that the Court is granted discretion in awarding damages provided in the Civil Code, in case a crime is committed. Specifically, Article 2204 of the Civil Code provides that "in crimes, the damages to be adjudicated may be respectively increased or lessened according to the aggravating or mitigating circumstances." The issue now is whether the award of damages should be reduced in view of the presence here of the privileged mitigating circumstance of minority of the accused at the time of the commission of the offense. A review of the nature and purpose of the damages imposed on the convicted offender is in order. Article 107 of the Revised Penal Code defines the term "indemnification," which is included in the civil liability prescribed by Article 104 of the same Code, as follows: Art. 107. Indemnification-What is included. Indemnification for consequential damages shall include not only those caused the injured party, but also those suffered by his family or by a third person by reason of the crime.

Relative to civil indemnity, People v. Victor[36] ratiocinated as follows: The lower court, however, erred in categorizing the award of P50,000.00 to the offended party as being in the nature of moral damages. We have heretofore explained in People v. Gementiza that the indemnity authorized by our criminal law as civil liability ex delicto for the offended party, in the amount authorized by the prevailing judicial policy and aside from other proven actual damages, is itself equivalent to actual or compensatory damages in civil law. It is not to be considered as moral damages thereunder, the latter being based on different jural foundations and assessed by the court in the exercise of sound discretion. One other point of concern has to be addressed. Indictments for rape continue unabated and the legislative response has been in the form of higher penalties. The Court believes that, on like considerations, the jurisprudenttal path on the civil aspect should follow the same direction. Hence, starting with the case at bar, if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the present amended law, the indemnity for the victim shall be in the increased amount of not Jess than P75.000.00. This is not only a reaction to the apathetic societal perception of the penal law, and the financial fluctuations over time, but also an expression of the displeasure of the Court over the incidence of heinous crimes against chastity. (Emphasis Supplied)

The Court has had the occasion to rule that moral damages are likewise compensatory in nature. In San Andres v. Court of Appeals,[37] we held: xxx Moral damages, though incapable of pecuniary estimation. are in the category of an award designed to compensate the claimant for actual injury suffered and not to impose a penalty on the wrongdoer. (Emphasis Supplied) In another case, this Court also explained: What we call moral damages are treated in American jurisprudence as compensatory damages awarded for mental pain and suffering or mental anguish resulting from a wrong (25 C.J.S. 815).[38] (Emphasis Supplied) Thus, according to law and jurisprudence, civil indemnity is in the nature of actual and compensatory damages for the injury caused to the offended party and that suffered by her family, and moral damages are likewise compensatory in nature. The fact of minority of the offender at the time of the commission of the offense has no bearing on the gravity and extent of injury caused to the victim and her family, particularly considering the circumstances attending this case. Here, the accused-appelant could have been eighteen at the time of the commission of the rape. He was accorded the benefit of the privileged mitigating circumstance of minority because of a lack of proof regarding his actual age and the date of the rape rather than a moral or evidentiary certainty of his minority.

In any event, notwithstanding the presence of the privileged mitigating circumstance of minority, which warrants the lowering of the public penalty by one degree, there is no justifiable ground to depart from the jurisprudential trend in the award of damages in the case of qualified rape, considering the compensatory nature of the award of civil indemnity and moral damages. This was the same stance this Court took in People v. Candelario,[39] a case decided on July 28, 1999, which did not reduce the award of damages. At that time, the damages amounted to P75,000.00 for civil indemnity and P50,000.00 for moral damages, even if the public penalty imposed on the accused was lowered by one degree, because of the presence of the privileged mitigating circumstance of minority. The principal consideration for the award of damages, under the ruling in People v. Salome[40] and People v. Quiachon[41] is the penalty provided by law or imposable for the offense because of its heinousness, not the public penalty actually imposed on the offender. Regarding the civil indemnity and moral damages, People v. Salome explained the basis for increasing the amount of said civil damages as follows: The Court, likewise, affirms the civil indemnity awarded by the Court of Appeals to Sally in accordance with the ruling in People v. Sambrano which states: "As to damages, we have held that if the rape is perpetrated with any of the attending qualifying circumstances that require the

imposition of the death penalty, the civil indemnity for the victim shall P75,000.00 ... Also, in rape cases, moral damages are awarded without the need proof other than the fact of rape because it is assumed that the victim has suffered moral injuries entitling her to such an award. However, the trial court's award of P50,000.00 as moral damages should also be increased to P75,000 pursuant to current jurisprudence on qualified rape." It should be noted that while the new law prohibits the imposition of the death penalty, the penalty provided for by law for a heinous offense is still death and the offense is still heinous. Consequently, the civil indemnity for the victim is still P75,000.00. People v. Quiachon also ratiocinates as follows: With respect to the award of damages, the appellate court, following prevailing jurisprudence, correctly awarded the following amounts; P75,000.00 as civil indemnity which is awarded if the crime is qualified by circumstances warranting the imposition of the death penalty; P75,000.00.00 as moral damages because the victim is assumed to have suffered moral injuries, hence, entitling her to an award of moral damages even without proof thereof, x x x Even if the penalty of death is not to be imposed on the appellant because of the prohibition in R.A. No. 9346, the civil indemnity of P75,000.00 is still proper because, following the ratiocination in People v. Victor, the said award is not dependent on the actual imposition of the death

penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense. The Court declared that the award of P75,000.00 shows "not only a reaction to the apathetic societal perception of the penal law and the financial fluctuations over time but also the expression of the displeasure of the court of the incidence of heinous crimes against chastity." The litmus test therefore, in the determination of the civil indemnity is the heinous character of the crime committed, which would have warranted the imposition of the death penalty, regardless of whether the penalty actually imposed is reduced to reclusion perpetua. As to the award of exemplary damages, Article 2229 of the Civil Code provides that exemplary or corrective damages are imposed in addition to the moral, temperate, liquidated or compensatory damages. Exemplary damages are not recoverable as a matter of right. The requirements of an award of exemplary damagees are: (1) they may be imposed by way of example in addition to compensatory damages, and only after the claimant's right to them has been established; (2) they cannot be recovered as a matter of right, their determination depending upon the amount of compensatory damages that may be awarded to the claimant; (3) the act must be accompanied by bad faith or done in a wanton, fraudulent, oppressive or malevolent manner.[42] Since the compensatory damages, such as the civil indemnity and moral damages, are increased when qualified rape is

committed, the exemplary damages should likewise be increased in accordance with prevailing jurisprudence.[43] In sum, the increased amount of P75,000.00 each as civil indemnity and moral damages should be maintained. It is also proper and appropriate that the award of exemplary damages be likewise increased to the amount of P30,000.00 based on the latest jurisprudence on the award of damages on qualified rape. Thus, the CA correctly awarded P75,000.00 as civil indemnity. However the award of P50,000.00 as moral damages is increased to P75,000.00[44] and that of P25,000.00 as exemplary damages is likewise increased to P30,000.00.[45] Meanwhile, when accused-appellant was detained at the New Bilibid Prison pending the outcome of his appeal before this Court, Republic Act (R.A.) No. 9344, the Juvenile Justice and Welfare Act of 2006 took effect on May 20, 2006. The RTC decision and CA decision were promulgated on January 17, 2003 and July 14, 2005, respectively. The promulgation of the sentence of conviction of accused-appellant handed down by the RTC was not suspended as he was about 25 years of age at that time, in accordance with Article 192 of Presidential Decree (P.D.) No. 603, The Child and Youth Welfare Code[46] and Section 32 of A.M. No. 02-1-18-SC, the Rule on Juveniles in Conflict with the Law[47] Accused-appellant is now approximately 31 years of age. He was previously detained at the Albay Provincial Jail at Legaspi City and transferred to the New Bilibid

Prison, Muntinlupa City on October 13, 2003. R.A. No. 9344 provides for its retroactive application as follows: Sec. 68. Children Who Have Been Convicted and are Serving Sentence. - Persons who have been convicted and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18) years at the time of the commission of the offense for which they were convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act. x xx The aforequoted provision allows the retroactive application of the Act to those who have been convicted and are serving sentence at the time of the effectivity of this said Act, and who were below the age of 18 years at the time of the commission of the offense. With more reason, the Act should apply to this case wherein the conviction by the lower court is still under review. Hence, it is necessary to examine which provisions of R.A. No. 9344 shall apply to accused-appellant, who was below 18 years old at the time of the commission of the offense. Sec. 38 of R.A. No. 9344 provides for the automatic suspension of sentence of a child in conflict with the law, even if he/she is already 18 years of age or more at the time he/she is found guilty of the offense charged. It reads: Sec. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense

charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen (18) of age or more at the time of the pronouncement of his/her guilt. Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court on Juvenile in Conflict with the Law. The above-quoted provision makes no distinction as to the nature of the offense committed by the child in conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC.[48] The said P.D. and Supreme Court (SC) Rule provide that the benefit of suspended sentence would not apply to a child in conflict with the law if, among others, he/she has been convicted of an offense punishable by death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A. No. 9344, the Court is guided by the basic principle of statutory construction that when the law does not distinguish, we should not distinguish.[49] Since R.A. No. 9344 does not distinguish between a minor who has been convicted of a capital offense and another who has been convicted of a lesser offense, the Court should also not distinguish and should apply the automatic suspension of sentence to a child in

conflict with the law who has been found guilty of a heinous crime. Moreover, the legislative intent, to apply to heinous crimes the automatic suspension of sentence of a child in conflict with the law can be gleaned from the Senate deliberations[50] on Senate Bill No. 1402 (Juvenile Justice and Delinquency Prevention Act of 2005), the pertinent portion of which is quoted below: If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may have committed a serious offense, and may have acted with discernment, then the child could be recommended by the Department of Social Welfare and Development (DSWD), by the Local Council for the Protection of Children (LCPC), or by my proposed Office of Juvenile Welfare and Restoration to go through a judicial proceeding; but the welfare, best interests, and restoration of the child should still be a primordial or primary consideration. Even in heinous crimes, the intention should still be the child's restoration, rehabilitation and reintegration. xxx (Italics supplied) Nonetheless, while Sec, 38 of R.A. No. 9344 provides that suspension of sentence can still be applied even if the child in conflict with the law is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt, Sec. 40 of the same law limits the said suspension of sentence until the said child reaches the maximum age of 21, thus:

Sec. 40. Return of the Child in Conflict with the Law to Court. - If the court finds that the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the condition of his/her disposition or rehabilitation program, the child in conflict with the law shall be brought before the court for execution of judgment. If said child in conilict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child in accordance with this Act, to order execution of sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twentyone (21) years, (emphasis ours) To date, accused-appellant is about 31 years of age, and the judgment of the RTC had been promulgated, even before the effectivity of R.A. No. 9344. Thus, the application of Sees. 38 and 40 to the suspension of sentence is now moot and academic.[51] However, accusedappellant shall be entitled to appropriate disposition under Sec. 51 of R.A. No. 9344, which provides for the confinement of convicted children as follows: Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. - A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training

facilities that may be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD. The civil liability resulting from the commission of the offense is not affected by the appropriate disposition measures and shall be enforced in accordance with law.[52] WHEREFORE, the decision of the CA dated July 14, 2005 in CA- G.R. CRH.C. No. 00717 is hereby AFFIRMED with the following MODIFICATIONS: (1) the penalty of death imposed on accused-appellant is reduced to reclusion perpetua;[53] and (2) accused-appellant is ordered to pay the victim the amount of P75,000.00 and P30,000.00 as moral damages and exemplary damages, respectively. The award of civil indemnity in the amount of P75,000.00 is maintained. However, the case shall be REMANDED to the court a quo for appropriate disposition in accordance with Sec. 51 of R.A. 9344. SO ORDERED.

THIRD DIVISION [G.R. No. 180380, August 04, 2009] RAYMUND MADALI AND RODEL MADALI, PETITIONERS, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT. DECISION CHICO-NAZARIO, J.: In this Petition for Review on Certiorari under Rule 45 of the Rules of Court, petitioners Raymund Madali (Raymund) and Rodel Madali (Rodel) seek the reversal of the 29 August 2007 Decision[1] of the Court of Appeals in CA-G.R. CR No. 27757; and its 23 October 2007 Resolution,[2] affirming with modifications the 28 July 2003 Decision[3] of the Romblon, Romblon, Regional Trial Court (RTC), Branch 81, in Criminal Case No. 2179, finding petitioners guilty of homicide. For the death of AAA,[4] Raymund, Rodel and a certain Bernardino "Jojo" Maestro (Bernardino) were charged before the RTC with the crime of Murder. The accusatory portion of the Information reads: That on or about the 13th day of April 1999, at around 11:00 o'clock in the evening, in the Barangay XXX, Municipality of Romblon, province of Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, conspiring, confederating and mutually helping each other, did then and there by means of treachery and with evident premeditation, willfully, unlawfully and feloniously attack, assault, strike

with a coconut frond and "llave inglesa" and strangle with a dog chain, one AAA, inflicting upon the latter mortal wounds in different parts of his body which caused his untimely death.[5] During the arraignment on 31 May 2000, the three accused, with the assistance of counsel, pleaded not guilty.[6] On trial, the prosecution presented eight witnesses, namely: (1) Jovencio Musa (Jovencio), 16 years old, the victim's cousin and the alleged lone eyewitness to the killing; (2) Senior Police Officer (SPO) 3 Rogelio Madali, the designated Deputy Chief of Police of the Romblon Police Station; (3) Police Officer (PO) 3 Nicolas Molo, the police investigator assigned to the case; (4) BBB, the mother of the deceased victim; (5) Dr. Carmen Lita P. Calsado, Chief of the Romblon District Hospital, the physician who issued the death certificate of AAA; (6) Emerson de Asis, the alleged companion of witness Jovencio on the night in question, who later became a hostile witness; (7) Michael Manasan, also a companion of witness Jovencio before the killing of the victim occurred; (8) Dr. Floresto Arizala, Jr., a forensic expert from the National Bureau of Investigation (NBI), Manila, who conducted the examination of the corpse of the victim after the same was exhumed. As documentary and object evidence, the prosecution offered the following: (1) Exhibit "A" Affidavit of Jovencio executed on 22 April 1999, detailing the circumstances prior to, during and after the killing of the victim perpetrated by Raymund, Rodel and

Bernardino; (2) Exhibit "B" Sinumpaang Salaysay of Jovencio dated 8 May 1999, a recantation of the 22 April 1999 Affidavit; (3) Exhibit "C" - Amended Affidavit of Jovencio dated 28 May 1999, which was substantially the same on material points as the 22 April 1999 Affidavit; (4) Exhibit "D" - Undated Reply Affidavit of Jovencio insisting that the death of the victim was authored by Raymund, Rodel and Bernardino; (5) Exhibit "E" - Joint Affidavit of prosecution witnesses SPO3 Rogelio Madali and a certain SPO2 Teresito M. Sumadsad; (6) Exhibit "F" - the coconut frond recovered by the police officers from the scene of the incident; (7) Exhibit "G" - a dog chain used as part of a strap that was tied to the victim's neck while he was hanging from a tree; (8) Exhibit "H" - the handkerchief that was tied around the victim's neck; (9) Exhibit "I" empty bottles of gin; (10) Exhibit "J" - cellophanes with rugby; (10) Exhibit "K" - pictures taken from the crime scene including the picture of the body of the victim tied to a tree; (11) Exhibit "L" - Letter of Request for the NBI to conduct an examination of the body of the victim; (12) Exhibits "M" to "O" - NBI routing slips; (14) Exhibit "P" Death Certificate issued by Dr. Carmen Lita P. Calsado; (15) Exhibit "Q" - Exhumation Report issued by Dr. Floresto P. Arizala, Jr.; (16) Exhibit "R" - the Autopsy Report submitted by Dr. Floresto P. Arizala, Jr.; (17) Exhibit "S" - Sketch of the head of the victim showing the injuries thereon; and (18) Exhibit "T" - handwritten draft of the exhumation report. Taken together, the evidence offered by the prosecution shows that at

around 5:30 in the afternoon of 13 April 1999, BBB, who made a living by selling goods aboard ships docked at the Romblon Pier, and who was constantly assisted by her 15-year-old son AAA, was on a ship plying her wares. AAA, together with Jovencio and Raymund, was there helping his mother.[7] Sometime later, Raymund and AAA left the ship. Jovencio stayed a little longer.[8] At about 9:00 p.m. of the same day, Jovencio and another friend named Michael Manasan sat beside the Rizal monument in the Poblacion of Romblon, located between the Roman Catholic Church and Lover's Inn. Michael had just left Jovencio when Raymund, Rodel, Bernardino and the victim AAA arrived. After meandering around, the group proceeded to climb the stairs, atop of which was the reservoir just beside the Romblon National High School. The victim, AAA, ascended first; behind him were Rodel, Raymund, Bernardino and witness Jovencio. As soon as they reached the reservoir, Bernardino blindfolded AAA with the handkerchief of Raymund. Bernardino at once blurted out, "Join the rugby boys." AAA replied, "That's enough." Bernardino then struck AAA thrice with a fresh and hard coconut frond. AAA lost his balance and was made to stand up by Raymund, Rodel and Bernardino. Raymund took his turn clobbering AAA at the back of his thighs with the same coconut frond. AAA wobbled. Before he could recover, he received punches to his head and body from Rodel, who was wearing brass knuckles. The punishments proved too much, as AAA lost consciousness.

Not satisfied, Raymund placed his handkerchief around the neck of AAA, with its ends tied to a dog chain. With the contraption, the three malefactors pulled the body up a tree. Stunned at the sight of his cousin being ill-treated, Jovencio could only muster a faint voice saying "Enough" every single-time AAA received the painful blows. Bernardino, who seemed to suggest finishing off the victim, remarked, "Since we're all here, let's get on with it." Before leaving the scene, the three assailants warned Jovencio not to reveal the incident to anyone, or he would be next. Tormented and torn between the desire to come clean and the fear for his life, Jovencio hardly slept that night. He did not divulge the incident to anyone for the next few days. BBB, the victim's mother, was worried when her son did not come home. She started asking relatives whether they had seen her son, but their reply was always in the negative. It was three days later that a certain Eugenio Murchanto reported to the police authorities about a dead man found in Barangay ZZZ near the Romblon National High School. When the policemen went there, they found the cadaver emitting a foul odor, with maggots crawling all over, hanging from a tree with a handkerchief tied around the neck and a dog chain fastened to the handkerchief. Also found in the area were paraphernalia for inhaling rugby, as well as empty bottles of gin and a coconut frond. The provincial hospital refused to conduct an autopsy, since AAA's

corpse was already decomposing and stank so badly. It was through the intercession of the NBI that the body was eventually exhumed and examined by medico-legal experts. Dr. Floresto P. Arizala, Jr., who conducted the examination, opined that the victim died due to head injuries and not to asphyxiation by hanging. He declared that the victim was already dead when he was tied to the tree, and that the variety of injuries sustained by the victim could be attributed to more than one assailant. Upon investigation, Jovencio narrated the incident and pointed to Raymund, Rodel and Bernardino as the perpetrators of the crime. Thereafter, Jovencio executed his first affidavit, which was dated 22 April 1999. Because of the threat made on him by a certain Wilson, an uncle of Raymund and Rodel, Jovencio executed a second affidavit dated 8 May 1999, repudiating his first affidavit. On 28 May 1999, Jovencio made his third sworn statement substantially reverting to his first affidavit. The accused, on the other hand, advanced the defense of denial and alibi. They claimed they had nothing to do with the death of AAA, and that they were nowhere near the locus criminis when the killing occurred. According to Rodel, 16 years old, he was with his father Rodolfo Madali in the house of a friend named Noel Mindoro, located more or less 14 kilometers from the place where the victim was slain where they spent the whole evening until the following morning. Rodel's testimony was corroborated by his father and Noel Mindoro.

On their part, Raymund, 14 years of age, and Bernardino declared that they were in their respective houses on the night in question. Raymund's place was allegedly five kilometers away from the scene of the crime, while Bernardino's was one kilometer away. Bernardino's testimony was supported by his father Bernardino Maestro, Sr. and by his neighbor Diana Mendez. Raymund's friend, Pastor Mario Fajiculay backed up the former's alibi. Convinced by the version of the prosecution, the RTC rendered a guilty verdict against the three accused. On account of the prosecution's failure to prove the qualifying circumstances of treachery and evident premeditation, they were only convicted of homicide. The RTC observed that the incident was a sort of initiation, in which the victim voluntarily went along with the perpetrators, not totally unaware that he would be beaten. The RTC also appreciated the privileged mitigating circumstance of minority in favor of the three accused. The dispositive portion of the RTC decision reads: WHEREFORE, finding the accused BERNARDO (sic) Jojo MAESTRO, JR., RODEL MADALI AND RAYMUND MADALI GUILTY beyond reasonable doubt of the crime of Homicide, they are hereby sentenced to suffer an indeterminate sentence of four (4) years, two (2) months and one (1) day to six (6) years and to indemnify the heirs of AAA jointly and severally the amount of PhP 50,000.00.[9]

On 6 August 2003, Bernardino applied for probation. Thus, only Raymund and Rodel elevated their convictions to the Court of Appeals. In a Decision dated 29 August 2007, the Court of Appeals affirmed the findings of the RTC that Rodel and Raymund killed the victim. However, pursuant to Section 64 of Republic Act No. 9344, otherwise known as the "Juvenile Justice and Welfare Act of 2006," which exempts from criminal liability a minor fifteen (15) years or below at the time of the commission of the offense, Raymund's case was dismissed. Rodel's conviction was sustained, and he was sentenced to six months and one day of prision correccional to eight years and one day of prision mayor, but the imposition of said penalty was suspended pursuant to Republic Act No. 9344. The judgment provides: WHEREFORE, the Decision dated July 28, 2003, rendered by the Regional Trial Court of Romblon, Romblon (Branch 81) is Criminal Case No. 2179, is affirmed with the following MODIFICATIONS: 1) Appellant Raymund Madali is declared EXEMPT from criminal liability and the case, insofar as he is concerned is hereby DISMISSED pursuant to R.A. No. 9344. 2) Appellant Rodel Madali is found guilty of homicide, the proper penalty for which is fixed at six (6) months and one (1) day of prision correccional to eight (8) years and one (1) day of prision mayor. Imposition of this penalty should, however, be SUSPENDED, also pursuant to R.A. No. 9344.

3) In addition to the civil indemnity imposed by the trial court in the amount of Fifty Thousand Pesos (P50,000.00), moral damages in the amount of Fifty Thousand Pesos (P50,000.00) is hereby awarded in favor of the heirs of the victim, AAA. 4) x x x x 5) Finally, this case is referred to the Department of Social Welfare and Development (DWSD) for further proceedings in accordance with R.A. No. 9344.[10] Hence, the instant case. Petitioners Raymund and Rodel assail both the RTC and the Court of Appeals' findings, which gave weight and credence to the account of the incident given by prosecution witness Jovencio, whose testimony according to them was replete with patent and substantial inconsistencies. First, petitioners set their sights on the conflicting affidavits executed by Jovencio. The first affidavit implicated the three accused in the death of AAA, which was controverted by the second affidavit where Jovencio denied having seen the three accused butcher the victim, while the third affidavit restated the material points in the first affidavit. Petitioners also pointed out the discrepancy between the first and the third affidavits, as the former stated that Jovencio was not seen by the three accused when they executed the victim; whereas in the latter affidavit, Jovencio stated he was with the three when the killing took place. Second, petitioners assert that the testimony of Jovencio relating to the alleged fact that his companions, Michael Manasan and Emerson de

Asis, saw the three accused and the deceased during the night in question was debunked by the very testimonies of Michael Manasan and Emerson de Asis wherein they declared otherwise. Moreover, petitioners contend that both the RTC and the Court of Appeals erred in disbelieving the defense of alibi they interposed, considering that the prosecution failed to muster the required quantum of proof, and that said defense was corroborated by testimonies of the other defense witnesses. The elemental question in this case is the credibility of the parties and their witnesses. Well-entrenched is the rule that the matter of assigning values to declarations on the witness stand is best and most competently performed by the trial judge who, unlike appellate magistrates, can weigh such testimonies in light of the declarant's demeanor, conduct and position to discriminate between truth and falsehood.[11] This is especially true when the trial court's findings have been affirmed by the appellate court, because said findings are generally conclusive and binding upon this Court, unless it be manifestly shown that the lower courts had overlooked or disregarded arbitrarily the facts and circumstances of significance in the case.[12] The RTC and the Court of Appeals did not overlook any significant facts in the case. This Court itself, in its effort to ferret out the truth based on the evidence

on records has diligently pored over the transcripts of stenographic notes of this case and, like the RTC, finds the testimony of Jovencio credible. Subjected to the grueling examinations on the witness stand, Jovencio steadfastly pointed to Raymund, Rodel and Bernardino as the persons who slaughtered the victim. He testified as follows: Q: Mr. Witness, will you tell us where were you on April 13, 1999? xxxx A: I was at the Rizal standing by. xxxx PROS. BENEDICTO continuing:

Q: And what happened when they arrived? A: They were also standing by there. Q: How long did they stand by in that place? A: I do not know how many hours? Q: Then, what happened next? A: Around 10:30 o'clock we went there. Q: When you said we, to whom you are referring as your companions? A: Jojo [Bernardino], Rodel, Raymund and AAA. Q: What happened to Michael?

Q: While you were at Rizal on April 13, 1999 in the evening, [who was your companion]? A: Only Michael. Q: And what were you doing with Michael? A: Only standing by there. Q: Did anything happen while you were standing by with Michael? A: None, sir.

A: He went home. Q: When you said you went there, to which place are you referring? A: Near the high school at hagdanhagdan. Q: There are three (3) main streets in the Poblacion of Romblon, which street did you take in going to hagdan-hagdan near the high school? A: In the middle.

Q: Did anyone arrive while you were there? A: Yes, sir. Q: Who? A: Jojo [Bernardino] followed by Raymund then AAA, then Rodel.

Q: Did you climb the stairs? A: Yes, sir. Q: Who was ahead? A: AAA. Q: And who came next?

A: Rodel. Q: Did AAA make any reply? Q: Then, after Rodel, who? A: AAA said "That's enough." A: Raymund. Q: Then? A: [Bernardino]. Q: [Bernardino] who? A: Maestro. Q: What is the relation of this Jojo Maestro to Bernardino Maestro you pointed a while ago? A: That Jojo is his alias. Q: Did you reach the top of the stairs? A: Yes, sir. Q: Upon reaching the top of the stairs, what did you do, if any? A: [Bernardino] blindfolded AAA. Q: With what? A: Handkerchief. Q: Where did he get that handkerchief? A: From Raymund. Q: After AAA, what is the family name of this AAA? A: AAA. Q: After AAA was blindfolded, what happened next? A: Then [Bernardino] told him "Join the rugby boys!" Q: Who struck him with the coconut frond? A: [Bernardino]. Q: What happened to AAA when he was struck three (3) times with the coconut fronds? A: He was made to stand. Q: After standing, what happened next? A: AAA was again struck with the coconut frond byRaymund. Q: Was AAA hit? A: Yes, sir. Q: Where? A: Here (witness is pointing to the posterior aspect of his right thigh). Q: What happened to AAA when he was hit by the coconut frond? A: As if he became weak. Q: How about Rodel, what did Rodel do, if any? A: He boxed the body and the head. Q: Of whom? Q: What happened after Jojo Maestro said you join the rugby boys? A: AAA was struck by a coconut frond three (3) times.

A: Of Rodel. Q: Who was boxed by Rodel? A: AAA. Q: In Exhibit C you mentioned about llave inglesa, what is this llave inglesa? A: Lead llave inglesa. Q: And how does it look like? A: I forgot already but it was a brass knuckle. Q: Did Exh. C mention that Rodel punched him in different parts of his body with a llave inglesa causing him to fall to the ground, how did Rodel use this llave inglesa? A: Worn in his hand (witness raising his right hand and motioning the left as if wearing something in his right hand), then punched him. Q: When he was punched on different parts of his body by Rodel using llave inglesa, what happened to AAA? A: He lost consciousness. Q: When AAA lost consciousness, what did Bernardino Maestro, Raymund Madali and Rodel Madali do, if any? A: Raymund used his handkerchief in tying the neck of my cousin. Q: Who is this cousin of yours?

A: AAA. COURT: How about Bernardino as part of the question? PROS. BENEDICTO continuing: Q: Bernardino, what did he do, if any? A: The chain for the dog was tied to the handkerchief. COURT: How about Rodel? A: They helped in lifting him and making him stand and hooked the tie to the tree. Q: What is this tie which was hooked to the tree made of? A: The chain. Q: Referring to the dog chain? A: Yes, sir. Q: While all these things were happening, what was Jovencio Musa doing who is a cousin of AAA? A: I got shock upon seeing it. Q: Did Jovencio Musa utter anything or do something? A: Everytime AAA was being struck I said "Enough!" (Tama na!).

A: AAA. Q: What is the family name? Q: How many times did you say that is enough?

A: Twice. Q: How did the three (3) react to your saying "Tama na, tama na!"? A: "It is already here so we will proceed." COURT: Translate that. A: "Yari na ini, idiretso na." xxxx Q: After tying the dog chain to the tree, what happened next? A: I was told by the three (3) that if I would reveal I would be the next to be killed. Q: After that, what happened? A: No more, we went home already.[13] Jovencio saw at close range the incident as it was unfolding before his very eyes as he was there when it happened. He was in the company of the perpetrators and the victim. Thus, the incident could not have escaped his attention. The prosecution adequately established in graphic detail, through the eyewitness, the circumstances that transpired before, during and after the killing of AAA. At around 11:30 p.m. of 13 April 1999, Jovencio, together with the victim, as well as with Rodel, Raymund and Bernardino, went to a place near the Romblon National High School. Jovencio's earlier companion, Michael Manasan, did not go with the group, as he had already left a little earlier. As they reached their

destination, the group ascended the stairs leading to a reservoir near the said school. AAA was ahead, followed by Rodel, Raymund, Bernardino and Jovencio. Upon reaching the top, Bernardino blindfolded the victim with a handkerchief and told the latter, "Join the rugby boys!" The victim responded, "That's enough!" Bernardino then hit the victim thrice, using a green and hard coconut frond. Unable to withstand the beatings, the victim hit the ground and was lifted to his feet by Bernardino, Raymund and Rodel. With the same coconut frond, Raymund hit the victim on his right thigh. Rodel followed by punching the body and the head of the victim with a brass knuckle (llave inglesa) wrapped around the former's right fist. Feeling for his cousin, Jovencio shouted "Tama na! Tama na!" Bernardino responded, "Yari na ini, ideretso na," (We have come this far, we have to finish it.) The victim's strength was no match to the injuries he received. He passed out. Raymund then tied a handkerchief around the victim's neck, fastened a dog chain to the ends of the said handkerchief and, with the aid of Raymund and Rodel, hoisted the victim's body to and hanged it from a nearby tree. Shocked at what was happening, Jovencio just watched the whole incident, failing to muster enough courage to help his dying cousin. The perpetrators warned Jovencio not to divulge to anyone what he saw, or he would be the next victim. Then they all left the place, leaving the victim's body hanging from a tree.

The testimony of Jovencio was substantiated by the medical findings indicating that the victim was hit in the head by hard blows, causing his death. Other pieces of evidence such as the coconut frond, the dog chain and the handkerchief found in the scene also supported Jovencio's account. Against the damning evidence adduced by the prosecution, petitioners Raymund and Rodel could only muster mere denial. Unfortunately for them, their defense was much too flaccid to stay firm against the weighty evidence for the prosecution. Denial, if unsubstantiated by clear and convincing evidence, is a negative and self-serving evidence that deserves no weight in law. It cannot be given greater evidentiary value than the testimony of a credible witness who testifies on affirmative matters.[14] Between the selfserving testimonies of petitioners and the positive identification by the eyewitness, the latter deserves greater credence.[15] Petitioners' alibi, which was supported by the testimonies of close relatives and friends, cannot overcome the convincing evidence adduced by the prosecution. Such corroborative testimonies of relatives and friends are viewed with suspicion and skepticism by the Court.[16] Furthermore, for alibi to prosper, two elements must concur: (a) the accused was in another place at the time the crime was committed; and (b) it was physically impossible for him to be at the scene of the crime at the time it was committed. In the case under consideration, Raymund

was within a 5-kilometer distance from the scene, while Rodel was within a 14-kilometer distance. Even assuming arguendo that Raymund and Rodel's defense were true, still, it was not physically impossible for them to be at the crime scene and to be participants in the gruesome crime. It was not difficult for them to travel from where they allegedly were and arrive at the scene during the killing episode. Petitioners made an issue of the affidavit of recantation repudiating the earlier one laying the blame on them. The affidavit of recantation executed by a witness prior to the trial cannot prevail over the testimony made during the trial.[17] Jovencio effectively repudiated the contents of the affidavit of recantation. The recantation would hardly suffice to overturn the trial court's finding of guilt, which was based on a clear and convincing testimony given during a full-blown trial. As held by this Court, an affidavit of recantation, being usually taken ex parte, would be considered inferior to the testimony given in open court.[18] A recantation is exceedingly unreliable, inasmuch as it is easily secured from a poor and ignorant witness, usually through intimidation or for monetary consideration.[19] Considering the age, the social standing and the economic status of witness Jovencio, it is not far-fetched that the combination of these factors impelled him to affix his signature to the recanting affidavit. Besides, Jovencio explained why he executed the second affidavit or the affidavit of recantation, which supposedly exonerated petitioners. He had been threatened by a certain Wilson, who

was a relative of petitioners. Jovencio testified: Q: Alright, in Exh. C specifically C-1, you mentioned that, you said that somebody fetched me in the evening of May 7, 1999 who told me that Rey Andrade wanted to talk to me regarding the incident, who was that somebody who fetched you in the house? A: I do not know but he is known as Andrade. xxxx Q: What was the subject of your conversation with Andrade? A: About the Nephew of Wilson. xxxx Q: How about this Wilson you were referring to? A: Wilson all of a sudden arrived there. Q: Did Wilson say anything? A: Wilson said, if we will lose, all our expenses will be paid and if he wins I will be the next.[20] Petitioners also place much premium on the alleged contradiction between Jovencio's narrative -- which claimed that Emerson de Asis and Michael Manasan saw the victim in the company of the malefactors immediately prior to the killing -and the testimonies of these two witnesses denying such allegation. Unfortunately, this is just a minor inconsistency. The common

narration of Emerson de Asis and Michael Manasan that they did not see the perpetrators with the victim prior to the killing are too insignificant, since their narration did not directly relate to the act of killing itself. Said inconsistency does not dilute the declarations of Jovencio. Given the natural frailties of the human mind and its incapacity to assimilate all material details of a given incident, slight inconsistencies and variances in the declarations of a witness hardly weaken their probative value. It is well settled that immaterial and insignificant details do not discredit a testimony on the very material and significant point bearing on the very act of accusedappellants.[21] As long as the testimonies of the witnesses corroborate one another on material points, minor inconsistencies therein cannot destroy their credibility. Inconsistencies on minor details do not undermine the integrity of a prosecution witness.[22] The minor inconsistencies and contradictions only serve to attest to the truthfulness of the witnesses and the fact that they had not been coached or rehearsed.[23] The declaration of Michael Manasan -- that he did not see the petitioners together with Jovencio and the victim immediately prior the incident -- does not help a bit the cause of petitioners. As the Court of Appeals correctly pointed out, Michael could not have seen the malefactors in the company of the victim because according to Jovencio, Michael had gone home earlier that evening. In fine, this Court defers to the findings of the trial court, which were affirmed by the Court of

Appeals, there being no cogent reason to veer away from such findings. As to the criminal liability, Raymond is exempt. As correctly ruled by the Court of Appeals, Raymund, who was only 14 years of age at the time he committed the crime, should be exempt from criminal liability and should be released to the custody of his parents or guardian pursuant to Sections 6 and 20 of Republic Act No. 9344, to wit: SEC. 6. Minimum Age of Criminal Responsibility. -- A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act. xxxx The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. SEC. 20. Children Below the Age of Criminal Responsibility. -- If it has been determined that the child taken into custody is fifteen (15) years old or below, the authority which will have an initial contact with the child has the duty to immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child's nearest relative. Said authority shall give notice to the local social welfare and development officer who will determine the appropriate programs in consultation with the child and to the person having custody over the

child. If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following: a duly registered nongovernmental or religious organization; a barangay official or a member of the Barangay Council for the Protection of Children (BCPC); a local social welfare and development officer; or, when and where appropriate, the DSWD. If the child referred to herein has been found by the Local Social Welfare and Development Office to be abandoned, neglected or abused by his parents, or in the event that the parents will not comply with the prevention program, the proper petition for involuntary commitment shall be filed by the DSWD or the Local Social Welfare and Development Office pursuant to Presidential Decree No. 603, otherwise known as "The Child and Youth Welfare Code." Although the crime was committed on 13 April 1999 and Republic Act No. 9344 took effect only on 20 May 2006, the said law should be given retroactive effect in favor of Raymund who was not shown to be a habitual criminal. This is based on Article 22 of the Revised Penal Code which provides: Retroactive effect of penal laws. -Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.

While Raymund is exempt from criminal liability, his civil liability is not extinguished pursuant to the second paragraph of Section 6, Republic Act No. 9344. As to Rodel's situation, it must be borne in mind that he was 16 years old at the time of the commission of the crime. A determination of whether he acted with or without discernment is necessary pursuant to Section 6 of Republic Act No. 9344, viz: SEC. 6. Minimum Age of Criminal Responsibility. - x x x. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. Discernment is that mental capacity of a minor to fully appreciate the consequences of his unlawful act.[24] Such capacity may be known and should be determined by taking into consideration all the facts and circumstances afforded by the records in each case. The Court of Appeals could not have been more accurate when it opined that Rodel acted with discernment. Rodel, together with his cohorts, warned Jovencio not to reveal their hideous act to anyone; otherwise, they would kill him. Rodel knew, therefore, that killing AAA was a condemnable act and should be kept in secrecy. He fully appreciated the consequences of his unlawful act.

Under Article 68 of the Revised Penal Code, the penalty to be imposed upon a person under 18 but above 15 shall be the penalty next lower than that prescribed by law, but always in the proper period. The penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal. Pursuant to Article 68, the maximum penalty should be within prision mayor, which is a degree lower than reclusion temporal. Absent any aggravating or mitigating circumstance, the maximum penalty should be in the medium period of prision mayor or 8 years and 1 day to 10 years. Applying the Indeterminate Sentence Law, the minimum should be anywhere within the penalty next lower in degree, that is, prision correccional. Therefore, the penalty imposed by the Court of Appeals, which is 6 months and one day of prision correccional to 8 years and one day of prision mayor, is in order. However, the sentence to be imposed against Rodel should be suspended pursuant to Section 38 of Republic Act No. 9344, which states: SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application. Provided, however, That suspension of sentence shall still be

applied even if the juvenile is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt. Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict with the Law. The Court of Appeals awarded P50,000.00 as civil indemnity and another P50,000.00 as moral damages in favor of the heirs of the victim. In addition, Rodel and Raymund are ordered to pay P25,000.00 as temperate damages in lieu of the actual damages for funeral expenses, which the prosecution claimed to have incurred but failed to support by receipts. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated 29 August 2007 in CA-G.R. No. 27757, exempting Raymund Madali from criminal liability is hereby AFFIRMED. With respect to Rodel Madali, being a child in conflict with the law, this Court suspends the pronouncement of his sentence and REMANDS his case to the court a quo for further proceedings in accordance with Section 38 of Republic Act No. 9344. However, with respect to the civil liabilities, Rodel Madali and Raymund Madali are solidarily liable to pay the heirs of the victim the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as temperate damages. SO ORDERED.

EN BANC [G.R. No. 128106-07, January 24, 2003] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. GONZALO BALDOGO, ACCUSEDAPPELLANT. DECISION CALLEJO, SR., J.: This is an automatic review of the Joint Judgment,[1] dated October 18, 1996, of the Regional Trial Court, Branch 52, Puerto Princesa City, finding accused-appellant Gonzalo Baldogo alias Baguio  guilty beyond reasonable doubt of the crime of Murder in Criminal Case No. 12900 and Kidnapping in Criminal Case No. 12903. The trial court imposed on accused-appellant the supreme penalty of death in Criminal Case No. 12900 and reclusion perpetua in Criminal Case No. 12903. I. The Indictments Two Informations were filed against accused-appellant and Edgar Bermas alias Bunso  which read: That on or about the 22nd day of February, 1996 in the evening at the residence of Mr. Julio Camacho of Iwahig Prison and Penal Farm, Puerto Princesa City, Philippines and within the jurisdiction of this Honorable Court, the said accused who were both convicted by final judgment of the offense of Homicide and while already serving sentence, committed the above name offense by conspiring and confederating together and mutually helping one another, with intent to kill, with

treachery and evident premeditation and while armed with a bolo, did then and there wilfully, unlawfully and feloniously assault, attack and hack one JORGE CAMACHO, hitting him and inflicting upon him mortal wounds at the different parts of his body, which was the direct and immediate cause of his death shortly thereafter. CONTRARY TO LAW, with the aggravating circumstances of treachery, evident[,] premeditation and recidivism. Puerto Princesa City, Philippines, March 5, 1996. [2] xxx That on Thursday, February 22, 1996 at more or less 8:15 in the evening at the Victim s residence, Iwahig Prison and Penal Farm, Puerto Princesa City, Philippines and within the jurisdiction of this Honorable Court, the said accused while serving sentence at the Central Sub-Colony both for the offense of Homicide, conspiring and confederating together and mutually helping one another, commits (sic) another offense, kidnapping one JULIE E. CAMACHO, a girl 12 years of age, and brought her to the mountains, where said Julie E. Camacho was detained and deprived of her liberty fro [sic] more than five days. CONTRARY TO LAW and attended by the aggravating circumstance of recidivism. [3] Accused-appellant was arraigned on June 28, 1996 and entered a plea of not guilty to both charges.[4] Edgardo Bermas died before he could be arraigned.[5] The two cases were ordered consolidated and a joint trial thereafter ensued.

The prosecution presented four witnesses, namely, Julie Camacho, Dr. Edilberto Joaquin, Esteban Mamites and Julio Camacho, Sr., and offered documentary and object evidence on its evidence-in-chief. II. The Antecedent Facts Julio Camacho, Sr. and his wife, Heather Esteban, had four children, namely: Julio, Jr., a student of the Palawan State University in Puerto Princesa City and who stayed in Guaygo, Puerto Princesa City; Jorge, who was fourteen years old;[6] Julie, who was 12 years old and a grade six elementary pupil at the Iwahig Elementary School and Jasper, who was eight years old. Julio Sr. was employed as a security guard in the Iwahig Prison and Penal Colony. He and his family lived in a compound inside the sub-colony. Edgardo Bermas alias Bunso,  an inmate of the penal colony, was assigned as a domestic helper of the Camacho spouses. Accusedappellant alias Baguio,  also an inmate of the colony, was assigned in January 1996 as a domestic helper of the Camacho family. Both helpers resided in a hut located about ten meters away from the house of the Camacho family. In the evening of February 22, 1996, accused-appellant and Bermas served dinner to Julio Sr., Jorge and Julie in the house of the Camachos. At about 7:30 p.m., Julio Sr. left the house to attend a bible study at the dormitory in the Agronomy Section of the Penal Farm. Heather and her son, Jasper, were in Aborlan town. Only Jorge and his sister Julie were left in the house.

After Julio Sr. had left the house, Julie went to the sala to study her assignment. Momentarily, Bermas called Julie from the kitchen saying: Jul, tawag ka ng kuya mo.  Julie ignored him. After five minutes, Bermas called her again but Julie again ignored him. Julie was perturbed when she heard a loud sound, akin to a yell, Aahh! Ahh!  coming from the kitchen located ten meters from the house. This prompted Julie to stand up and run to the kitchen. She was appalled to see Jorge sprawled on the ground near the kitchen, face down and bloodied. The vicinity was lighted by a fluorescent lamp. Standing over Jorge were accused-appellant and Bermas, each armed with a bolo.[7] The shirt of Bermas was bloodied.[8] Julie was horrified and so petrified that although she wanted to shout, she could not. She ran back to the sala with accused-appellant and Bermas in pursuit. Accusedappellant overtook Julie, tied her hands at her back with a torn t-shirt and placed a piece of cloth in her mouth to prevent her from shouting for help from their neighbors. Bermas went to the room of Julie s brothers. Accusedappellant dragged Julie outside the house and towards the mountain. Bermas tarried in the house. With the aid of a flashlight, accusedappellant, with Julie in tow, walked for hours towards the direction of the mountain. About a kilometer away from the house of the Camachos, accused-appellant and Julie stopped under a big tamarind tree at the foot of the mountain. After about thirty minutes, Bermas arrived with a kettle and raw rice. Accused-appellant and Bermas retrieved a bag containing their

clothing and belongings from the trunk of the tamarind tree. They untied Julie and removed the gag from her mouth. The three then proceeded to climb the mountain and after walking for six hours or so, stopped under a big tree where they spent the night. When the three woke up in the morning of the following day, February 23, 1996, they continued their ascent of the mountain. Seven hours thereafter, they started to follow a descending route. Accused-appellant and Bermas told Julie that they would later release her. At about 3:00 p.m., Bermas left accused-appellant and Julie. However, accused-appellant did not let go of Julie. The two survived on sugar and rice cooked by accused-appellant. Once, they saw uniformed men looking for Julie. However, accused-appellant hid Julie behind the tree. She wanted to shout but he covered her mouth. In the early morning of February 28, 1996, accused-appellant told Julie that he was leaving her as he was going to Puerto Princesa City. He told her to fend for herself and return to the lowland the next day. After their breakfast, accusedappellant left Julie alone to fend for herself. A few hours after accusedappellant had left, Julie decided to return to the lowlands. She found a river and followed its course toward Balsaham until she saw a hut. She called upon its occupant who introduced himself as Nicodemus. Julie sought help from him. When asked by Nicodemus if she was the girl whom the police authorities were looking for, she replied in the affirmative. Nicodemus brought Julie to Balsaham where they met some personnel of the penal colony and police officers, and Nicodemus

turned Julie over for custody to them. Meanwhile, Julio, Sr. arrived home after his bible study at about 9:00 p.m. on February 22, 1996. He noticed that the television set was switched on but no one was watching it. He looked for his children but they were nowhere to be found. He then proceeded to the hut occupied by accused-appellant and Bermas but he also failed to find them. Julio Sr. then rushed to the house of his older brother, Augusto Camacho, to look for his children, but Augusto told him that Jorge and Julie were not there. Julio Sr. then sought the help of Romualdo Esparagoza, a trustee of the penal farm. The two rushed back to the Camacho residence and proceeded to the kitchen where they noticed blood on the floor. The two proceeded to the dirty kitchen and saw the bloodied body of Jorge dumped about three meters away from the dirty kitchen. Julio Sr. and Esparagoza then brought Jorge to the Iwahig Hospital where he was pronounced dead on arrival at 12:40 a.m. of February 23, 1996. Dr. Edilberto Joaquin examined the cadaver and found that the victim was stabbed on the breast once and at the back seven times. He sustained a lacerated wound on the neck. The layers of the neck, trachea and esophagus of Jorge had been cut. Jorge did not sustain any defensive wound. Dr. Joaquin performed an autopsy of the cadaver and signed a medical certificate with his findings, thus: MEDICAL CERTIFICATE GENERAL DATA:

JORGE CAMACHO y ESTEBAN, 14 years old, student, resident of Iwahig Prison and Penal Farm, approximately 5 3 inches inheight, was brought to the hospital, (DOA) dead on arrival at 12:40 AM, 23 February 1996, approximate time of death 8:00 P.M. February 22, 1996. FINDINGS Stab wound, deep, penetrating, approximately 1 inch in length, at the level of the xyphoid process, anteriorly. Stab wound, chest, back, approximately 1 inch length, right midclavicular line, level of the 3rd rib. Stab wound, back, right midclavicular line, level of the 5th rib. Stab wound, back, approximately 1 inch length level of the 5th rib, left midclavicular line. Stab wound, back, approximately 1 inch length, right midclavicular line, 6th rib. Stab wound, back, approximately 1 inch length, right midclavicular line, level of the 4th lumbar region. Stab wound, back, approximately 1 inch in length, right third lumbar region, deep, penetrating involving the liver. Stab wound, back, approximately 3/4 inch, at the level of the 2nd lumbar region. Lacerated wound, neck, anteriorly, deep, penetrating, cutting the layers

of the neck and the trachea and esophagus. CAUSE OF DEATH Hypovolemia due to severe hemorrhage secondary to multiple stab wounds and laceration of the neck. [9] Wounds numbers 7 and 9 were fatal. It was possible that two sharp-edged and sharp pointed weapons were used in stabbing Jorge and that two assailants stabbed the victim.[10] On February 29, 1996, Julie gave her sworn statement and a supplemental sworn statement to the police investigators.[11] Julio Sr. suffered mental anguish and sleepless nights because of the death of Jorge. The prosecution adduced in evidence excerpts of the personal file of accused-appellant kept in the penal colony showing that he had been convicted of homicide by the Regional Trial Court of Baguio City and that he commenced serving sentence on November 19, 1992 and that the minimum term of his penalty was to expire on August 16, 1997.[12] III. The Defenses and Evidence of Accused-Appellant Accused-appellant denied killing Jorge and kidnapping Julie. Accusedappellant asserted that Julie implicated him because she was coached and rehearsed. He testified that he was assigned as a helper in the house of Augusto Camacho, the Chief of the Industrial Section of the colony and the older brother of Julio Sr. Augusto told accused-appellant that his brother, Julio Sr., wanted to have accused-appellant transferred as his domestic helper. However,

accused-appellant balked because he had heard from Edgardo Bermas, the helper of Julio Sr., that the latter was cruel and had been maltreating Bermas. Nonetheless, in December 1995, accused-appellant was transferred as a domestic helper of Julio Sr. Accused-appellant confirmed that indeed Julio Sr. was cruel because whenever the latter was angry, he maltreated accusedappellant by spanking and boxing him. These would occur about two times a week. On February 22, 1996, at about 6:30 p.m., accused-appellant took his dinner in the kitchen. At about 7:00 p.m., while he was already in his quarters and preparing to sleep, Bermas arrived, armed with a bloodied bolo measuring about 1 feet long and told accused-appellant that he (Bermas) had just killed Jorge to avenge the maltreatment he received from Julio Sr. Bermas warned accused-appellant not to shout, otherwise he will also kill him. Petrified, accused-appellant kept silent. Bermas then brought accusedappellant to the kitchen in the house of the Camachos where accusedappellant saw the bloodied body of Jorge sprawled near the kitchen. Bermas called Julie three times, telling her that her brother was calling for her but Julie at first ignored Bermas. Julie later relented and went to the kitchen where Bermas grabbed her and threatened to kill her if she shouted. Bermas tied the hands of Julie with a piece of cloth and placed a piece of cloth around her face to prevent her from shouting. Bermas, still armed with his bolo tucked on his waist and a knife on his hand, brought accused-appellant

and Julie outside the house. The three then trekked towards the mountain. On the way, Bermas picked a bag containing food provisions and his and accusedappellant s clothings. Accusedappellant thought of escaping but could not because Bermas was watching him. With the help of a flashlight brought by Bermas, the three walked towards the mountain, with Julie walking ahead of accusedappellant and Bermas. After walking for hours, they stopped by a tree to which Bermas tied Julie. At one time, while Bermas and accused-appellant were scouring for water, Bermas kicked accused-appellant and pushed him into a ten feet deep ravine. The right hand and foot of accused-appellant sustained bruises. He likewise sustained a sprain on his foot. Bermas left accused-appellant and Julie after 1 days. In the meantime, accused-appellant managed to climb out of the ravine and heard Julie calling his name. Julie later told accused-appellant that before Bermas left, the latter told her that he was going to kill accused-appellant. Accused-appellant and Julie remained in the mountain after Bermas had left. At one time, accused-appellant and Julie saw soldiers who were looking for her. Accused-appellant did not reveal his and Julie s location to the soldiers because he was afraid that he might be killed. On February 25, 1996, accused-appellant untied Julie. He told her that he will set her free as soon as his foot shall have healed. On February 27, 1996, accusedappellant told Julie that she can go home already. He ordered her to go

down the mountain and proceed to Balsaham on her way back home. Although his foot was still aching, accused-appellant went down from the mountain ahead of Julie and proceeded to Balsaham. He then walked to Irawan where he took a tricycle to the public market in the poblacion in Puerto Princesa City. He then took a passenger jeepney and alighted at Brooke s Point where he was arrested after one week for the killing of Jorge and the kidnapping of Julie. Accused-appellant maintained that he did not intend to hurt Julie or deprive her of her liberty. He averred that during the entire period that he and Julie were in the mountain before Bermas left him, he tried to protect her from Bermas. Accused-appellant asserted that he wanted to bring Julie back to her parents after Bermas had left them and to surrender but accusedappellant was afraid that Julio Sr. might kill him. IV. The Verdict of the Trial Court After due proceedings, the trial court rendered its decision, the decretal portion of which reads: WHEREFORE, foregoing premises considered, a Joint Judgment is hereby rendered in: CRIMINAL CASE NO. 12900 finding the accused Gonzalo Baldogo, alias Baguio, guilty beyond reasonable doubt as principal of the crime of murder as defined and penalized in Article 248 of the Revised Penal Code, as amended by Section 6 of Republic Act No. 7659, and appreciating against him the specific aggravating circumstance of taking advantage and use of superior strength, without any mitigating

circumstance to offset the same, and pursuant to the provisions of the second paragraph, No. 1, of Article 63 of the Revised Penal Code, he is hereby sentenced to death in the manner prescribed by law; to pay the heirs of the deceased Jorge Camacho; 1. Actual and compensatory damages: For expenses incurred for funeral and other expenses incident to his death --P45,000.00

2. Moral damages ---------------------------100,000.00

3. Civil indemnity for the death of the victim, Jorge Camacho ------------------50,000.00

or the aggregate amount of -----------195,000.00 CRIMINAL CASE NO. 12903 finding the accused GONZALO BALDOGO, alias, Baguio, guilty beyond reasonable doubt as principal of the crime of kidnapping and serious illegal detention as defined and penalized in Article 267 of the Revised Penal Code, as amended by Section 8 of Republic Act No. 7659, and there being no modifying circumstance appreciated and pursuant to the provisions of the second paragraph, No. 2, of Article 63 of the Revised Penal Code, and not being entitled to the benefits of the Indeterminate Sentence Law, he

is hereby sentenced to reclusion perpetua, with the accessory penalties of civil interdiction for life, and of perpetual absolute disqualification; to pay the offended party, Julie Camacho for physical suffering, mental anguish, fright, serious anxiety and moral shock, moral damages of P100,000; and to pay the costs. The case as against co-accused Edgar Bermas is ordered dismissed by reason of extinction of criminal liability occasioned by his death pending conclusion of the proceedings as against him. SO ORDERED. [13] V. Assignment of Error In his appeal brief, accusedappellant avers that: I THE TRIAL COURT ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AND KIDNAPPING. II THE TRIAL COURT ERRED IN REJECTING ACCUSEDAPPELLANT S DEFENSE OF DENIAL. III THE TRIAL COURT ERRED IN APPRECIATING THE QUALIFYING AGGRAVATING CIRCUMSTANCE OF EVIDENT PREMEDITATION AND GENERIC AGGRAVATING CIRCUMSTANCE OF TAKING ADVANTAGE OF SUPERIOR STRENGTH DESPITE THE FAILURE

OF THE PROSECUTION TO PROVE THE SAME. IV THE TRIAL COURT ERRED IN IMPOSING THE DEATH PENALTY UPON THE ACCUSED-APPELLANT IN THE (SIC) CRIMINAL CASE #12900. [14] VI. Resolution of this Court The first two assignments of errors being interrelated, the Court will delve into and resolve the same simultaneously. Accused-appellant avers that he had nothing to do with, and hence should not be claimed for, the death of Jorge and the kidnapping and detention of Julie. Accused-appellant claims that he was acting under duress because he was threatened by Bermas with death unless he did what Bermas ordered him to do. Accusedappellant was even protective of Julie. He insists that the latter was not a credible witness and her testimony is not entitled to probative weight because she was merely coached into implicating him for the death of Jorge and her kidnapping and detention by Bermas. We find the contention of accusedappellant farcical. At the heart of the submission of accused-appellant is the credibility of Julie, the 12-year old principal witness of the prosecution and the probative weight of her testimony. This Court has held in a catena of cases that the findings of facts of the trial court, its calibration of the testimonial evidence of the parties, its assessment of the probative

weight of the collective evidence of the parties and its conclusions anchored on its findings are accorded by the appellate court great respect, if not conclusive effect. The raison d etre of this principle is that this Court has to contend itself with the mute pages of the original records in resolving the issues posed by the parties: x x x The record will not reveal those tell-tale signs that will affirm the truth or expose the contrivance, like the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply. The record will not show if the eyes have darted in evasion or looked down in confession or gazed steadily with a serenity that has nothing to distort or conceal. The record will not show if tears were shed in anger, or in shame, or in remembered pain, or in feigned innocence. Only the judge trying the case can see all these and on the basis of his observations arrive at an informed and reasoned verdict. [15] In contrast, the trial court has the unique advantage of monitoring and observing at close range the attitude, conduct and deportment of witnesses as they narrate their respective testimonies before said court. Echoing a foreign court s observation, this Court declared: Truth does not always stalk boldly forth naked, but modest withal, in a printed abstract in a court of last resort. She oft hides in nooks and crannies visible only to the mind s eye of the judge who tries the case. To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the calmness, the yawn, the

sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, the carriage and mien. The brazen face of the liar, the glibness of the schooled witness in reciting a lesson, or the itching overeagerness of the swift witness, as well as the honest face of the truthful one, are alone seen by him. [16] The rule, however, is not iron clad. This Court has enumerated exceptions thereto, namely: (a) when patent inconsistencies in the statements of witnesses are ignored by the trial court; (b) when the conclusions arrived at are clearly unsupported by the evidence; (c) when the trial court ignored, misunderstood, misinterpreted and/or misconstrued facts and circumstances of substance which, if considered, will alter the outcome of the case.[17] In this case, the trial court found the youthful Julie credible and her testimony entitled to full probative weight. Accusedappellant has not sufficiently demonstrated to this Court the application of any of the aforestated exceptions. The Court agrees with accusedappellant that the prosecution was burdened to prove his guilt beyond reasonable doubt of the felonies for which he is charged. This Court has held that accusation is not synonymous with guilt. It is incumbent on the prosecution to prove the corpus delicti, more specifically, that the crimes charged had been committed and that accused-appellant precisely committed the same. The prosecution must rely on the strength of its own evidence and not on the weakness of the evidence of the accused.[18] The reasonable

standard rule which was adopted by the United States way back in 1978 is a requirement and a safeguard, in the words of Mr. Justice Felix Frankfurter of the United States Supreme Court, of due process of law in the historic, procedural content of due process.  The United States Supreme Court emphasized in Re: Winship[19] that in a criminal prosecution, the accused has at stake interests of immense importance, both because of the possibility that he may lose his liberty or even his life upon conviction and because of the certainty that he would be stigmatized by the conviction. In the cases at bar, the prosecution failed to adduce direct evidence to prove that accused-appellant killed Jorge. However, the prosecution adduced indubitable proof that accused-appellant conspired with Bermas not only in killing Jorge but also in kidnapping and detaining Julie. Article 8 of the Revised Penal Code provides that there is conspiracy if two or more persons agree to commit a felony and decide to commit it. Conspiracy may be proved by direct evidence or circumstantial evidence. Conspiracy may be inferred from the acts of the accused, before, during and after the commission of a felony pointing to a joint purpose and design and community of intent.[20] It is not required that there be an agreement for an appreciable period prior to the commission of a felony; rather, it is sufficient that at the time of the commission of the offense, all the conspira`tors had the same purpose and were united in its execution.[21] In a conspiracy, the act of one is the

act of all.[22] All the accused are criminally liable as co-principals regardless of the degree of their participation.[23] For a conspirator to be criminally liable of murder or homicide, it is not necessary that he actually attacks or kills the victim. As long as all the conspirators performed specific acts with such closeness and coordination as to unmistakably indicate a common purpose or design in bringing about the death of the victim, all the conspirators are criminally liable for the death of said victim.[24] In these cases, the prosecution adduced conclusive proof that accused-appellant indeed conspired with Bermas to kill Jorge and kidnap Julie as shown by the following cogent facts and circumstances: When Julie responded to the repeated calls of Bermas for her to go to the kitchen on his pretext that Jorge wanted to talk to her, Julie saw accused-appellant and Bermas, each armed with a bolo, about half a meter from Jorge who was sprawled on the ground, bloodied all over.[25] Even as Julie fled from the kitchen for dear life to the sala of their house, accused-appellant and Bermas ran after her. Accusedappellant tied the hands of Julie with a piece of cloth and inserted a piece of cloth into her mouth to prevent her from shouting for help from their neighbors.[26] With a flashlight on hand, accusedappellant then exited from the house, dragged Julie towards the direction of the mountain while Bermas remained in the house to rummage through the things in the bedroom of her brothers. Accused-

appellant stopped for a while for Bermas to join him.[27] Before the killing of Jorge, accusedappellant and Bermas placed their clothing and personal belongings in a bag and buried the bag under a tree, and when accused-appellant and Bermas were on their way to the mountain after killing Jorge, they excavated and retrieved the bag from under the tree.[28] Accused-appellant and Bermas brought with them to the mountain a kettle filled with raw rice which they cooked in the forest.[29] When Julie saw uniformed men who were looking for her and wanted to shout for help, accused-appellant covered her mouth to prevent her from shouting for help.[30] Even after Bermas had left accusedappellant and Julie in the forest in the afternoon of February 23, 1991, accused-appellant continued detaining Julie in the forest until February 27, 1996, when he abandoned Julie in the forest to fend for herself. The evidence of the prosecution was even buttressed by the judicial admissions of accused-appellant, thus: After releasing Julie on February 27, 1996, accused-appellant proceeded to Puerto Princesa City and on to Brooke s Point where he was arrested a week after said date.[31] Both accused-appellant and Bermas had a motive to kill Jorge and kidnap Julie, that is, to avenge the repeated maltreatment and physical abuse on them by Julio Sr., the father of Jorge and Julie.[32]

The flight of both accused-appellant and Bermas from the house of Julio Sr. to the mountain where they found refuge after killing Jorge, and their motive to kill Jorge Jr. and kidnap and detain Julie in conjunto constitute potent evidence of their confabulation and of their guilt for the death of Jorge and kidnapping and detention of Julie.[33] The bare denial by accusedappellant of criminal liability for the crimes charged is inherently weak. Accused-appellant s claims that he even protected Julie from harm and that he was forced by Bermas to kidnap Julie are of the same genre.[34] The bare denial by accused-appellant of the crimes charged constitutes self-serving negative evidence which cannot prevail over the categorical and positive testimony of Julie and her unequivocal identification of accused-appellant as one of the perpetrators of the crimes charged.[35] Accused-appellant s insistence that he was forced by Bermas, under pain of death, to cooperate with him in killing Jorge and kidnapping and detaining Julie is merely an afterthought. For duress to exempt accused-appellant of the crimes charged, the fear must be wellfounded, and immediate and actual damages of death or great bodily harm must be present and the compulsion must be of such a character as to leave no opportunity to accused for escape or interpose self-defense in equal combat. [36] Accused-appellant is burdened to prove by clear and convincing evidence his defense of duress. He should not be shielded from prosecution for crime by

merely setting up a fear from, or because of, a threat of a third person. [37] As Lord Dennan declared in Reg. Vs. Tyler,[38] No man from fear of circumstances to himself has the right to make himself a party to committing mischief on mankind.  In these cases, in light of the testimony of Julie and the inculpatory acts of accusedappellant no less, there is no doubt that the latter acted in concert with Bermas and is himself a principal by direct participation. That accusedappellant abandoned Julie after six days of captivity does not lessen his criminal culpability much less exempt him from criminal liability for the killing of Jorge and the kidnapping and detention of Julie. Accused-appellant failed to prove his claim that Julie was coached on how and what to testify on. Indeed, when asked to identify the person or persons who coached Julie, accusedappellant failed to mention any person: Q You heard the testimony of Julie Camacho that she is pointing to you to have kidnapped her and participated in the killing of her brother Jorge, what can you say to that? A That is not true. Q You donot (sic) know the reason why? In fact you treated her well, why she pointed you as one of the authors of the crime? A Maybe somebody coached her.

Q Who do you think coached her? A I cannot mention the name but I am sure that somebody coached her. [39] It bears stressing that when she testified, Julie was merely 12 years old. The Court has repeatedly held that the testimony of a minor of tender age and of sound mind is likewise to be more correct and truthful than that of an older person so that once it is established that they have fully understood the character and nature of an oath, their testimony should be given full credence and probative weight.[40] Julie had no ill motive to tergiversate the truth and falsely testify against accused-appellant. Hence, her testimony must be accorded full probative weight.[41] VII. Crimes Committed by AccusedAppellant The Court shall now delve into and resolve the issue of what crime or crimes accused-appellant is guilty of. The trial court convicted accusedappellant of two separate crimes and not the special complex crime of kidnapping with murder or homicide under the last paragraph of Article 267 of the Revised Penal Code as amended by Republic Act 7659.[42] The trial court is correct. There is no evidence that Jorge was kidnapped or detained first by accused-appellant and Bermas before he was killed. The last paragraph of Article 267 of the Code is applicable only if kidnapping or serious illegal detention is committed and the victim is killed or dies as a consequence of the kidnapping or serious illegal detention.

Re: Criminal Case No. 12900 (For Murder) The trial court convicted accusedappellant of murder with the qualifying aggravating circumstance of evident premeditation, based on the following findings and ratiocination: The slaying of Jorge Camacho took place about 8:30 o clock in the evening of February 22, 1996. It was carried out after the accused have been through tidying-up the kitchen, the dining room and the kitchen wares the family of the Camachos used in their early dinner before 7:00 o clock that evening. But even before dinner, the accused have already made preparations for their flight, shown by the fact that they already had their clothes, other personal belongings and food provisions stacked in their respective travelling bags then placed in a spot where they can just pick them up as they take to flight. [43] The trial court also appreciated against accused-appellant the qualifying aggravating circumstance of abuse of superior strength with the following disquisition: The victim, Jorge Camacho, is a lad only 14 years of age and unarmed when brutally slain. On the contrary, both accused are of age and confirmed convicted felons. Any one of them would already be superior in strength and disposition to their hapless and innocent victim. How much more with the combined strength and force of the two of them. Their choice of the object of their brutality is indicative of their unmistakable intent of taking

advantage of their superior strength. The likely object of their resentment, for purported cruelty to them, is Prison Guard Julio Camacho, father of the victim. They could have directed their criminal intent on Julio Camacho himself. But Julio Camacho could be a match in strength and agility to any of them or even to the combined force of both of them. So, to insure execution of their criminal intent without risk to them for the defense which the offended party might put up, they directed their criminal acts against the deceased who is very much inferior in physical combat even only to any one of them. [44] While the Court agrees that accusedappellant is guilty of murder, it does not agree with the rulings of the trial court that the crime was qualified by evident premeditation and abuse of superior strength. To warrant a finding of evident premeditation, the prosecution must establish the confluence of the following requisites: x x x (a) the time when the offender determined to commit the crime; (b) an act manifestly indicating that the offender clung to his determination; and (c) a sufficient interval of time between the determination and the execution of the crime to allow him to reflect upon the consequences of his act. x x x [45] The qualifying aggravating circumstance of evident premeditation, like any other qualifying circumstance, must be proved with certainty as the crime itself. A finding of evident premeditation cannot be based solely on mere lapse of time from the time the malefactor has decided to commit a felony up to the time that he actually commits it.[46] The

prosecution must adduce clear and convincing evidence as to when and how the felony was planned and prepared before it was effected.[47] The prosecution is burdened to prove overt acts that after deciding to commit the felony, the felon clung to his determination to commit the crime. The law does not prescribe a time frame that must elapse from the time the felon has decided to commit a felony up to the time that he commits it. Each case must be resolved on the basis of the extant factual milieu. In this case, the prosecution failed to prove evident premeditation. The barefaced fact that accusedappellant and Bermas hid the bag containing their clothing under a tree located about a kilometer or so from the house of Julio Sr. does not constitute clear evidence that they decided to kill Jorge and kidnap Julie. It is possible that they hid their clothing therein preparatory to escaping from the colony. There is no evidence establishing when accused-appellant and Bermas hid the bag under the tree. The prosecution even failed to adduce any evidence of overt acts on the part of accused-appellant, nor did it present evidence as to when and how he and Bermas planned and prepared to kill Jorge and kidnap Julie and to prove that the two felons since then clung to their determination to commit the said crimes. Although accused-appellant and Bermas were armed with bolos, there is no evidence that they took advantage of their numerical superiority and weapons to kill Jorge. Hence, abuse of superior strength cannot be deemed to have attended the killing of Jorge.[48] Nighttime cannot likewise be

appreciated as an aggravating circumstance because there is no evidence that accused-appellant and Bermas purposely sought nighttime to facilitate the killing or to insure its execution or accomplishment or to evade their arrest.[49] Neither is dwelling aggravating because there is no evidence that Jorge was killed in their house or taken from their house and killed outside the said house. In light of the evidence on record, it is clear that the killing of Jorge was qualified by treachery. When Jorge was killed by accused-appellant and Bermas, he was barely 14 years old. The Court has previously held that the killing of minor children who by reason of their tender years could not be expected to put up a defense is attended by treachery.[50] Since treachery attended the killing, abuse of superior strength is absorbed by said circumstance.[51] The penalty for murder under Article 248 of the Revised Penal Code as amended by Republic Act 7659 is reclusion perpetua to death. There being no aggravating or mitigating circumstances in the commission of the crime, accusedappellant should be meted the penalty of reclusion perpetua.[52] Conformably with current jurisprudence, accused-appellant is hereby ordered to pay to the heirs of the victim civil indemnity in the amount of P50,000.00 and the amount of P50,000.00 by way of moral damages. Although Julio Sr. testified that he spent P45,000.00 during the wake and burial of the victim, the prosecution failed to adduce any receipts to prove the same. Hence, the award of P45,000.00 by way of actual

damages has no factual basis and should thus be deleted. Re: Criminal Case No. 12903 (For Kidnapping) The trial court convicted accusedappellant of kidnapping under Article 267 of the Revised Penal Code, as amended, punishable by reclusion perpetua to death. The trial court is correct. Article 267 of the Revised Penal Code was taken from Article 267 of the Spanish Penal Code, which reads: Art. 267 Detencin ilegal grave. Ser castigado con la pena de reclusin temporal el particular que secuestrare o encerrare a otro o en cualquier forma le privare de libertad.  Secuestrare  means sequestration.[53] To sequester is to separate for a special purpose, remove or set apart, withdraw from circulation.[54] It also means to lock-up or imprison. Encerrare  is a broader concept than secuestrare.[55] Encerrare includes not only the imprisonment of a person but also the deprivation of his liberty in whatever form and for whatever length of time. As explained by Groizard, encerrar  es meter una persona cosa en parte de donde no pueda salir ; detener o arrestar, poner en prisin, privar de la libertad alguno.  He continued that la detencin, la prisin, la privacin de la libertad de una persona, en cualquier forma y por cualquier medio por cualquier tiempo en virtud de la cual resulte interrumpido el libre ejercicio de su actividad. [56] On his commentary on the Spanish Penal Code, Cuello Calon says that

the law preve dos modalidades de privacion de libertad, el encierro y la detencion. Encerrar significa recluir a una persona en un lugar de donde no puede salir, detener a una persona equivale a impedirle o restringirle la libertad de movimiento. Para que el sujeto pasivo no quiera permanecer en el sitio donde esta recluido, pues no es posible llamar encierro ni detencion a la estancia de un a persona en lugar del que no quiere salir. [57] In this case, Julie, a minor, was not locked up. However, she was seized and taken from her house through force and dragged to the mountain. Since then, she was restrained of her liberty by and kept under the control of accused-appellant and Bermas. She was prevented from going back home for a period of about six days. Patently then, accused-appellant is guilty of kidnapping and illegally detaining Julie. The crime was aggravated by dwelling because Julie was taken from their house by accused-appellant and Bermas. However, dwelling was not alleged in the Information as an aggravating circumstance as required by Section 9, Rule 110 of the Revised Rules on Criminal Procedure which reads: SEC. 9. Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. [58] Even if dwelling is proven but is not alleged in the Information as an aggravating circumstance, the same

will not serve to aggravate the penalty.[59] Quasi-recidivism as defined in Article 160 of the Revised Penal Code[60] is alleged in both Informations. Accused-appellant is alleged to have committed murder and kidnapping while serving sentence in the penal colony by final judgment for the crime of homicide. Quasi-recidivism is a special aggravating circumstance.[61] The prosecution is burdened to prove the said circumstance by the same quantum of evidence as the crime itself. In the present case, to prove quasi-recidivism, the prosecution was burdened to adduce in evidence a certified copy of the judgment convicting accused-appellant of homicide and to prove that the said judgment had become final and executory.[62] The raison d etre is that: x x x Since the accusedappellant entered a plea of not guilty to such information, there was a joinder of issues not only as to his guilt or innocence, but also as to the presence or absence of the modifying circumstances so alleged. The prosecution was thus burdened to establish the guilt of the accused beyond reasonable doubt and the existence of the modifying circumstances. It was then grave error for the trial court to appreciate against the accused-appellant the aggravating circumstance of recidivism simply because of his failure to object to the prosecution s omission as mentioned earlier. [63] In this case, the prosecution adduced in evidence merely the excerpt of the prison record of accused-appellant showing that he was convicted of homicide in Criminal Case No.

10357-R by the Regional Trial Court of Baguio (Branch 6) with a penalty of from six years and one day as minimum to fourteen years, eight months and one day as maximum and that the sentence of accusedappellant commenced on November 19, 1992 and that the minimum term of the penalty was to expire on August 16, 1997.[64] The excerpt of the prison record of accusedappellant is not the best evidence under Section 3, Rule 130 of the Revised Rules of Court[65] to prove the judgment of the Regional Trial Court of Baguio City and to prove that said judgment had become final and executory. Said excerpt is merely secondary or substitutionary evidence which is inadmissible absent proof that the original of the judgment had been lost or destroyed or that the same cannot be produced without the fault of the prosecution. The barefaced fact that accusedappellant was detained in the penal colony does prove the fact that final judgment for homicide has been rendered against him.[66] There being no modifying circumstances in the commission of the crime, accused-appellant should be meted the penalty of reclusion perpetua conformably with Article 63 of the Revised penal Code.[67] VIII. Civil Liability of AccusedAppellant for Kidnapping and Serious Illegal Detention The trial court awarded the amount of P100,000.00 to Julie by way of moral damages for the felony of kidnapping with serious illegal detention, predicated on her having suffered serious anxiety and fright when she was kidnapped and dragged to the mountain where she was detained for several days. The

trial court is correct. Julie is entitled to moral damages.[67] In light of the factual milieu in this case, the amount is reasonable. Julie is also entitled to exemplary damages in the amount of P25,000.00.[68] IN LIGHT OF ALL THE FOREGOING, the decision of the Regional Trial Court is hereby AFFIRMED WITH MODIFICATION: In Criminal Case No. 12900, accusedappellant is found guilty beyond reasonable doubt of murder defined in Article 248 of the Revised Penal Code as amended and is hereby meted the penalty of reclusion perpetua, there being no modifying circumstances attendant to the commission of the felony. Accusedappellant is hereby ordered to pay to the heirs of the victim the amount of P50,000.00 as civil indemnity and the amount of P50,000.00 as of moral damages. The award of P45,000.00 as of actual damages is deleted. In Criminal Case No. 12903, accusedappellant is found guilty beyond reasonable doubt of kidnapping with serious illegal detention defined in Article 267 of the Revised Penal Code, as amended by Republic Act 7659, and there being no modifying circumstances attendant to the commission of the felony is hereby meted the penalty of reclusion perpetua. Accused-appellant is hereby ordered to pay moral damages to the victim, Julie Camacho, in the amount of P100,000.00 and exemplary damages in the amount of P25,000.00. SO ORDERED.

SECOND DIVISION [G.R. No. 149275, September 27, 2004] VICKY C. TY, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT. DECISION TINGA, J.: Petitioner Vicky C. Ty ( Ty ) filed the instant Petition for Review under Rule 45, seeking to set aside the Decision[1] of the Court of Appeals Eighth Division in CA-G.R. CR No. 20995, promulgated on 31 July 2001. The Decision affirmed with modification the judgment of the Regional Trial Court (RTC) of Manila, Branch 19, dated 21 April 1997, finding her guilty of seven (7) counts of violation of Batas Pambansa Blg. 22[2] (B.P. 22), otherwise known as the Bouncing Checks Law. This case stemmed from the filing of seven (7) Informations for violation of B.P. 22 against Ty before the RTC of Manila. The Informations were docketed as Criminal Cases No. 93130459 to No. 93-130465. The accusatory portion of the Information in Criminal Case No. 93130465 reads as follows: That on or about May 30, 1993, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously make or draw and issue to Manila Doctors Hospital to apply on account or for value to Editha L. Vecino Check No. Metrobank 487712 dated May 30, 1993 payable to Manila Doctors Hospital in the amount of P30,000.00, said accused

well knowing that at the time of issue she did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check when presented for payment within ninety (90) days from the date hereof, was subsequently dishonored by the drawee bank for Account Closed  and despite receipt of notice of such dishonor, said accused failed to pay said Manila Doctors Hospital the amount of the check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. Contrary to law.[3] The other Informations are similarly worded except for the number of the checks and dates of issue. The data are hereunder itemized as follows: Criminal Case No. Check No. Postdated Amount 93-130459 487710 30 March 1993 P30,000.00 93-130460 487711 30 April 1993 P30,000.00 93-130461 487709 01 March 1993 P30,000.00 93-130462 487707 30 December 1992 P30,000.00 93-130463 487706 30 November 1992 P30,000.00 93-130464 487708 30 January 1993 P30,000.00 93-130465 487712 30 May 1993 P30,000.00[4] The cases were consolidated and jointly tried. At her arraignment, Ty pleaded not guilty.[5]

The evidence for the prosecution shows that Ty s mother Chua Lao So Un was confined at the Manila Doctors Hospital (hospital) from 30 October 1990 until 4 June 1992. Being the patient s daughter, Ty signed the Acknowledgment of Responsibility for Payment  in the Contract of Admission dated 30 October 1990.[6] As of 4 June 1992, the Statement of Account[7] shows the total liability of the mother in the amount of P657,182.40. Ty s sister, Judy Chua, was also confined at the hospital from 13 May 1991 until 2 May 1992, incurring hospital bills in the amount of P418,410.55.[8] The total hospital bills of the two patients amounted to P1,075,592.95. On 5 June 1992, Ty executed a promissory note wherein she assumed payment of the obligation in installments.[9] To assure payment of the obligation, she drew several postdated checks against Metrobank payable to the hospital. The seven (7) checks, each covering the amount of P30,000.00, were all deposited on their due dates. But they were all dishonored by the drawee bank and returned unpaid to the hospital due to insufficiency of funds, with the Account Closed  advice. Soon thereafter, the complainant hospital sent demand letters to Ty by registered mail. As the demand letters were not heeded, complainant filed the seven (7) Informations subject of the instant case.[10] For her defense, Ty claimed that she issued the checks because of an uncontrollable fear of a greater injury.  She averred that she was forced to issue the checks to obtain release for her mother whom the

hospital inhumanely and harshly treated and would not discharge unless the hospital bills are paid. She alleged that her mother was deprived of room facilities, such as the air-condition unit, refrigerator and television set, and subject to inconveniences such as the cutting off of the telephone line, late delivery of her mother s food and refusal to change the latter s gown and bedsheets. She also bewailed the hospital s suspending medical treatment of her mother. The debasing treatment,  she pointed out, so affected her mother s mental, psychological and physical health that the latter contemplated suicide if she would not be discharged from the hospital. Fearing the worst for her mother, and to comply with the demands of the hospital, Ty was compelled to sign a promissory note, open an account with Metrobank and issue the checks to effect her mother s immediate discharge.[11] Giving full faith and credence to the evidence offered by the prosecution, the trial court found that Ty issued the checks subject of the case in payment of the hospital bills of her mother and rejected the theory of the defense.[12] Thus, on 21 April 1997, the trial court rendered a Decision finding Ty guilty of seven (7) counts of violation of B.P. 22 and sentencing her to a prison term. The dispositive part of the Decision reads: CONSEQUENTLY, the accused Vicky C. Ty, for her acts of issuing seven (7) checks in payment of a valid obligation, which turned unfounded on their respective dates of maturity, is found guilty of seven (7) counts of violations of Batas Pambansa Blg. 22,

and is hereby sentenced to suffer the penalty of imprisonment of SIX MONTHS per count or a total of forty-two (42) months. SO ORDERED.[13] Ty interposed an appeal from the Decision of the trial court. Before the Court of Appeals, Ty reiterated her defense that she issued the checks under the impulse of an uncontrollable fear of a greater injury or in avoidance of a greater evil or injury.  She also argued that the trial court erred in finding her guilty when evidence showed there was absence of valuable consideration for the issuance of the checks and the payee had knowledge of the insufficiency of funds in the account. She protested that the trial court should not have applied the law mechanically, without due regard to the principles of justice and equity.[14] In its Decision dated 31 July 2001, the appellate court affirmed the judgment of the trial court with modification. It set aside the penalty of imprisonment and instead sentenced Ty to pay a fine of sixty thousand pesos (P60,000.00) equivalent to double the amount of the check, in each case. [15] In its assailed Decision, the Court of Appeals rejected Ty s defenses of involuntariness in the issuance of the checks and the hospital s knowledge of her checking account s lack of funds. It held that B.P. 22 makes the mere act of issuing a worthless check punishable as a special offense, it being a malum prohibitum. What the law punishes is the issuance of a bouncing check and not the purpose for which it was

issued nor the terms and conditions relating to its issuance.[16] Neither was the Court of Appeals convinced that there was no valuable consideration for the issuance of the checks as they were issued in payment of the hospital bills of Ty s mother.[17] In sentencing Ty to pay a fine instead of a prison term, the appellate court applied the case of Vaca v. Court of Appeals[18] wherein this Court declared that in determining the penalty imposed for violation of B.P. 22, the philosophy underlying the Indeterminate Sentence Law should be observed, i.e., redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness, with due regard to the protection of the social order.[19] Petitioner now comes to this Court basically alleging the same issues raised before the Court of Appeals. More specifically, she ascribed errors to the appellate court based on the following grounds: THERE IS CLEAR AND CONVINCING EVIDENCE THAT PETITIONER WAS FORCED TO OR COMPELLED IN THE OPENING OF THE ACCOUNT AND THE ISSUANCE OF THE SUBJECT CHECKS. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF AN UNCONTROLLABLE FEAR OF A GREATER INJURY OR IN AVOIDANCE OF A GREATER EVIL OR INJURY. THE EVIDENCE ON RECORD PATENTLY SHOW[S] ABSENCE OF

VALUABLE CONSIDERATION IN THE ISSUANCE OFTHE SUBJECT CHECKS. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE CHECKS WAS FULLY AWARE OF THE LACK OF FUNDS IN THE ACCOUNT. THE HONORABLE COURT OF APPEALS, AS WELL AS THE HONORABLE TRIAL COURT [,] SHOULD NOT HAVE APPLIED CRIMINAL LAW MECHANICALLY, WITHOUT DUE REGARD TO THE PRINCIPLES OF JUSTICE AND EQUITY. In its Memorandum,[20] the Office of the Solicitor General (OSG), citing jurisprudence, contends that a check issued as an evidence of debt, though not intended to be presented for payment, has the same effect as an ordinary check; hence, it falls within the ambit of B.P. 22. And when a check is presented for payment, the drawee bank will generally accept the same, regardless of whether it was issued in payment of an obligation or merely to guarantee said obligation. What the law punishes is the issuance of a bouncing check, not the purpose for which it was issued nor the terms and conditions relating to its issuance. The mere act of issuing a worthless check is malum prohibitum.[21] We find the petition to be without merit and accordingly sustain Ty s conviction. Well-settled is the rule that the factual findings and conclusions of the trial court and the Court of Appeals are entitled to great weight and respect, and will not be disturbed on appeal in the absence of any clear showing that the trial

court overlooked certain facts or circumstances which would substantially affect the disposition of the case.[22] Jurisdiction of this Court over cases elevated from the Court of Appeals is limited to reviewing or revising errors of law ascribed to the Court of Appeals whose factual findings are conclusive, and carry even more weight when said court affirms the findings of the trial court, absent any showing that the findings are totally devoid of support in the record or that they are so glaringly erroneous as to constitute serious abuse of discretion.[23] In the instant case, the Court discerns no compelling reason to reverse the factual findings arrived at by the trial court and affirmed by the Court of Appeals. Ty does not deny having issued the seven (7) checks subject of this case. She, however, claims that the issuance of the checks was under the impulse of an uncontrollable fear of a greater injury or in avoidance of a greater evil or injury. She would also have the Court believe that there was no valuable consideration in the issuance of the checks. However, except for the defense s claim of uncontrollable fear of a greater injury or avoidance of a greater evil or injury, all the grounds raised involve factual issues which are best determined by the trial court. And, as previously intimated, the trial court had in fact discarded the theory of the defense and rendered judgment accordingly. Moreover, these arguments are a mere rehash of arguments unsuccessfully raised before the trial

court and the Court of Appeals. They likewise put to issue factual questions already passed upon twice below, rather than questions of law appropriate for review under a Rule 45 petition. The only question of law raised whether the defense of uncontrollable fear is tenable to warrant her exemption from criminal liability has to be resolved in the negative. For this exempting circumstance to be invoked successfully, the following requisites must concur: (1) existence of an uncontrollable fear; (2) the fear must be real and imminent; and (3) the fear of an injury is greater than or at least equal to that committed.[24] It must appear that the threat that caused the uncontrollable fear is of such gravity and imminence that the ordinary man would have succumbed to it.[25] It should be based on a real, imminent or reasonable fear for one s life or limb.[26] A mere threat of a future injury is not enough. It should not be speculative, fanciful, or remote.[27] A person invoking uncontrollable fear must show therefore that the compulsion was such that it reduced him to a mere instrument acting not only without will but against his will as well.[28] It must be of such character as to leave no opportunity to the accused for escape.[29] In this case, far from it, the fear, if any, harbored by Ty was not real and imminent. Ty claims that she was compelled to issue the checks a condition the hospital allegedly demanded of her before her mother could be discharged for fear that

her mother s health might deteriorate further due to the inhumane treatment of the hospital or worse, her mother might commit suicide. This is speculative fear; it is not the uncontrollable fear contemplated by law. To begin with, there was no showing that the mother s illness was so life-threatening such that her continued stay in the hospital suffering all its alleged unethical treatment would induce a wellgrounded apprehension of her death. Secondly, it is not the law s intent to say that any fear exempts one from criminal liability much less petitioner s flimsy fear that her mother might commit suicide. In other words, the fear she invokes was not impending or insuperable as to deprive her of all volition and to make her a mere instrument without will, moved exclusively by the hospital s threats or demands. Ty has also failed to convince the Court that she was left with no choice but to commit a crime. She did not take advantage of the many opportunities available to her to avoid committing one. By her very own words, she admitted that the collateral or security the hospital required prior to the discharge of her mother may be in the form of postdated checks or jewelry.[30] And if indeed she was coerced to open an account with the bank and issue the checks, she had all the opportunity to leave the scene to avoid involvement. Moreover, petitioner had sufficient knowledge that the issuance of checks without funds may result in a violation of B.P. 22. She even

testified that her counsel advised her not to open a current account nor issue postdated checks because the moment I will not have funds it will be a big problem. [31] Besides, apart from petitioner s bare assertion, the record is bereft of any evidence to corroborate and bolster her claim that she was compelled or coerced to cooperate with and give in to the hospital s demands. Ty likewise suggests in the prefatory statement of her Petition and Memorandum that the justifying circumstance of state of necessity under par. 4, Art. 11 of the Revised Penal Code may find application in this case. We do not agree. The law prescribes the presence of three requisites to exempt the actor from liability under this paragraph: (1) that the evil sought to be avoided actually exists; (2) that the injury feared be greater than the one done to avoid it; (3) that there be no other practical and less harmful means of preventing it.[32] In the instant case, the evil sought to be avoided is merely expected or anticipated. If the evil sought to be avoided is merely expected or anticipated or may happen in the future, this defense is not applicable.[33] Ty could have taken advantage of an available option to avoid committing a crime. By her own admission, she had the choice to give jewelry or other forms of security instead of postdated checks to secure her obligation. Moreover, for the defense of state of necessity to be availing, the greater injury feared should not have been

brought about by the negligence or imprudence, more so, the willful inaction of the actor.[34] In this case, the issuance of the bounced checks was brought about by Ty s own failure to pay her mother s hospital bills. The Court also thinks it rather odd that Ty has chosen the exempting circumstance of uncontrollable fear and the justifying circumstance of state of necessity to absolve her of liability. It would not have been half as bizarre had Ty been able to prove that the issuance of the bounced checks was done without her full volition. Under the circumstances, however, it is quite clear that neither uncontrollable fear nor avoidance of a greater evil or injury prompted the issuance of the bounced checks. Parenthetically, the findings of fact in the Decision of the trial court in the Civil Case[35] for damages filed by Ty s mother against the hospital is wholly irrelevant for purposes of disposing the case at bench. While the findings therein may establish a claim for damages which, we may add, need only be supported by a preponderance of evidence, it does not necessarily engender reasonable doubt as to free Ty from liability. As to the issue of consideration, it is presumed, upon issuance of the checks, in the absence of evidence to the contrary, that the same was issued for valuable consideration.[36] Section 24[37] of the Negotiable Instruments Law creates a presumption that every party to an instrument acquired the same for a consideration[38] or for value.[39] In alleging otherwise, Ty has the onus to prove that the checks

were issued without consideration. She must present convincing evidence to overthrow the presumption. A scrutiny of the records reveals that petitioner failed to discharge her burden of proof. Valuable consideration may in general terms, be said to consist either in some right, interest, profit, or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss or some responsibility, to act, or labor, or service given, suffered or undertaken by the other aide. Simply defined, valuable consideration means an obligation to give, to do, or not to do in favor of the party who makes the contract, such as the maker or indorser. [40] In this case, Ty s mother and sister availed of the services and the facilities of the hospital. For the care given to her kin, Ty had a legitimate obligation to pay the hospital by virtue of her relationship with them and by force of her signature on her mother s Contract of Admission acknowledging responsibility for payment, and on the promissory note she executed in favor of the hospital. Anent Ty s claim that the obligation to pay the hospital bills was not her personal obligation because she was not the patient, and therefore there was no consideration for the checks, the case of Bridges v. Vann, et al.[41] tells us that it is no defense to an action on a promissory note for the maker to say that there was no consideration which was beneficial to him personally; it is sufficient if

the consideration was a benefit conferred upon a third person, or a detriment suffered by the promisee, at the instance of the promissor. It is enough if the obligee foregoes some right or privilege or suffers some detriment and the release and extinguishment of the original obligation of George Vann, Sr., for that of appellants meets the requirement. Appellee accepted one debtor in place of another and gave up a valid, subsisting obligation for the note executed by the appellants. This, of itself, is sufficient consideration for the new notes.  At any rate, the law punishes the mere act of issuing a bouncing check, not the purpose for which it was issued nor the terms and conditions relating to its issuance.[42] B.P. 22 does not make any distinction as to whether the checks within its contemplation are issued in payment of an obligation or to merely guarantee the obligation.[43] The thrust of the law is to prohibit the making of worthless checks and putting them into circulation.[44] As this Court held in Lim v. People of the Philippines,[45] what is primordial is that such issued checks were worthless and the fact of its worthlessness is known to the appellant at the time of their issuance, a required element under B.P. Blg. 22.  The law itself creates a prima facie presumption of knowledge of insufficiency of funds. Section 2 of B.P. 22 provides: Section 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a check payment of which is refused by the drawee bank because of insufficient funds in or credit with such bank,

when presented within ninety (90) days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee. Such knowledge is legally presumed from the dishonor of the checks for insufficiency of funds.[46] If not rebutted, it suffices to sustain a conviction.[47] Petitioner likewise opines that the payee was aware of the fact that she did not have sufficient funds with the drawee bank and such knowledge necessarily exonerates her liability. The knowledge of the payee of the insufficiency or lack of funds of the drawer with the drawee bank is immaterial as deceit is not an essential element of an offense penalized by B.P. 22. The gravamen of the offense is the issuance of a bad check, hence, malice and intent in the issuance thereof is inconsequential.[48] In addition, Ty invokes our ruling in Magno v. Court of Appeals[49] wherein this Court inquired into the true nature of transaction between the drawer and the payee and finally acquitted the accused, to persuade the Court that the circumstances surrounding her case deserve special attention and do not warrant a strict and mechanical application of the law.

Petitioner s reliance on the case is misplaced. The material operative facts therein obtaining are different from those established in the instant petition. In the 1992 case, the bounced checks were issued to cover a warranty deposit  in a lease contract, where the lessorsupplier was also the financier of the deposit. It was a modus operandi whereby the supplier was able to sell or lease the goods while privately financing those in desperate need so they may be accommodated. The maker of the check thus became an unwilling victim of a lease agreement under the guise of a lease-purchase agreement. The maker did not benefit at all from the deposit, since the checks were used as collateral for an accommodation and not to cover the receipt of an actual account or credit for value. In the case at bar, the checks were issued to cover the receipt of an actual account or for value.  Substantial evidence, as found by the trial court and Court of Appeals, has established that the checks were issued in payment of the hospital bills of Ty s mother. Finally, we agree with the Court of Appeals in deleting the penalty of imprisonment, absent any proof that petitioner was not a first-time offender nor that she acted in bad faith. Administrative Circular 122000,[50] adopting the rulings in Vaca v. Court of Appeals[51] and Lim v. People,[52] authorizes the nonimposition of the penalty of imprisonment in B.P. 22 cases subject to certain conditions. However, the Court resolves to modify the penalty in view of Administrative Circular 13-2001[53]

which clarified Administrative 122000. It is stated therein: The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg. 22. Thus, Administrative Circular 122000 establishes a rule of preference in the application of the penal provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. Needless to say, the determination of whether circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should the judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000 ought not be deemed a hindrance. It is therefore understood that: (1) Administrative Circular 12-2000 does not remove imprisonment as an alternative penalty for violations of B.P. 22; (2) the judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice, or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice; (3) should only a fine be imposed and the accused unable to pay the fine, there is no legal

obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment.[54] WHEREFORE, the instant Petition is DENIED and the assailed Decision of the Court of Appeals, dated 31 July 2001, finding petitioner Vicky C. Ty GUILTY of violating Batas Pambansa Bilang 22 is AFFIRMED with MODIFICATIONS. Petitioner Vicky C. Ty is ORDERED to pay a FINE equivalent to double the amount of each dishonored check subject of the seven cases at bar with subsidiary imprisonment in case of insolvency in accordance with Article 39 of the Revised Penal Code. She is also ordered to pay private complainant, Manila Doctors Hospital, the amount of Two Hundred Ten Thousand Pesos (P210,000.00) representing the total amount of the dishonored checks. Costs against the petitioner. SO ORDERED.

SECOND DIVISION [G.R. No. 186420, August 25, 2009] PEOPLE OF THE PHILIPPINES, APPELLEE, VS. SAMUEL ANOD, APPELLANT. RESOLUTION NACHURA, J.: Before this Court is an Appeal,[1] assailing the Court of Appeals (CA) Decision[2] dated August 27, 2008 which affirmed with modification the Decision[3] dated July 3, 2001 of the Regional Trial Court (RTC) of Bislig, Surigao del Sur, Branch 29, finding appellant Samuel Anod (appellant) and his co-accused Lionel Lumbayan (Lumbayan) guilty beyond reasonable doubt of the crime of Murder committed against Erlando Costan (Costan). The Facts Appellant and Lumbayan were charged with the crime of Murder in an Information dated June 23, 1997 which reads: That on or about 10:30 o'clock (sic) in the evening, more or less, of May 16, 1997, at Purok 1, [B]arangay Borbonan, [M]unicipality of Bislig, [P]rovince of Surigao del Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named [appellant] conspiring, confederating and mutually helping one another for a common purpose, with intent to kill, treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault[,] stab and hack one Erlando Costan with the use of a

pointed bolo, thereby inflicting upon the latter multiple stab and hack wounds which cause[d] his instantaneous death, to the damage and prejudice of the heirs of the said Costan. CONTRARY TO LAW: In violation of Article 248 of the Revised Penal Code.[4] During the arraignment on November 12, 1997, appellant and Lumbayan entered pleas of "not guilty" to the crime charged. Thereafter, trial on the merits ensued. In the course of the trial, two varying versions arose. Version of the Prosecution Before midnight of May 16, 1997, the victim, Costan, was stabbed and hacked to death in his house situated in Barangay Borbonan,[5] Bislig, Surigao del Sur (Borbonan). His body was found by Miguel Platil. The following day, May 17, 1997, appellant and Lumbayan surrendered to Andromeda Perater, Barangay Chairperson of Borbonan (Barangay Chairperson), before whom they admitted the killing of Costan. On May 18, 1997, appellant and Lumbayan were brought to the police station. The Barangay Chairperson testified before the RTC that appellant narrated and admitted to her that he and Lumbayan killed Costan. This narration of facts was entered in the Barangay Logbook, duly signed by appellant and Lumbayan, and authenticated by two (2) other witnesses. Version of the Defense

Appellant averred that at around 7 p.m. of May 16, 1997, he and Lumbayan were having a drinking spree in the store of one Dodoy Advincula in Borbonan where they were joined by a certain Angges. An hour later, appellant asked his companions to go home. On their way home and upon reaching a dark place, Lumbayan suddenly stabbed Angges. He then invited appellant to sleep at the house of Lumbayan's aunt. Subsequently, however, Lumbayan told appellant that they would spend the night at Costan's house. Upon reaching Costan's house, Lumbayan called for the victim. Costan opened the door for them and immediately thereafter, Lumbayan poked a knife at Costan and ordered appellant to tie the victim while the latter was lying down. He then ordered appellant to stab Costan. Out of fear of being stabbed by Lumbayan who, at the time, was poking a knife at appellant's breast, appellant stabbed Costan once at the back. Thereafter, appellant and Lumbayan went to the house of Lumbayan's aunt. They surrendered to the Barangay Chairperson allegedly upon the prodding of appellant. On the other hand, Lumbayan denied all the charges, claiming that he and appellant slept early on the night of the incident at his aunt's house. The following day, they were fetched and brought to the house of the Barangay Chairperson. The RTC's Ruling

On July 3, 2001, the RTC found appellant and Lumbayan guilty beyond reasonable doubt of the crime of Murder and sentenced them to suffer the penalty of reclusion perpetua and to pay the widow of Costan in the amount of P50,000.00 as damages. Only appellant interposed an appeal[6] assailing the RTC Decision. Accordingly, the case was elevated to this Court on automatic review. However, in our Resolution[7] dated September 6, 2004, and pursuant to our ruling in People v. Mateo, the case was transferred to the CA. The CA's Ruling In its Decision dated August 27, 2008, the CA affirmed the factual findings of the RTC with modification, imposing upon appellant the penalty of reclusion perpetua without eligibility for parole and ordering him to pay the heirs of Costan the amount of P75,000.00 as civil indemnity, P50,000.00 as moral damages, P25,000.00 as exemplary damages, and P25,000.00 as actual damages. Aggrieved, appellant appealed. In their respective Manifestations filed before this Court, appellant, as represented by the Public Attorney's Office, and the Office of the Solicitor General (OSG) opted to adopt their respective Briefs filed before the CA as their Supplemental Briefs. Hence, this Appeal with the following assignment of errors: I.

ASSUMING WITHOUT ADMITTING THAT APPELLANT'S CULPABILITY WAS PROVEN BEYOND REASONABLE DOUBT, THE COURT A QUO GRAVELY ERRED IN NOT CONSIDERING THE EXEMPTING CIRCUMSTANCES OF IRRESISTIBLE FORCE AND UNCONTROLLABLE FEAR. II. THE COURT A QUO GRAVELY ERRED IN APPRECIATING TREACHERY AND EVIDENT PREMEDITATION AS QUALIFYING CIRCUMSTANCES.[8] Appellant argues that he blindly obeyed Lumbayan and stabbed Costan, an act that was against his will and done under the compulsion of an irresistible force and uncontrollable fear for his life. Moreover, appellant contends that the qualifying circumstances of evident premeditation and treachery were not proven beyond reasonable doubt. Except for the testimony of the Barangay Chairperson which did not prove these qualifying circumstances, no other witness was presented to corroborate the same.[9] On the other hand, the OSG opines that the force supposedly exerted upon appellant was not sufficient to exempt him from criminal liability. Apart from initially refusing Lumbayan's order, as appellant alleged, he did not offer any protest or objection to the said order. Appellant could have easily evaded Lumbayan, or he could have defended himself in equal combat as he himself was armed with a knife. The OSG claims that, while it may be conceded that evident premeditation was not adequately proven,

treachery was, however, duly established. Thus, the crime committed was murder.[10] Our Ruling We dismiss the appeal. Appellant failed to sufficiently show that the CA committed any reversible error in its assailed Decision. Under Article 12 of the Revised Penal Code, a person is exempt from criminal liability if he acts under the compulsion of an irresistible force, or under the impulse of an uncontrollable fear of equal or greater injury, because such person does not act with freedom. However, we held that for such a defense to prosper, the duress, force, fear, or intimidation must be present, imminent and impending, and of such nature as to induce a well-grounded apprehension of death or serious bodily harm if the act be done. A threat of future injury is not enough. In this case, as correctly held by the CA, based on the evidence on record, appellant had the chance to escape Lumbayan's threat or engage Lumbayan in combat, as appellant was also holding a knife at the time. Thus, appellant's allegation of fear or duress is untenable. We have held that in order for the circumstance of uncontrollable fear may apply, it is necessary that the compulsion be of such a character as to leave no opportunity for escape or selfdefense in equal combat.[11] Therefore, under the circumstances, appellant's alleged fear, arising from the threat of Lumbayan, would not suffice to exempt him from incurring criminal liability.

Indubitably, the killing of the victim was attended by treachery. Treachery exists when the offender commits a crime against persons, employing means, methods or forms in the execution thereof which tend, directly and specifically, to ensure its execution, without risk to himself arising from any defense or retaliatory act which the victim might make. Here, appellant tied Costan while the latter was lying down before he and Lumbayan stabbed the latter to death; thus, ensuring the execution of the crime without risk to themselves. Obviously, Costan could not flee for his life or retaliate. This aggravating circumstance qualifies the crime to murder.[12] We apply the cardinal rule that factual findings of the trial court, its calibration of the testimonies of the witnesses, and its conclusions anchored on its findings are accorded with great respect, if not conclusive effect, more so when affirmed by the CA. The exception is when it is established that the trial court ignored, overlooked, misconstrued, or misinterpreted cogent facts and circumstances that, if considered, would change the outcome of the case. We have reviewed the records of the RTC and the CA and we find no reason to deviate from the lower courts' findings and their uniform conclusion that appellant is indeed guilty beyond reasonable doubt of the crime of murder.[13] As to damages, we held in People of the Philippines v. Judito Molina and John Doe, and Joselito Tagudar,[14] that when death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex

delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate damages. Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the commission of the crime. In this regard, however, we reduce the award made by the CA, from P75,000.00 to P50,000.00. It is worth stressing that, at the outset, the appellant, together with Lumbayan, was sentenced by the RTC to suffer the penalty of reclusion perpetua. Thus, the CA's reliance on our ruling in People v. dela Cruz[15] was misplaced. In dela Cruz, this Court cited our ruling in People v. Tubongbanua,[16] wherein we held that the civil indemnity imposed should be P75,000.00. However, the instant case does not share the same factual milieu as dela Cruz and Tubongbanua. In the said cases, at the outset, the accused were sentenced to suffer the penalty of death. However, in view of the enactment of Republic Act No. 9346 or the Act Prohibiting the Imposition of the Death Penalty on June 24, 2006, the penalty meted to the accused was reduced to reclusion perpetua. This jurisprudential trend was followed in the recent case of People of the Philippines v. Generoso Rolida y Moreno, etc.,[17] where this Court also increased the civil indemnity from P50,000.00 to P75,000.00. Based on the foregoing disquisitions and the current applicable jurisprudence, we hereby reduce the civil indemnity awarded herein to P50,000.00.[18] We affirm all the other awards made by the CA.

WHEREFORE, the appealed Decision dated August 27, 2008 of the Court of Appeals in CA-G.R. CR-H.C. No. 00195, finding appellant Samuel Anod guilty of the crime of murder and sentencing him to suffer the penalty of reclusion perpetua is AFFIRMED with MODIFICATION in that the award of civil indemnity of P75,000.00 is reduced to P50,000.00. In all other respects, the assailed Decision is AFFIRMED. SO ORDERED.

EN BANC [G.R. Nos. 140514-15, September 30, 2003] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JUNE IGNAS Y SANGGINO, ACCUSEDAPPELLANT. DECISION QUISUMBING, J.: In the amended decision[1] dated June 2, 1999, in Criminal Case No. 96-CR-2522, the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 8, found appellant June Ignas y Sanggino guilty of murder aggravated especially by the use of an unlicensed firearm. Appellant was initially sentenced to suffer the penalty of reclusion perpetua,[2] but on motion for reconsideration by the prosecution, the penalty was upgraded to death by lethal injection.[3] Hence, the case is now before us for automatic review. Appellant is an elementary school graduate. He resided at Cruz, La Trinidad, Benguet, where he operated a bakery.[4] He is married to Wilma Grace Ignas, by whom he has a son of minor age.[5] Wilma Grace used to be the cashier of Windfield Enterprise, which is owned by Pauline Gumpic.[6] Pauline had a brother, Nemesio Lopate. It was he whom appellant fatally shot. In the amended Information,[7] pursuant to Section 14, Rule 110[8] of the 1985 Rules of Criminal Procedure, the Provincial Prosecutor of Benguet charged appellant as follows:

That on or about the 10th day of March 1996 at Trading Post, Km. 5, Municipality of La Trinidad, Province of Benguet, Philippines, and within the jurisdiction of this Honorable Court, without any authority of law or without any lawful permit did then and there willfully, unlawfully and knowingly have in his possession, control and custody a Cal. .38 hand gun and two (2) ammunitions, (sic) which firearm and ammunitions were used by the accused in unlawfully killing NEMESIO LOPATE at the abovementioned place and date in violation of the said law. CONTRARY TO LAW.[9] Appellant was arraigned and pleaded not guilty to the foregoing amended information. The case then proceeded to be heard on the merits. Gleaned from the records, the facts of this case are as follows: Sometime in September 1995, appellant's wife, Wilma Grace Ignas, confided to her close friend, Romenda[10] Foyagao, that she was having an affair with Nemesio Lopate.[11] On the evening of October 16, 1995, Wilma Grace, Romenda, and Nemesio went to Manila. Romenda and Nemesio were sending off Wilma Grace at the Ninoy Aquino International Airport as she was leaving for Taiwan to work as a domestic helper. Upon arrival in Manila, the trio checked at Dangwa Inn, with Nemesio and Wilma Grace sharing a room.[12] All three of them stayed at the inn until October 18, 1995, when Wilma Grace left for Taiwan.[13]

Thereafter, Romenda received from Taiwan four letters written by Wilma Grace on various dates. Although all the letters were addressed to Romenda, two of them were meant by Wilma Grace to be read by her paramour, Nemesio.[14] In the other two letters, Wilma Grace instructed Romenda to reveal to appellant her affair with Nemesio. It was only sometime late in February 1996 that Romenda, following her bosom friend's written instructions, informed appellant about the extramarital affair between Wilma Grace and Nemesio. Romenda informed him that the two had spent a day and a night together in a room at Dangwa Inn in Manila.[15] Appellant became furious. He declared "Addan to aldaw na dayta nga Nemesio, patayek dayta nga Nemesio" (There will be a day for that Nemesio. I will kill that Nemesio).[16] Appellant then got all the letters of Wilma Grace from Romenda.[17] That same week Alfred Mayamnes, appellant's neighbor who was presented at the trial as a prosecution witness, had a talk with appellant. Mayamnes was an elder of the Kankanaey tribe to which appellant belonged. He wanted to confirm whether Nemesio Lopate, who was likewise from the same tribe, [18] was having an affair with appellant's spouse. Talk apparently had reached the tribal elders and they wanted the problem resolved as soon as possible.[19] A visibly angry appellant confirmed the gossip.[20] Mayamnes also testified that he advised Nemesio to stay at the Mountain Trail Kankanaey community until things had cooled down.[21]

Shortly after their talk, appellant closed down his bakeshop and offered his equipment for sale. Among the potential buyers he approached was Mayamnes, but the latter declined the offer.[22] Sometime during the first week of March, Mayamnes saw appellant load his bakery equipment on board a hired truck and depart for Nueva Vizcaya.[23] At around 10:00 p.m. of March 10, 1996, according to another prosecution witness, Annie Bayanes, a trader in vegetables, she was at the Trading Post, La Trinidad, Benguet.[24] The Trading Post is a popular depot where vegetable growers in the Cordilleras bring their produce late in the evenings for sale to wholesalers and retailers. Witness Bayanes said she was at the unloading area (bagsakan), conversing with another dealer at the latter's booth, when suddenly two gunshots shattered the quiet evening.[25] Bayanes turned towards the place where the sound of the gunshots came from. She testified that she saw a person falling to the ground.[26] Standing behind the fallen individual, some 16 inches away,[27] was another person who tucked a handgun into his waistband and casually walked away.[28] Initially, she only saw the gunman's profile, but when he turned, she caught a glimpse of his face.[29] She immediately recognized him as the appellant June Ignas. She said she was familiar with him as he was her townmate and had known him for several years. Witness Bayanes was

five or six meters away from the scene, and the taillight of a parked jeepney, which was being loaded with vegetables, plus the lights from the roof of the bagsakan, aided her recognition of appellant.[30] Also at the bagsakan area that night was prosecution witness Marlon Manis. He testified that on hearing gunshots from the Trading Post entrance, he immediately looked at the place where the gunfire came from. He saw people converging on a spot where a bloodied figure was lying on the ground.[31] Witness Manis saw that the fallen victim was Nemesio Lopate, whom he said he had known since Grade 2 in elementary school.[32] Manis then saw another person, some 25 meters away, hastily walking away from the scene. He could not see the person's face very well, but from his gait and build, he identified the latter as his close friend and neighbor, June Ignas.[33] Manis said that the scene was very dimly lit and the only illumination was from the lights of passing vehicles, but he was familiar with appellant's build, hairstyle, and manner of walking.[34] Prosecution witness Mona Barredo, a bakery worker, testified that she knew appellant. She said they were co-workers formerly at the Annaliza Bakery at Km. 10, Shilan, La Trinidad, Benguet.[35] Barredo declared that at around 10:30 p.m. of March 10, 1996, appellant came to her residence at Pico, La Trinidad. After being served refreshments, appellant took out a handgun from his jacket and removed the empty shells from the chamber.[36] Appellant then told her to throw the empty cartridges out of the window. Because of nervousness she

complied.[37] Barredo also said that appellant disclosed to her that he had just shot his wife's paramour.[38] Appellant then stayed at her house for 8 or 9 hours; he left only in the morning of March 11, 1996,[39] according to her. Police investigators later recovered the spent gun shells from witness Barredo's sweet potato garden.[40] According to witness on the scene, responding policemen immediately brought the victim, Nemesio Lopate, to the Benguet General Hospital where he was pronounced dead on arrival.[41] Dr. Doris C. Jovellanos, Municipal Health Officer of La Trinidad, Benguet, testified during that trial that she conducted the post-mortem examination of the victim's cadaver. Among her findings were: Ovaloid hole, 2.0 x 5.0 cm. dms., with blackened edges (1.8 x 1.3 cms. span), on the right side of the mouth, above the edge of the upper lip xxx Exit hole on the left side of the mouth, 5.0 x 1.3 cm. dms., with avulsion of the upper lip on the left side xxx Circular hole, penetrating, on the back, right side, 0.7 cm. x 0.7 cm. diam., with blackened edges (0.9 x 0.9 cm. span), at the level of the fifth intercostal space, subscapular area, 13 cm. from the midline, directed to the left side of the chest, 38.0 cm. from the embedded bullet slug of the left shoulder.[42] Dr. Jovellanos determined the cause of death to be "Hypovolemia due to gunshot wound, back, right, (Point of Entry - fifth intercostal space subscapular area)."[43] She further stated on the witness stand that she

recovered a bullet from the victim's left shoulder, which she turned over to the police investigators.[44] According to her, given the blackened edges of the gunshot wound at the victim's back, Nemesio was shot from a distance of less than three (3) feet.[45] On March 14, 1996, police investigators accompanied by one of appellant's brother as well as prosecution witness Julio Bayacsan, a friend of appellant, went to Kayapa, Nueva Vizcaya, to invite appellant to shed light on the slaying of Nemesio. The law enforcers found appellant selling bread at Kayapa and brought him back to La Trinidad, Benguet.[46] Witness Bayacsan testified that shortly after they arrived from Kayapa, he had an opportunity to talk with appellant at the La Trinidad Police Station. There, appellant disclosed to this witness that he shot and killed Nemesio.[47] Bayacsan, however, did not inform the police about appellant's revelation as he considered appellant his good friend.[48] Prosecution witness Pauline Gumpic, the victim's sister, testified that she and appellant had a private talk, while the latter was in police custody, and appellant admitted to her that he killed her brother.[49] Gumpic declared that appellant revealed to her that he shot Nemesio for having illicit relations with appellant's wife and failing to ask for his forgiveness.[50] SPO4 Arthur Bomagao[51] of the La Trinidad police, who headed the team that investigated the fatal shooting of Nemesio, declared on the

stand that appellant voluntarily admitted to him that he shot the victim with a .38 caliber handgun.[52] Bomagao further testified that appellant surrendered to him the letters of Wilma Grace, wherein the latter admitted her affair with Nemesio.[53] Appellant interposed the defense of alibi. Sometime during the last week of February 1996, he said, he entered into a partnership with a friend and fellow baker, Ben Anoma, to operate a bakery in Kayapa, Nueva Vizcaya.[54] Appellant claimed that he was having a hard time operating his bakeshop in La Trinidad as he had no helpers. When Anoma proposed a business arrangement, he added, he immediately seized the opportunity.[55] On March 8, 1996, he and Anoma then transferred his equipment to Anoma's bakery in Kayapa,[56] which is some four (4) to five (5) hours away from La Trinidad, according to appellant. He averred that he was baking bread with Anoma in Kayapa on the night Nemesio was killed.[57] Under oath, appellant said that he never left Kayapa since his arrival on March 8, 1996. He and Anoma were engrossed in baking and marketing their produce, he testified, until the policemen from La Trinidad brought him back to Benguet for questioning on March 14, 1996.[58] Defense witness Ben Anoma corroborated appellant's alibi. Anoma declared that during the last week of February 1996, he met with appellant in La Trinidad. There, the witness said, he proposed a partnership with appellant in the baking business to be based in Kayapa.[59] Appellant agreed and on

March 8, 1996, they transferred appellant's equipment to Kayapa.[60] They immediately commenced their operations and on the evening of March 10, 1996, he and appellant baked bread at his bakery in Kayapa until 11:00 p.m., when they rested for the night.[61] The trial court disbelieved appellant's defense and sustained the prosecution's version. Its initial judgment reads: WHEREFORE, premises considered, the accused June Ignas is hereby found GUILTY beyond reasonable doubt of the crime of MURDER as defined and penalized under Article 248 of the Revised Penal Code, and considering the aggravating circumstances of treachery, nighttime and the special aggravating circumstance of the use of an unlicensed firearm, without any mitigating circumstance, he is hereby sentenced to suffer the penalty of Reclusion Perpetua. He is further sentenced to pay the heirs of the VICTIM the following sums: P150,000.00 for funeral expenses and those incurred for and during the wake; P1,800,000.00 for unearned income; P50,000.00 as death compensation established by jurisprudence; and P50,000.00 as and for moral damages; and P20,000.00 as attorney's fees. Costs against the accused. SO ORDERED in Chambers this 18th day of February 1999 at La Trinidad, Benguet, Philippines.[62] Both the prosecution and the defense filed their respective

motions for reconsideration. The prosecution sought the imposition of the death penalty.[63] The defense prayed for acquittal on the ground of reasonable doubt. On June 2, 1999, the trial court granted the prosecution's motion. It amended its judgment to read as follows: WHEREFORE, premises considered, the accused June Ignas is hereby found GUILTY beyond reasonable doubt of the crime of MURDER as defined and penalized under Article 248 of the Revised Penal Code, and considering the aggravating circumstances of treachery, nighttime and the special aggravating circumstance of the use of an unlicensed firearm, without any mitigating circumstance, he is hereby sentenced to suffer the penalty of death by lethal injection. He is further sentenced to pay the heirs of the victim the following sums: P150,000.00 for funeral expenses and those incurred for and during the wake; P2,040,000.00 for unearned income; P50,000.00 as death compensation established by jurisprudence; and P50,000.00 as and for moral damages; and P20,000.00 as attorney's fees. Costs against the accused. SO ORDERED in Chambers.[64] Hence, this automatic review, with appellant imputing the following errors to the court a quo: I

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER DESPITE THE WEAKNESS OF THE CIRCUMSTANTIAL EVIDENCE OF THE PROSECUTION. II THE TRIAL COURT GRAVELY ERRED IN GIVING EVIDENTIARY WEIGHT TO THE ALLEGED EXTRA-JUDICIAL ADMISSIONS MADE BY ACCUSEDAPPELLANT DESPITE ITS BEING HEARSAY IN NATURE AND IN VIOLATION OF HIS RIGHTS UNDER CUSTODIAL INVESTIGATION. III THE TRIAL COURT GRAVELY ERRED IN NOT GIVING PROBATIVE VALUE TO THE DEFENSE OF ALIBI INTERPOSED BY ACCUSEDAPPELLANT. IV ASSUMING ARGUENDO THAT THE ACCUSED-APPELLANT IS GUILTY, THE TRIAL COURT GRAVELY ERRED WHEN IT RULED THAT THE KILLING OF THE DECEASED WAS ATTENDED BY EVIDENT PREMEDITATION, TREACHERY AND NIGHTTIME. V THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT APPRECIATED THE ALLEGED USE OF AN UNLICENSED .38 CALIBER FIREARM AS AN AGGRAVATING CIRCUMSTANCE IN THE COMMISSION OF THE CRIME OF

MURDER WITHOUT ANY FACTUAL AND LEGAL BASIS. VI THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID NOT APPRECIATE IN FAVOR OF THE ACCUSED-APPELLANT THE MITIGATING CIRCUMSTANCES OF IMMEDIATE VINDICATION OF A GRAVE OFFENSE, PASSION AND OBFUSCATION AND VOLUNTARY SURRENDER. VII THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT AWARDED EXCESSIVE DAMAGES IN THE FORM OF FUNERAL EXPENSES AND UNEARNED INCOME OF THE DECEASED WHICH WERE NOT SUFFICIENTLY PROVEN.[65] Appellant's assigned errors may be reduced to the following pertinent issues: (1) the nature of the crime committed, if any; (2) the sufficiency of the prosecution's evidence to prove appellant's guilt; (3) the correctness of the penalty; and (4) the propriety of the damages awarded. 1. Murder or Homicide Assuming arguendo that the evidence on record suffices to sustain the appellant's conviction for the unlawful killing of Nemesio Lopate, the question arises: Was the killing murder as found by the trial court or mere homicide? Note that the amended information under which the appellant stands charged does not, unlike the original information, charge appellant with murder but with mere "unlawful killing" albeit through the use of an

unlicensed firearm. Note further that the amended information does not definitely and categorically state that the "unlawful killing" was attended by the aggravating or qualifying circumstances of treachery, evident premeditation, and nocturnity. The 2000 Revised Rules of Criminal Procedure requires that the qualifying and aggravating circumstances must be specifically alleged in the information.[66] Although the Revised Rules of Criminal Procedure took effect only on December 1, 2000 or long after the fatal shooting of Nemesio Lopate, as a procedural rule favorable to the accused, it should be given retrospective application. Hence, absent specific allegations of the attendant circumstances of treachery, evident premeditation, and nocturnity in the amended information, it was error for the trial court to consider the same in adjudging appellant guilty of murder. As worded, we find that the amended information under which appellant was charged and arraigned, at best indicts him only for the crime of homicide. Any conviction should, thus, fall under the scope and coverage of Article 249[67] of the Revised Penal Code. As for the separate case for illegal possession of firearm, we agree with the trial court's order to dismiss the information for illegal possession of firearm and ammunition in Criminal Case No. 97-CR-2753.[68] Under R.A. No. 8294,[69] which took effect on July 8, 1997, where murder or homicide is committed with the use of an unlicensed firearm, the separate penalty for illegal possession of firearm shall no longer be imposed since it becomes merely

a special aggravating circumstance.[70] This Court has held in a number of cases[71] that there can be no separate conviction of the crime of illegal possession of firearm where another crime, as indicated by R.A. No. 8294, is committed. Although R.A. No. 8294 took effect over a year after the alleged offense was committed, it is advantageous to the appellant insofar as it spares him from a separate conviction for illegal possession of firearms and thus should be given retroactive application.[72] 2. Sufficiency of the Prosecution's Evidence But is the prosecution's evidence sufficient to sustain a conviction for homicide? Appellant primarily contests the accuracy of the identification made by the prosecution witnesses who testified that they saw him at the locus criminis, tucking a gun in his pants and casually walking away. For one, he contends that the prosecution witnesses who were present at the scene did not in fact see appellant as the person who allegedly shot the victim. Witness Marlon Manis was not certain that the person he saw walking away from the fallen victim was appellant. As per Manis' own admission, he merely presumed that it was appellant. As to witness Annie Bayanes, her identification of appellant as the assailant was equally doubtful. The fact is she did not see the alleged gunman's face, considering that the only illumination on the scene was a vehicle's taillight. Appellant stresses that both Bayanes and Manis were in

a state of excitement and nervousness as a result of the incident, hence the resultant commotion and fear distracted their powers of observation. Appellant insists that given these considerations, the testimonies of Bayanes and Manis failed to show that he was at the scene of the crime, much less prove that he was the gunman. For the appellee, the Office of the Solicitor General (OSG) contends that the failure of Manis to see the actual shooting is irrelevant, as such was not the purpose for which his testimony was offered in evidence. Rather, Manis' testimony was meant to provide circumstantial evidence tending to show the physical description of Nemesio's attacker, and not as an eyewitness' testimony to positively identify said assailant. Neither was Bayanes presented to testify as an eyewitness to the shooting, but to declare that she got a clear look at the face of the suspected gunman. We note that at the heart of the prosecution's case is the familiarity of Annie Bayanes and Marlon Manis with appellant. Absent this familiarity, the prosecution's theory that circumstantial evidence shows that appellant killed Nemesio would collapse like a house of cards. It was precisely this familiarity with appellant, which enabled said witnesses to recognize him as the person tucking a gun in his waistband and walking away from the fallen victim. Bayanes had known appellant for some ten (10) years before the incident and even described him as a "good man."[73] She was only five or six meters away from the scene of the crime and was

able to fully look at the face of the person tucking a gun in his pants and walking away. Familiarity with the physical features, particularly those of the face, is actually the best way to identify the person.[74] That the only illumination in the area came from the taillight of a parked vehicle and the lights on the roof of the bagsakan does not discredit her account. We have held that moonlight,[75] starlight,[76] kerosene lamps,[77] a flashlight,[78] and lights of passing vehicles[79] may be adequate to provide illumination sufficient for purposes of recognition and identification. Under the circumstances of these cases, this Court believes that Bayanes was in the position and had a fair opportunity to identify appellant as the person leaving the crime scene with a gun tucked in his waist. Her testimony was buttressed by that of witness Marlon Manis. A former neighbor of appellant, he had known appellant since 1993. He was a frequent customer at appellant's bakery. In the rural areas, people tend to be more familiar with their neighbors. This familiarity may extend to body movements, which cannot easily be effaced from memory. Hence, Manis' testimony that he could recognize appellant even just from his build and manner of walking is not improbable. His declaration that he was some twenty-five (25) meters away from the person walking away from the victim does not make recognition far-fetched. Once a person has gained familiarity with another, identification is an easy task, even from that distance.[80]

Evidence should only be considered for the purpose it was formally offered.[81] As the Solicitor General points out, the statements of Bayanes and Manis were not offered to positively identify appellant as the assailant, but to provide circumstantial evidence concerning Nemesio's assailant, tending to prove that appellant did shoot the victim. Thus, the court a quo committed no reversible error in giving weight and credence to the testimonies of Bayanes and Manis for the stated purposes therefor. Appellant next assails the testimonies of the following prosecution witnesses: (1) Pauline Gumpic for being inconsistent and flawed with contradictions; (2) Annie Bayanes and Julio Bayacsan for their unexplained delay in giving their respective sworn statements to the police; and (3) Mona Barredo for "flip-flopping" with respect to the alleged admission to her by appellant and how the police investigators knew about said admission, after she claimed that she did not tell anyone about his revelation. Appellant submits that the trial court erred in giving weight to the aforementioned testimonies. For appellee, the OSG argues that with respect to Gumpic's alleged contradictions, they refer only to unimportant and collateral matters; they do not affect her credibility. With respect to the delay or vacillation by Bayacsan and Bayanes in giving their statements to the authorities, the OSG points out that a reading of their declarations in court will show that the alleged delay was adequately explained. As to Barredo's testimony, a closer reading of her supposed "flip-

flopping" shows that the alleged contradictions were due to an honest misapprehension of fact on her part. When the issue boils down to the credibility of witnesses, the appellate court will not generally disturb the findings of the trial court because the latter is in the vantage position of observing witnesses through the various indicia of truthfulness or falsehood.[82] However, this rule is not absolute. One exception is where the judge who wrote the decision did not personally hear the prosecution's evidence.[83] In this case, the records show that Judge Angel V. Colet, who authored the assailed decision, took over from Judge Benigno M. Galacgac only on April 29, 1997 or after the witnesses for the prosecution had testified. It does not follow, however, that a judge who was not present at the trial cannot render a just and valid judgment. The records and the transcripts of stenographic notes are available to him as basis for his decision. After going over the transcripts of the witnesses' testimonies, we find no reason to disturb the findings of the trial court. With respect to the statements of Gumpic, we agree with the Solicitor General that alleged inconsistencies refer only to irrelevant and collateral matters, which have nothing to do with the elements of the crime. It is axiomatic that slight variations in the testimony of a witness as to minor details or collateral matters do not affect his or her credibility as these variations are in fact indicative of truth and show that the witness was not coached to fabricate or

dissemble.[84] An inconsistency, which has nothing to do with the elements of a crime, is not a ground to reverse a conviction.[85] We likewise find no basis for appellant's contention that Bayanes and Bayacsan failed to give a satisfactory explanation for the delay or vacillation in disclosing to the authorities what they knew. Bayanes gave a satisfactory reason for her delay in reporting to the authorities what she knew. She had simply gone about her normal business activities for some months, unaware that a case had been filed concerning the killing of Nemesio. It was only nine (9) months after the incident that she read a notice for help posted by the victim's relatives at the Trading Post, appealing to possible witnesses to the killing to come forth and assist them in their quest for justice. It was only then that she decided to reveal to the authorities what she knew. As to Bayacsan, he candidly admitted in court that he considered appellant his friend and he wanted to protect him and hence, he only disclosed appellant's admission to him when the police started questioning him. There is no rule that the suspect in a crime should immediately be named by a witness.[86] Different people react differently to a given situation and there is no standard form of human behavior when one is confronted with a strange, startling, or frightful experience.[87] The Court understands the natural reluctance or aversion of some people to get involved in a criminal case.[88] More so where, as in these cases, a townmate of Bayanes and Bayacsan is involved. We have taken notice that when their townmates

are involved in a criminal case, most people turn reticent.[89] Hence, the failure of Bayanes and Bayacsan to immediately volunteer information to the police investigators will not lessen the probative value of their respective testimonies. The delay, having been satisfactorily explained, has no effect on their credibility.[90] We have likewise closely scrutinized the testimony of Mona Barredo regarding the alleged admission by appellant to her that he killed the victim. We find nothing "flipflopping" about her testimony. Instead, we find a witness who admitted she was "nervous" that she might not be able to answer all the questions.[91] Said nervousness was engendered by her erroneous belief that to be a credible witness, she must have personal knowledge of the crime.[92] Even the most candid witnesses make mistakes and may give some contradictory or inconsistent statements, but such honest lapses need not necessarily affect their credibility. Ample margin should be accorded a witness who is tension-filled with the novelty of testifying before a court.[93] Appellant further contends that the trial court erred in giving credence to the verbal admissions of guilt he made to Gumpic and SPO4 Bomagao inside the police station since said admissions are inadmissible in evidence as uncounseled confessions. The OSG submits that said verbal admissions of complicity, as well as those made to appellant to Bayacsan and Barredo, are admissible as statements forming part of the res gestae. We agree on this point with the OSG.

The requisites of res gestae are: (1) the principal act or res gestae must be a startling occurrence; (2) the statement is spontaneous or was made before the declarant had time to contrive or devise a false statement, and the statement was made during the occurrence or immediately prior or subsequent to thereto; and (3) the statement made must concern the occurrence in question and its immediately attending circumstances.[94] All these elements are present in appellant's verbal admission to Barredo that he killed the victim when he went to the latter's house half an hour after the fatal shooting of Nemesio. The verbal admission by appellant to Barredo was made before appellant had the time and opportunity to contrive a falsehood. Similar statements have been held to be part of the res gestae: (1) a child's declaration made an hour after an alleged assault;[95] (2) the testimony of a police officer as to what the victim revealed to him some 30 minutes after the commission of an alleged crime;[96] and (3) a victim's declaration made some 5 to 10 minutes after an alleged felony took place.[97] Note that since appellant's admission was not solicited by police officers in the course of a custodial investigation, but was made to a private person, the provisions of the Bill of Rights on custodial investigation do not apply. The Rules of Court[98] provides that an admission made to a private person is admissible in evidence against the declarant.[99] Prosecution's evidence here is admittedly circumstantial. But in

the absence of an eyewitness, reliance on circumstantial evidence is inevitable.[100] Resort thereto is essential when the lack of direct evidence would result in setting a felon free.[101] Circumstantial evidence suffices to convict if the following requisites are met: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.[102] In our mind, the following pieces of circumstantial evidence show with moral certainty that appellant was responsible for the death of Nemesio: Appellant had the motive to kill Nemesio Lopate for having an affair with his wife, and appellant had openly expressed his desire and intention to do so; At around 10:00 p.m. of March 10, 1996, Annie Bayanes and Marlon Manis heard two gun shots at the Trading Post, La Trinidad, Benguet and saw Nemesio Lopate fall to the ground; Bayanes saw appellant behind the victim, tucking a gun into his waistband, and walking away; From another angle, Manis also saw a person whose gait and built resembled that of appellant walking away from the crime scene; At around 10:30 p.m. of March 10, 1996, appellant went to the house of Mona Barredo, brought out a handgun, emptied it of two spent .38 caliber shells and instructed Barredo

to throw the shells out of the window, which she did; Appellant then told Barredo that he had shot and killed his wife's paramour, after which he stayed at Barredo's house for the night; On March 11, 1996, Dr. Doris C. Jovellanos, Municipal Health Officer of La Trinidad, Benguet recovered a .38 caliber slug from Nemesio's corpse and found two (2) bullet entry wounds on the said cadaver; On March 18, 1996, police investigators, assisted by Barredo, recovered two (2) spent .38 caliber shells from Barredo's sweet potato patch, immediately outside her residence wherein appellant had slept a week before. The foregoing circumstances clearly show that appellant had the motive, the opportunity, and the means to commit the crime at the place and time in question. Simply put, the circumstantial evidence adduced by the prosecution has successfully overcome the claim of innocence by appellant. Under the proved circumstances, appellant's defense of alibi is untenable. More so, in this situation where prosecution witness Bayanes unflinchingly declared that she saw appellant standing behind the victim, tucking a gun in his pants, moments after the latter was shot. As we held in People v. Salveron,[103] and reiterated in People v. Sesbreo,[104] where an eyewitness saw the accused with a gun, seconds after the gunshot and after the victim fell to the ground, the reasonable conclusion is that said accused killed the victim. Appellant's alibi cannot prevail over the positive testimony of Bayanes

concerning appellant's identification and presence at the crime scene. Basic is the rule that for alibi to prosper, the accused must prove that he was somewhere else when the crime was committed and that it was physically impossible for him to have been at the scene of the crime.[105] Physical impossibility refers to the distance between the place where the appellant was when the crime transpired and the place where it was committed, as well as the facility of access between the two places.[106] In these cases, the defense admitted that the distance between La Trinidad, Benguet and Kayapa, Nueva Vizcaya is 79 kilometers, which can be negotiated in 4 or 5 hours.[107] Clearly, it was not physically impossible for appellant to be at the locus criminis at the time of the killing. Hence, the defense of alibi must fail. In sum, we find that the prosecution's evidence suffices to sustain the appellant's conviction for homicide. 3. Crime and its Punishment As appellant can only be convicted of homicide, it follows that he cannot, under the provisions of RA No. 7659, be sentenced to suffer the death penalty. The penalty for homicide under Article 249 of the Revised Penal Code is reclusion temporal. Our task now is to determine whether there are aggravating or mitigating circumstances which could modify the penalty. More specifically, may the special aggravating circumstance of use of an unlicensed firearm be taken against the appellant?

Appellant argues that the trial court erred in appreciating the special aggravating circumstance of use of unlicensed firearm in the present case. Like the killing, said aggravating circumstance must likewise be proved beyond reasonable doubt, says the appellant. On this point, he adds, the prosecution failed to adduce the necessary quantum of proof. We find merit in the appellant's contentions. It is not enough that the special aggravating circumstance of use of unlicensed firearm be alleged in the information, the matter must be proven with the same quantum of proof as the killing itself. Thus, the prosecution must prove: (1) the existence of the subject firearm; and (2) the fact that the accused who owned or possessed it does not have the corresponding license or permit to own or possess the same.[108] The records do not show that the prosecution presented any evidence to prove that appellant is not a duly licensed holder of a caliber .38 firearm. The prosecution failed to offer in evidence a certification from the Philippine National Police Firearms and Explosives Division to show that appellant had no permit or license to own or possess a .38 caliber handgun. Nor did it present the responsible police officer on the matter of licensing as a prosecution witness. Absent the proper evidentiary proof, this Court cannot validly declare that the special aggravating circumstance of use of unlicensed firearm was satisfactorily established by the prosecution. Hence such special circumstance cannot be considered for purposes of imposing the penalty in its maximum period.

Coming now to the obverse side of the case, is the appellant entitled to benefit from any mitigating circumstance? Appellant, firstly contends that assuming without admitting that he is guilty, the lower court should have considered at least the mitigating circumstance of immediate vindication of a grave offense as well as that of passion and obfuscation. Appellant points out that the victim's act of maintaining an adulterous relationship with appellant's wife constituted a grave offense to his honor, not to mention the shame, anguish, and anxiety he was subjected to. Even the mere sight of the victim must have triggered an uncontrollable emotional outburst on appellant's part, so that even a chance meeting caused in him an irresistible impulse powerful enough to overcome all reason and restraint. Secondly, appellant points out that the trial court failed to consider his voluntary surrender as a mitigating circumstance. The Solicitor General counters that there was literally no "immediate vindication" to speak of in this case. Appellant had sufficient time to recover his serenity following the discovery of his wife's infidelity. Nor could passion and obfuscation be appreciated in appellant's favor because the killing was not proximate to the time of the offense. Appellant became aware of the treatment offensive to his dignity as a husband and to the peace and tranquility of his home two weeks earlier. This interval between the revelation of his wife's adultery and the fatal shooting was ample and sufficient for reason and self-control

to reassert themselves in appellant's mind. As to the mitigating circumstance of voluntary surrender, the OSG stresses that his supposed surrender at Kayapa, Nueva Vizcaya was actually due to the efforts of law enforcers who came looking for him. There he did not resist, but lack of resistance alone is not tantamount to voluntary surrender, which denotes a positive act and not merely passive conduct. According to the OSG, for the mitigating circumstance of vindication of a grave offense to apply, the vindication must be "immediate." This view is not entirely accurate. The word "immediate" in the English text is not the correct translation of the controlling Spanish text of the Revised Penal Code, which uses the word "proxima."[109] The Spanish text, on this point, allows a lapse of time between the grave offense and the actual vindication.[110] Thus, in an earlier case involving the infidelity of a wife, the killing of her paramour prompted proximately though not immediately by the desire to avenge the wrong done, was considered an extenuating circumstance in favor of the accused.[111] The time elapsed between the offense and the suspected cause for vindication, however, involved only hours and minutes, not days. Hence, we agree with the Solicitor General that the lapse of two (2) weeks between his discovery of his wife's infidelity and the killing of her supposed paramour could no longer be considered proximate. The passage of a fortnight is more than sufficient time for appellant to have recovered his composure and assuaged the unease in his mind. The established rule is

that there can be no immediate vindication of a grave offense when the accused had sufficient time to recover his serenity.[112] Thus, in this case, we hold that the mitigating circumstance of immediate vindication of a grave offense cannot be considered in appellant's favor. We likewise find the alleged mitigating circumstance of passion and obfuscation inexistent. The rule is that the mitigating circumstances of vindication of a grave offense and passion and obfuscation cannot be claimed at the same time, if they arise from the same facts or motive.[113] In other words, if appellant attacked his victim in proximate vindication of a grave offense, he could no longer claim in the same breath that passion and obfuscation also blinded him. Moreover, for passion and obfuscation to be well founded, the following requisites must concur: (1) there should be an act both unlawful and sufficient to produce such condition of mind; and (2) the act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his moral equanimity.[114] To repeat, the period of two (2) weeks which spanned the discovery of his wife's extramarital dalliance and the killing of her lover was sufficient time for appellant to reflect and cool off. Appellant further argues that the lower court erred in failing to consider voluntary surrender as a mitigating circumstance. On this point, the following requirements must be satisfied: (1) the offender has not actually been arrested; (2)

the offender surrendered himself to a person in authority; and (3) the surrender was voluntary.[115] Records show, however, that leaflets and posters were circulated for information to bring the killer of Nemesio to justice. A team of police investigators from La Trinidad, Benguet then went to Kayapa, Nueva Vizcaya to invite appellant for questioning. Only then did he return to Benguet. But he denied the charge of killing the victim. Clearly, appellant's claimed surrender was neither spontaneous nor voluntary. Absent any aggravating or mitigating circumstance for the offense of homicide the penalty imposable under Art. 64 of the Revised Penal Code is reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, the penalty which could actually be imposed on appellant is an indeterminate prison term consisting of eight (8) 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. 4. Proper Award of Damages Appellant and the Solicitor General are one in contending that the trial court awarded excessive actual damages without adequate legal basis. Thus, the amount of P150,000.00 was awarded for funeral and burial expenses without any supporting evidence on record.[116] This cannot be sustained in this review. In order for actual damages to be recovered, the amount of loss must not only be capable of proof but must actually be proven with reasonable degree of certainty, premised upon competent

proof or best evidence obtainable of the actual amount thereof, such as receipts or other documents to support the claim.[117] The records clearly show in this case that only the amount of P7,000 as funeral expenses was duly supported by a receipt.[118] Hence, the award of actual damages should be limited to P7,000 only. Appellant further contests the award of P2,040,000 for loss of earning capacity as unconscionable. Since the victim's widow could not present any income tax return of her husband to substantiate her claim that his net income was P60,000 annually, then according to appellant, there is no basis for this award at all. At best, appellant says, only temperate or nominal damages may be awarded. The OSG responds that the award for loss of earning capacity has adequate basis as the prosecution presented sufficient evidence on the productivity of the landholdings being tilled by the deceased and the investments made by the Lopate family from their income. Hence, said the OSG, it was not a product of sheer conjecture or speculation. Nonetheless, the OSG submits that the original amount of P1,800,000 for loss of earning capacity should be restored as it is this amount which takes into account only a reasonable portion of annual net income which would have been received as support by the heirs. In setting said award at P2,040,000, amended from P1,800,000, for lost earnings, the trial court took note of the following factors in its computations:

The Death Certificate of Nemesio Lopate shows that he died at the age of 29.[119] His widow's detailed testimony shows that their average annual net income from vegetable farming was P60,000.[120] The victim's share of the annual net income from the couple's farm is half thereof, or P30,000. Using the American Expectancy Table of Mortality, the life expectancy of the victim at age 29 is set at 34 years. Therefore, total loss of Earning Capacity (X) should be computed as follows: X = 2/3 (80-29) x P30,000 X = 2/3 (51) x P30,000 X = 34 x P30,000 X = P1,020,000 This amount should form part of the damages awarded to the heirs. We sustain the award of P50,000 as indemnity ex delicto. But there being no testimony or other proof thereon, the award of P50,000 as moral damages cannot now be sustained. Instead, temperate damages in the amount of P25,000 should be awarded. The award of P20,000 in attorney's fees should be maintained. Records show that the victim's widow had to hire the services of a private prosecutor to actively prosecute the civil aspect of this case,[121] and in line with Article 2208 of the Civil Code,[122] reasonable attorney fees may be duly recovered. WHEREFORE, the judgment of the Regional Trial Court of La Trinidad, Benguet, Branch 8, in Criminal Case No. 96-CR-2522 is MODIFIED as follows:

Appellant June Ignas y Sanggino is found GUILTY beyond reasonable doubt of the crime of HOMICIDE as defined and penalized under Article 249 of the Revised Penal Code, as amended. There being neither aggravating nor mitigating circumstance, he is hereby sentenced to suffer an indeterminate penalty of ten (10) 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. Appellant June Ignas y Sanggino is ORDERED TO PAY the heirs of the victim, Nemesio Lopate, the following sums: a) P7,000 as actual damages; b) P1,020,000 for loss of earning capacity; c) P50,000 as civil indemnity; d) P25,000 as temperate damages; and e) P20,000 as attorney's fees. Costs de oficio. SO ORDERED.

EN BANC [G.R. No. 139906, March 05, 2003] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ANTHONY MANGUERA Y ALINGASTRE, ACCUSEDAPPELLANT. DECISION VITUG, J.: Anthony Manguera was sentenced to suffer the extreme penalty of death by the Regional Trial Court, Branch 6, of Tanauan, Batangas, for raping and killing Lorna Reanzares. The conviction of Manguera rested largely on the declaration made by the victim shortly before she died. Anthony Manguera was charged with the crime of rape with homicide before the Regional Trial Court, Branch 6, of Tanauan, Batangas, in an information that read: That on or about the 25th day of February 1996, at about 6:30 o clock in the evening, at Barangay San Miguel, Municipality of Santo Tomas, Province of Batangas, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of one Lorna Reanzares y Javier against her will and consent and by reason or on the occasion of the said rape, accused, armed with a bladed instrument, with intent to kill, willfully, unlawfully and feloniously stabbed the said Lorna Reanzares y Javier with the said instrument, thereby inflicting upon the latter stab wounds on the different parts of

her body which directly caused her death. [1] When arraigned, Anthony Manguera entered a plea of not guilty. The prosecution presented its evidence, hereunder narrated, following Manguera s plea of innocence. On 25 February 1996, just after sunset, a neighbor of Lorna Reanzares, while walking on her way home in Barangay San Miguel, Sto. Tomas, Batangas, thought that she heard Lorna screaming, Inay, Inay,  from a nearby coconut plantation. Worried, the neighbor, Josephine Managa, proceeded to the Reanzares residence to inquire if Lorna was already home. When Romeo Reanzares, Lorna s older brother, informed her that Lorna had not as yet arrived, Josephine told him of what she had heard from the nearby plantation. Romeo, accompanied by Josephine, along with his mother, his sister, and his wife rushed to the place where Lorna s voice was said to have been heard. Upon reaching the site, Romeo asked Josephine to point to the exact location where she had heard the cries. Suddenly, Romeo heard Lorna call, Kuya, kuya, tulungan mo ako. [2] He ran towards the spot where the voice was emanating from and found Lorna lying naked, her panties and shorts pulled down to her left ankle. Romeo inquired from his sister what had happened. Lorna replied Kuya, ginahasa ako. [3] When asked who was responsible for it, Lorna replied Si Nognog, si Nognog. [4] Nognog who,  Romeo pressed on, and Lorna answered, Anthony Manguera.  Moments later,

Lorna, visibly weak, told her brother Kuya, parang hindi ko na kaya. May saksak ako sa likod. [5] Romeo turned her sister s back and saw that it was bloodied with stab wounds. He covered her with her torn clothes and brought her to a vehicle brought by their father who meanwhile followed them to the plantation. When queried whether Anthony Manguera was with her on her way home, she answered, No, he was waiting for me ( inaabangan ) and raped me and stabbed me. [6] Lorna died on the way to the Municipal Health Office in Sto. Tomas, Batangas. The post mortem report disclosed: FINDINGS: HEAD - contusion hematoma, 2 x 1.5 cm., chin NECK - linear superficial lacerated wound, anterior aspect extending from left to right. BACK - multiple stab wounds #10, sizes ranging from .5 cm. to 2 cm., 4 to 8 cm. deep PELVIC EXAM N: IE - admits 2 fingers with ease Hymen with multiple lacerations at 1, 3, 6 and 10 o clock position. Note - vaginal swab obtained, specimen sent to PCCL. CAUSE OF DEATH - Cardiopulmonary arrest secondary to multiple stab wounds. [7] After an investigation at the police headquarters in Sto. Tomas, Batangas, police officers, accompanied by Romeo Reanzares, apprehended Anthony Manguera that same evening at his residence in Barangay San Miguel, Sto. Tomas, Batangas. Manguera was only fifteen (15) years old at the time.

In his defense, Manguera interposed denial and alibi. He claimed that at around six o clock on the late afternoon of 25 February 1996 until about eight o clock that evening, he was at their house in Barangay San Miguel, attending to his father s guests that included a number of barangay officials and policemen. Among them was Brgy. Capt. Fabio Leycano of San Bartolome, Sto. Tomas, Batangas, who testified that at approximately five o clock that afternoon, he was with Manguera who served the group pulutan . Diosdado Ilagan, a barangay tanod of San Miguel, stated that on the late afternoon and early evening of 25 February 1996, he was at the house of the Mangueras. He learned about the crime only the following morning, and that he knew of another suspect in the crime, a certain Orlando Millar, a.k.a. Nognog,  who was arrested but later released by the police. Ilagan claimed that Millar used to go to his store and at one time Millar happened to mention that he was courting Lorna Reanzares. At a little past five o clock on the afternoon of 25 February 1996, he saw Millar in Barangay San Miguel. Tomas Manguera, an uncle of Anthony Manguera, testified that he arrived at the house of the accused at about half past six o clock in the afternoon. At eight o clock that evening, policemen arrived at the house and invited his nephew Anthony Manguera for questioning at the police station. Dismissing the defense of denial and of alibi, the court a quo found Anthony Manguera guilty beyond reasonable doubt of the crime of rape with homicide and imposed

upon him the death penalty. Manguera was also ordered to indemnify the heirs of Lorna Reanzares P100,000.00 by way of moral damages and P39,613.35 for funeral expenses. The trial court, relying heavily on the dying declaration of Lorna, narrated by his brother Romeo, said There can be no dispute that from the testimony of Dr. Gloria Andaya, Lorna Reanzares was bumped on her head causing hematoma and was raped. She died later from the multiple stab wounds she sustained in the early evening of 25 February 1996. The author of the rape and the multiple stab wounds sustained by Lorna Reanzares was identified by her to be a person nicknamed Nognog. Nognog, according to her, was Anthony Manguera, the son of Tonio from the East with a tricycle. The accused, Anthony Manguera, admits that he was called Nognog since his childhood. Under Article 335 (1) of the Revised Penal Code, having carnal knowledge of a woman by the use of force and intimidation constitutes the crime of rape. Lorna s revelation to her brother, Romeo Reanzares, as to the identity of her sexual attacker and assailant is admissible in evidence as a dying declaration. Section 31, Rule 30, of the Revised Rules of Court provides that the declaration of a dying person, made under a consciousness of an impending death, may be received in a criminal case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. Very early decisions of

the Supreme Court on the evidentiary weight and admissibility of dying declarations propound: The reasons for the admissibility of dying declarations as an exception to the hearsay rule are (a) necessity and (b) trustworthiness. Necessity, because the declarant s death renders impossible his taking the witness stand; and it often happens that there is no other equally satisfactory proof of the crime. Hence, it is allowed to prevent a failure of justice. And trustworthiness for in the language of Lord Baron Eyre, the declaration is `made in extremity, when the party is at the point of death and every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and awful is considered by the law as creating an obligation equal to that which is imposed by an oath administered in court (U.S. vs. Gil, 13 Phil 549). A man at the point of death who is convinced that he is going to die is not in a condition to invent a story to prejudice the accused (People vs. Alfaro, 83 Phil 85). The statements made by an individual who is seriously wounded, at a moment when he was dying, being convinced that there was no hope of recovery, constitute per se at least a grave conclusive and decisive indication of the culpability of the persons designated by the dying man, inasmuch as it must be assumed that he, being in so precarious a condition, spoke truthfully, and that he was not induced by a desire to tell a lie and

to injure an innocent person (U.S. vs. Castellon, et al., 12 Phil 160). Lorna sustained a head blow as if hit by a hard object and multiple stab wounds at her back. Her statement to her brother, Romeo: `Kuya parang hindi ko na kaya. May saksak ako sa likod cannot be given any other meaning than that she was conscious that her death was imminent. Her meaning was clear to Romeo who told her to hold on `lakasan mo ang loob mo, and she asked for water. She was declared dead upon her arrival at the hospital. She made the revelation identifying her attacker and assailant when, upon her cries of `Kuya, tulungan mo ako, Romeo came upon her lying naked with blood on the grass underneath her. She added that the accused had lain in wait for her (inabangan) and raped her and stabbed her. Lorna was a sixteen-year old, fourth year high school student. Clearly, all the conditions for the admissibility of her dying declaration are present: Conditions on which the admissibility of dying declarations depend: (a) That death be imminent and that declarant be conscious of that fact; (b) That the preliminary facts which bring the declaration within its scope be made to appear; (c) That the declaration relate to the facts or circumstances pertaining to the fatal injury or death; (d) That the declarant would have been competent to testify had he survived (31 C.J.S., 987-988). [8] In this appeal, Anthony Manguera assails the dying declaration of the victim identifying him to be the

author of the dastardly crime and blames the trial court for ignoring the defense of alibi. The Court, quite unfortunately for appellant, sees no sufficient justification for a reversal of the factual findings and judgment of conviction made by the trial court. Nor can it be faulted for accepting the ante mortem declaration of Lorna Reanzares testified to by Romeo Reanzares. On directexamination, the latter testified: Q What was her position, except seeing her naked? A She was lying down on top of banana leaves, sir. Q: After seeing her in that position, what step did you and/or your group do? A: I asked her who did this to her. Q: What was her answer? A: She answered, `Si Nognog, si Nognog, sir. Q: What else happened after she answered `si Nognog ? A: I asked her who this Nognog because I don t know his real name, sir. Q: What was the answer, if any? A:

She told me Anthony Manguera alias Nognog, sir. Q: She told you that Anthony Manguera alias Nognog, what else did you ask your sister? A: I asked her if he is the son of Antonio with tricycle from the east, sir. Q: What was the answer? A: She answered, yes, he is the one. Q: And do you know personally this Antonio from the east? A: I know the father, sir. COURT:

A He is a resident of the place but far from our house, your Honor. FISCAL:

Q When you said east, what are you referring to when you said Antonio from the east? A: "When I asked her Antonio from the east with tricycle and she said yes, I already knew who they were, sir. (pp. 8-10, TSN, 14 October 1996; emphasis supplied) [9] On cross-examination, Romeo Reanzares was likewise straightforward; more importantly, he remained consistent in his testimony. COURT: Q What were the questions you asked your sister before covering her up? A I asked her who did that [to] you, your Honor. Q And she answered, what did she say? A She said, `Nognog, Nognog, your Honor. Q What else did you ask your sister? A I asked her who is this Nognog, your Honor. Q Was she able to answer you?

Q How about the accused here, do you know him personally? A: I only know him by face but I don t know the full name, your Honor. Q: How many times have you seen him before this incident, I am referring to the accused? A: Maybe 3 to 4 times, your Honor. Q Is he a neighbor or a resident of your place?

A She told me Anthony, your Honor. Q Anymore questions and answers before you covered your sister? A I asked her if he is the son of Antonio from the east with tricycle and she answered `yes, your Honor. COURT: Q Did you state that about what you testified earlier that this Nognog is the son of Tonio the owner of the tricycle from the Silangan, did you give that statement to the investigator? A I told that at the headquarters but it was not incorporated in the statement, your Honor. ATTY. TAGATAC: Q Did you read your sworn statement that was taken from you at the police station before you signed? A Yes, sir. Q And did you not inform the investigator why they did not include it in your statement that Nognog is the son of Tonio the owner of a tricycle? A I told the investigator, but he told me that it is stated in the last part of that statement that if I have to add or delete something from that it will be done in the court. [10] The Court shares the view of the Office of the Solicitor General which has observed that Contrary to appellant s pretension, there is no riveting inconsistency between Josephine Managa and Romeo Reanzares testimonies (p.29, Brief for the Appellant). True, just as Josephine Managa testified, it was Romeo Reanzares who uttered the words the son of Antonio ( with tricycle from the

You better get the vernacular. `Anak ni Tonio na taga Silangan na may tricycle. Q And all the while you were never covering her? A I told her to be strong and I dressed her up and I will bring her to the hospital. : Q You said you asked your sister if Nognog is the son of Tonio, owner of a tricycle, did you state that in your sworn statement when you were investigated by the police officers? A When my statement was being taken by the police, if you will notice that investigator is poor in Tagalog, probably he is a Visayan or Ilocano. He is not fluent in Tagalog. COURT: ATTY. TAGATAC

east ). But it is obvious from Romeo Reanzares testimony that this utterance came in the form of a clarificatory question after Lorna Reanzares (and not Romeo Reanzares) already identified `Nognog as `Anthony Manguera. x x x. Admittedly, Josephine Managa did not hear Lorna Reanzares utter the words Anthony Manguera , but this does not mean that Lorna did not say them. Romeo Reanzares said that Lorna did and there is no reason to disbelieve him. It bears stressing that, while Josephine Managa stood about four (4) steps away from where Romeo and Lorna were, Romeo was squatting on the ground, hugging and talking to his dying sister (pp. 21-22, TSN, 7 November 1996 and pp. 18 and 21, TSN, 3 March 1997. xxxxxxxxx

There is likewise no merit to appellant s claim that Romeo Reanzares failure to declare in his sworn statement that he asked Lorna Reanzares whether `Nognog was the `anak ni Tonio na taga Silangan na may tricycle (supra) is a material omission which discredits his testimony. x x x said sworn statement was taken x x x less than twenty-four (24) hours after Romeo Reanzares shocking discovery of his dying sister s body. He could not be expected to be complete and precise in his statements to the police. Sworn statements/affidavits are generally subordinated in importance to open court declarations because the former are

often executed when an affiant s mental faculties are not in such state as to afford him a fair opportunity of narrating in full the incident which has transpired (People vs. Sanchez, 302 SCRA 21). [11] The ante mortem statement of Lorna Reanzares, testified to by her brother Romeo Reanzares, is not only admissible in evidence as being an exception to the hearsay rule but also a weighty and telling piece of evidence. A dying declaration is admissible when (a) it concerns the cause and the surrounding circumstances of the declarant s death; (b) it is made when death appears to be imminent, and the declarant is under a consciousness of impending death; (c) the declarant would have been competent to testify had he or she survived; and (d) the dying declaration is offered in a case in which the subject of inquiry involves the declarant s death.[12] Statements uttered by a victim on the verge of death identifying the assailant, given under the conditions heretofore mentioned, are entitled to the highest degree of credence and respect. A person aware of an impending death has been known to be genuinely truthful in his words and extremely scrupulous in his accusations.[13] Thus, pronouncements of guilt, not infrequently, have been allowed to rest solely on such dying declarations of deceased victims.[14] The defense of alibi has been correctly rejected by the court below. Countless cases have taught that for the defense of alibi to prosper, clear and convincing evidence must establish, among other things, that it would have been

impossible for the accused to have been at the crime scene at the time the crime is committed.[15] It would indeed be fragile an alibi for an accused to demonstrate such impossibility where the two places are located within the same barangay. It was error, nevertheless, on the part of the trial court to mete the death penalty even while Section 11 of Republic Act No. 7659 prescribes that penalty when by reason, or on the occasion, of the rape the crime of homicide is committed. Article 47 of the Revised Penal Code, as amended by Section 22, Republic Act No. 7659, reads: Art. 47. In what cases the death penalty shall not be imposed; Automatic review of death penalty cases. The death penalty shall be imposed in all cases in which it must be imposed under existing laws, except when the guilty person is below eighteen (18) years of age at the time of the commission of the crime or is more than seventy years of age or when upon appeal or automatic review of the case by the Supreme Court, the required majority vote is not obtained for the imposition of the death penalty, in which cases the penalty shall be reclusion perpetua. (Emphasis supplied) The first part of the provision is consistent with Article 68 of the same Code which treats minority as a privileged mitigating circumstance and reduces the imposable penalty by one degree if the accused is over fifteen (15) and under eighteen (18) years of age, and by two degrees, if under fifteen (15) but over nine (9) years of age, and the accused acted with discernment.

Anthony Manguera was only fifteen (15) years old at the time of the commission of the crime as so evidenced by his Certificate of Live Birth (Exhibit 5). Thus, pursuant to the provisions of Article 47, as amended, and consonantly with Article 68 of the Revised Penal Code, the penalty that can only be imposed on appellant for the crime of rape with homicide is reclusion perpetua. The award of moral and actual damages by the lower court should be modified. Under prevailing jurisprudence,[16] the victim s heirs are entitled to the civil indemnity of P100,000.00 and moral damages of P50,000.00. Only P15,000.00 funeral expenses was duly receipted and proved; understandably, the actual damages suffered must have been more than the amount proven; in situations of this nature, the Court allows an award of temperate damages of P25,000.00. WHEREFORE, the decision of the Regional Trial Court, Branch 6, of Tanauan, Batangas, finding accusedappellant ANTHONY MANGUERA Y ALINGASTRE guilty beyond reasonable doubt of the crime of rape with homicide is AFFIRMED with MODIFICATION in that (a) the death penalty imposed by the trial court is commuted to reclusion perpetua and (b) the judgment on the civil liability is modified by ordering appellant to pay the amounts of P100,000.00 civil indemnity, P50,000.00 moral damages, and P25,000.00 temperate damages to the heirs of the deceased. Costs de oficio. SO ORDERED.

FIRST DIVISION [G.R. No. 126028, March 14, 2003] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EXPEDITO ALFON, ACCUSEDAPPELLANT. DECISION AZCUNA, J.: Expedito Alfon appeals the December 18, 1995 decision[1] of the Regional Trial Court (RTC) of San Jose, Camarines Sur (Branch 30) in Criminal Case No. T-1249, finding him guilty of murder as follows: WHEREFORE, the accused Expedito Alfon is hereby sentenced to suffer the penalty of imprisonment of reclusion perpetua, with the accessory penalties inherent thereto, to indemnify the heirs of the late Tomas Alferez, through the latter s brother Rodolfo Alferez the sum of Fifty Thousand Pesos (P50,000.00) [as civil indemnity, and] the sum of Twenty Four Thousand Two Hundred Twenty Pesos (P24,220.00) as actual damages, both [in] Philippine Currency, and to pay the costs.[2] On April 30, 1993, appellant was charged under an information which states: That on or about 2:00 o clock in the afternoon of February 18, 1993 at Barangay Oring, Municipality of Caramoan, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation while armed with a fan knife (balisong biente nueve) without any warning whatsoever did, then and there

willfully, unlawfully, and feloniously attack, assault and stab the victim Tomas S. Alferez hitting the latter twice on his chest and other parts of the body thereby inflicting stab wounds which directly caused his instantaneous death on February 18, 1993 as evidenced by the attached Autopsy Report marked as Annex A  and death certificate marked as Annex A-1  hereof. That as a consequence of the unlawful acts of the above-named accused, the heirs of the late Tomas S. Alferez have suffered damages. ACTS CONTRARY TO LAW.[3] Upon his arraignment on July 28, 1993,[4] appellant, assisted by his counsel de oficio,[5] pleaded not guilty. After trial, the court a quo rendered the assailed decision. The prosecution presented four witnesses: Vicente Eusebio, Manuel Rayoso, Dr. Minerva Aguirre, and Rodolfo Alferez. Their testimonies are summarized below. Vicente Eusebio testified that on February 18, 1993, he was smoking cigarettes in front of the house of Purificacion Reazon at Barangay Oring, Caramoan, Camarines Sur. At around 2:00 p.m., he saw the victim walking from the opposite direction being followed by herein appellant Expedito Alfon. As soon as the victim and appellant were about six meters away from him, appellant came from behind the unsuspecting victim, and suddenly stabbed the latter twice with a knife known as balisong 29. The victim was hit on the left portion of his ribs and on the right side of his chest. As he fell on the ground face down, appellant ran away towards

the seashore. Eusebio shouted for help, and immediately, Manuel Rayoso, Jesus Arranza, and Agripino Lazado responded. They carried the victim to a motorboat and brought him to a doctor in Poblacion, Caramoan. Unfortunately, Tomas Alferez did not survive.[6] Manuel Rayoso, the second eyewitness, testified that on February 18, 1993, at around 2:00 p.m., while walking near the house of Purificacion Reazon, he saw the victim walking from the opposite direction being followed by the appellant. Shortly thereafter, when the victim and appellant were six meters away from him, he witnessed the appellant suddenly hold the victim s shoulder and stab the latter with a balisong at the lower left side of his chest. Appellant then ran away towards the seashore.[7] Dr. Minerva Aguirre, Municipal Health Officer of Caramoan who conducted the autopsy of the victim s body, testified on her post mortem findings. As indicated in the autopsy report,[8] she verified that the victim sustained two stab wounds: one on the right lower part of the victim s nipple, and the other on the left lower part of the chest, which she found to be the more fatal. She also found an incised wound on the dorsal part of the victim s right index finger. She stated that a sharp-bladed instrument could have caused the wounds. The cause of death, as declared in said autopsy report, is profuse hemorrhage secondary to stab wound.[9] Rodolfo Alferez, the victim s brother, testified to prove the civil liability of appellant. He stated that

he spent a total of P24,220.00 for the funeral and burial expenses, as itemized in the list of expenses he submitted as evidence.[10] Appellant Expedito Alfon, on the other hand, interposed the defense of denial. He narrated that in the afternoon of February 18, 1993, he was on his way home from his sister s house. While walking along Sampaguita Street, the victim and his brother Rodolfo Alferez waylaid him. Rodolfo punched appellant on his left eye and later brought out a knife. Appellant ran away and the victim chased him. A fistfight then ensued between appellant and the victim. Rodolfo soon after caught up with them and tried to stab appellant with a knife. Appellant evaded the thrust and Rodolfo hit Tomas instead. Appellant then ran away and later learned that Tomas had died. [11] The trial court concluded that the eyewitnesses testimonies convincingly established that appellant had killed the victim with treachery. It, however, ruled out the aggravating circumstance of evident premeditation for lack of proof. It rejected the denial and version of the appellant due to the lack of supporting evidence. Hence, this appeal. In his Brief, appellant submits for our consideration the following errors allegedly committed by the trial court: THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDIT TO THE TESTIMONIES OF THE PROSECUTION WITNESSES.

THE TRIAL COURT ERRED IN HOLDING THAT THE KILLING OF TOMAS S. ALFEREZ WAS QUALIFIED BY TREACHERY. THE TRIAL COURT ERRED IN NOT APPRECIATING THE DEFENSE OF ACCUSED-APPELLANT THAT IT WAS RODOLFO ALFEREZ WHO ACTUALLY STABBED HIS BROTHER TOMAS S. ALFEREZ. THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANT DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. THE TRIAL COURT ERRED IN HOLDING ACCUSED-APPELLANT LIABLE FOR ACTUAL DAMAGES IN THE AMOUNT OF P24,220.00.[12] Under the first, third and fourth assigned errors, this Court is called upon to determine whether or not the trial court was correct in finding the evidence of the prosecution sufficient to prove appellant s guilt beyond reasonable doubt, and in rejecting the version of the defense. Appellant contends that the trial court erred in giving credence to the eyewitnesses testimonies, which he insinuates to be incredible and unreliable. As his first point, he asserts that considering the circumstances of the stabbing incident as narrated by the prosecution and the location of the injuries, an attack from behind is hardly believable. He avers that assuming that he was indeed following the victim prior to the attack, it could have been easier and more convenient for him to stab the victim s back. However, as it now

appears, the injuries are all found on the front of the victim. He thus argues that in the ordinary course of things, the attack was more likely frontal, contradictory to the testimonies of the prosecution. This Court is not convinced. The two eyewitnesses testified that appellant came from behind before stabbing the victim since the former was following the latter prior to the sudden attack. Eusebio s detailed account of the manner of assault explains why the injuries are on the front of the victim, despite the assailant having come from behind: xxx xxx xxx Q: You said a while ago that you saw the accused following the victim, Tomas Alferez [b]efore [he] was stabbed twice. Would you go down the witness stand and demonstrate to us how Expedito Alfon approached Tomas Al[f]erez and stabbed him? A: Expedito Alfon went towards the right side of Tomas Alferez coming from behind and suddenly stabbed Tomas Alferez using his right hand in an embracing position with his left hand on the victim s left shoulder [and] with his right hand striking the victim [with] a swinging motion hitting the victim s left lower rib. The second strike hit the victim on the right portion of his body. (STENOGRAPHER S NOTE: The witness demonstrated the act by using the Interpreter as medium.)[13] Though not as specific, the testimony of the second eyewitness, Rayoso, is corroborative on the aforesaid manner of attack:

xxx xxx xxx Q: And when you saw this Expedito Alfon, the accused [whom] you pointed a while ago[,] following this Tomas Alferez , what happened next? A: He [held] the shoulder and stabbed him. Q: From behind? A: From behind. Q: As you said from behind, Tomas Alferez was stabbed. Was he hit when stabbed by Expedito Alfon? A: Yes sir. Q: Where? A: (Witness pointed to the lower left side of the chest/breast.)[14] Unrefuted on cross, these testimonies on the manner of attack sufficiently establish beyond reasonable doubt that the assailant came from behind, held the shoulder of the victim with one hand, and in a sudden and swift manner, stabbed the front of the victim with the other hand. The argument that it could

have been more convenient for appellant, who was behind the victim, to stab at the back cannot prevail over the testimonies of the eyewitnesses. Furthermore, the manner as testified to is the more plausible one, as it shows that the assailant aimed to stab the front of the victim while holding the latter s shoulder from behind, to ensure the execution of the act and the instant death of the victim. The evidence is indisputable that one of the injuries inflicted on the victim was so severe that death most likely occurred in not more than five minutes.[15] As his second point, appellant seeks to inject reasonable doubt on the ground of the alleged conflicting evidence of the prosecution on the number of stabbing blows executed by the assailant. Witness Eusebio testified that the victim was stabbed twice,[16] while in the narration of witness Rayoso, it appears that the victim was stabbed only once.[17] Dr. Aguirre, on the other hand, opined in her testimony that the assailant most likely threw three stabbing blows.[18] The argument fails. First, with regard to the inconsistencies in the eyewitnesses testimonies, this Court holds that these are insufficient to affect the essential veracity of their testimonies. It is settled that conflict in testimonies of witnesses in describing details of an event may be due to differences in observations and memory which do not necessarily imply falsehood on their part.[19] Inconsistencies on minor details do not impair the credibility of the witnesses where there is consistency in relating the principal occurrence and positive

identification of the assailant.[20] In the present case, though the two eyewitnesses differed as to the number of stabbing blows, they were unwavering and consistent in declaring that they witnessed no less than the appellant stabbing the victim at the chest with the use of a balisong. Second, as regards the doctor s testimony, this Court notes that her opinion that the assailant most likely threw three stabbing blows was only surmised from her finding of three injuries. Such finding does not discount the possibility that the third wound on the victim s finger could have been caused in the victim s attempt to parry the appellant s knife. Given these, therefore, the alleged discrepancy fails to render the eyewitnesses testimonies unreliable and incredible. As this Court has consistently held, inconsistencies on minor details reinforce rather than weaken credibility.[21] Against the evidence presented by the prosecution, which the trial court found sufficient and convincing, appellant interposes denial as his defense. He begrudges the trial court for not appreciating his defense that it was Rodolfo Alferez who stabbed the victim. This Court agrees with the trial court s observation that the version of the appellant is doubtful. First, the two disinterested eyewitnesses both testified that Rodolfo was not at the scene during the incident. This point in said testimonies was confirmed by Rodolfo himself, and was not challenged by the defense. Second, appellant s version evidently conflicts with the physical evidence

showing that the victim suffered three injuries. Assuming that Rodolfo indeed hit the victim by mistake, the two other wounds remain unexplained. Third, appellant failed to present evidence on any illmotive Rodolfo and Tomas Alferez would have against appellant. The fact that that there was no bad blood between the families of the brothers and appellant was even stipulated by the parties.[22] Fourth, and more importantly, appellant failed to present any independent evidence other than his own denial to bolster his claim. It is doctrinal that to merit credibility, denial must be buttressed by strong evidence of non-culpability.[23] If unsubstantiated by clear and convincing evidence, it is negative and self-serving, deserving no greater value than the testimony of credible witnesses who testify on affirmative matters.[24] In the case at bar, appellant miserably failed to overcome the eyewitnesses testimonies, which positively identified him as the perpetrator of the crime. In view of the foregoing, this Court concurs with the trial court in attributing full faith and credence to the testimonies of the disinterested eyewitnesses and in disregarding the denial of appellant. As between categorical testimonies that ring of truth on one hand, and a bare denial on the other, the former must prevail.[25] The rule is settled that the trial court s evaluation of the credibility of witnesses will not be disturbed by this Court on appeal, absent any arbitrariness or oversight of facts and circumstances of weight and substance.[26] In this case, this Court finds no reason to

reverse the findings of the court a quo. In his second assigned error, appellant avers that the killing could not have been attended by treachery considering that the wounds were inflicted on the front of the victim. As discussed earlier, he seeks to cast doubt on the prosecution s averment that the attack came from behind, arguing that the attack could be more likely frontal. The essence of treachery is the unexpected and sudden attack on the victim which renders the latter unable and unprepared to defend himself by reason of the suddenness and severity of the attack.[27] This criterion applies, whether the attack is frontal or from behind. Even a frontal attack could be treacherous when unexpected and on an unarmed victim who would be in no position to repel the attack or avoid it.[28] The fact that the location of the fatal stab wound is in front does not in itself negate treachery.[29] In the case at bar, it was established that appellant came from behind, went towards the right of the victim, and suddenly stabbed the victim s chest while holding the latter s left shoulder. Evidence shows that, first, at the time of attack, the victim was not in a position to defend himself, as he was unarmed and totally unsuspecting when appellant suddenly held and stabbed him; and second, appellant consciously and deliberately adopted the particular means of attack, as he was seen surreptitiously following the victim with a balisong tucked under his waist. Clearly therefore, treachery attended the crime.

Finally, as to the civil liability imposed by the trial court, some modifications are in order. The trial court erred in awarding actual damages in the amount of P24,220. To recover actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, on the basis of competent proof and the best evidence obtainable.[30] The prosecution in this case merely presented the testimony of the victim s heir, and a list of funeral and burial expenses made by the same witness without producing any receipt or other evidence to support the claim. There was thus no sufficient proof to sustain the trial court s award of actual damages. Be that as it may, considering that it cannot be denied that the heirs suffered some pecuniary loss though the exact amount cannot be proved with certainty, an award of P25,000 by way of temperate damages is appropriate.[31] In addition to this, this Court likewise grants the amount of P25,000 as exemplary damages given the presence of the qualifying circumstance of treachery.[32] The civil indemnity for the victim in the amount of P50,000 is sustained. All things considered, this Court is convinced that appellant Expedito Alfon is guilty of murder. Given that the crime was committed prior to the effectivity of the New Death Penalty Law (Republic Act No. 7659),[33] the appropriate penalty under Article 248 of the Revised Penal Code prior to its amendment is reclusion temporal in its maximum period to death. Inasmuch as there is neither mitigating nor aggravating circumstance, the penalty of

reclusion perpetua imposed by the trial court is correct.[34] WHEREFORE, the decision of the court a quo is AFFIRMED with the MODIFICATION that in addition to the civil indemnity of P50,000, appellant is further ordered to pay the heirs of the victim P25,000 as temperate damages and P25,000 as exemplary damages. The award of actual damages is deleted. Costs de oficio. SO ORDERED.

THIRD DIVISION [G.R. No. 171018, September 11, 2009] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ELLY NAELGA, ACCUSED-APPELLANT. DECISION CHICO-NAZARIO, J.: For Review under Rule 45 of the Revised Rules of Court is the Decision[1] dated 30 November 2005 of the Court of Appeals in CAG.R. CR No. 00304 entitled People of the Philippines v. Elly Naelga, affirming the Decision[2] rendered by the Regional Trial Court (RTC) of Rosales, Pangasinan, Branch 53, in Criminal Case No. 4649-R, finding Elly Naelga guilty of the illegal sale of methamphetamine hydrochloride, more popularly known as shabu. By virtue of a Criminal Complaint, accused-appellant Elly Naelga y Bongay (accused-appellant) was indicted before the RTC of Rosales, Pangasinan, Branch 53, for violation of Sections 5[3] and 11(3),[4] Article II of Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, the accusatory portion of which reads: That on or about 3:00 o'clock in the afternoon of July 15, 2003, in Poblacion, Municipality of Rosales, Province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, control and custody the following, to wit: one (1) piece of

small transparent plastic containing "Shabu" weighing more or less 0.4 grams which he sold to a poseurbuyer designated by the police, and without having the necessary permit or license to possess the same. Contrary to Article II, Sec. 5 and Sec. 11(3) of R.A. 9165.[5] Upon arraignment on 27 August 2003, accused-appellant pleaded not guilty.[6] A pre-trial conference was held on 16 September 2003 in the presence of the government prosecutor, the accused and his counsel. Based on the pre-trial order issued by the trial court on 16 September 2003, the defense only admitted to the identity of the accused-appellant and the fact of his apprehension, but denied any knowledge of the existence of a buybust operation. The defense limited its testimonial evidence to that of accused-appellant himself. On the other hand, the prosecution limited its testimonial evidence to the stipulations of Police Officer (PO) 2 Noe Sembran, PO1 Rosauro Valdez, and Forensic Chemist Emelda Besarra Roderos. The prosecution's documentary evidence included the following: (a) Affidavit executed by PO2 Sembran who acted as poseurbuyer; (b) the marked money/P100 bill with Serial No. GW877766 recovered from accused-appellant; (c) confiscation receipt; (d) Chemistry Report; and (e) sachet of shabu handed by accused-appellant to PO2 Sembran. Thereafter, trial on the merits ensued. The prosecution supported its version of the events through documentary evidence and the testimonies of its two witnesses

from the Rosales Police Station in Rosales, Pangasinan, namely: PO2 Noe Sembran and PO1 Rosauro Valdez. PO2 Noe Sembran testified that upon receiving information from a civilian asset that the accused Elly Naelga was peddling illegal drugs at the public market of Rosales, Pangasinan, Police Chief Inspector Policarpio Cayabyab, Jr. hatched a plan to conduct a buy-bust operation to apprehend the accused. PO2 Sembran was tasked to act as poseur-buyer, with PO1 Danilo Asis, Senior Police Officer (SPO) 1 Jesus Caspillo, and PO1 Rosauro Valdez as backup operatives. The money used for the buy-bust operation was provided by the Rosales Treasurer's Office and affixed thereto were his signature and that of the municipal treasurer of Rosales. In his testimony, PO2 Sembran narrated that on 15 July 2003, he was informed by an asset that accused-appellant Elly Naelga was selling illegal drugs at the Rosales Public Market in Pangasinan. Thereafter, at about three o'clock in the afternoon of the same day, PO2 Sembran went inside the public market and approached accusedappellant. PO2 Sembran was familiar with accused-appellant, because the police's confidential agent had been monitoring accused-appellant's activities for several weeks. PO2 Sembran talked to accusedappellant, who asked the former if he was a security guard, to which he replied in the affirmative. While engaged in this conversation, PO2 Sembran asked the accusedappellant what he could use to keep him awake while on duty as a security guard. Accused-appellant

suggested that he drink Red Bull. PO2 Sembran replied that he already did, but this did not work, and that he was caught sleeping on his post. Accused-appellant then declared that he knew something more effective, as he passed his index finger under his nose as if sniffing something. When asked what he meant, accused-appellant told PO2 Sembran that he was referring to bato or shabu. PO2 Sembran said he was willing to try this and to buy Five Hundred Pesos (P500.00) worth of shabu. Accused-appellant told PO2 Sembran to give him the money and committed to return with the shabu. PO2 Sembran gave appellant four One Hundred Pesos (P400.00) in marked bills. Upon receiving the money, accusedappellant left. PO2 Sembran went back to the police station to plan the arrest of accused-appellant. Police Chief Inspector Policarpio C. Cayabyab, Jr. instructed PO2 Sembran to act as a poseur-buyer and the other members of the team as backup. PO2 Sembran and his fellow police officers returned to the public market almost an hour later. They waited for accused-appellant until he finally arrived, alighting from a tricycle. PO2 Sembran followed him in an alley. There were people sleeping on bamboo tables in the alley, and PO2 Sembran expressed apprehension at being noticed. Accused-appellant reassured him that they would not be disturbed and immediately asked for the balance of One Hundred Pesos (P100.00). PO2 Sembran gave accused-appellant the marked money. Thereupon, accusedappellant took out a sachet containing white granules and handed it to PO2 Sembran, who then

revealed that he was a policeman. Accused-appellant tried to run, but PO2 Sembran held on to the former's belt. They struggled and fell to the pavement. PO1 Valdez came to help PO2 Sembran arrest accusedappellant. PO2 Sembran was able to recover the One-Hundred-Peso (P100.00) bill from accusedappellant, who had used the Four Hundred Pesos (P400.00) he earlier received to buy shabu. Accusedappellant was taken into custody, and PO2 Sembran executed an affidavit of arrest. The plastic sachet containing 0.04 gram of white crystalline substance purchased from accused-appellant for P500.00 was marked "EN" and taken to the Philippine National Police (PNP) Regional Crime Laboratory Office in Camp Florendo, San Fernando, La Union, for laboratory examination.[7] The four marked One-Hundred-Peso bills earlier given to accused-appellant were no longer with him, but the last P100.00 marked bill later paid to him was recovered. PO1 Rosauro Valdez corroborated PO2 Sembran's testimony, narrating how he acted as backup in connection with the buy-bust operation that led to the arrest of accused-appellant. The parties agreed to dispense with the testimony of the Chemist, Police Inspector Emelda Besarra Roderos, who conducted the laboratory examination of the subject drug, considering that the defense admitted the existence, authenticity and due execution of Chemistry Report Number D-260-2003-U dated 16 July 2003, showing that the laboratory examination of the drug confiscated from accused-appellant

yielded a positive result for methamphetamine hydrochloride or shabu, a dangerous drug. [8] For the defense, accused-appellant took the witness stand. Accused-appellant denied the accusations against him. He testified that he was employed by a Muslim named Khadi to sell compact discs (CDs) in a stall located inside the public market of Rosales, Pangasinan. PO2 Sembran, who introduced himself as a security guard, had previously been buying CDs from him. One Saturday, the exact date of which he could not recall, PO2 Sembran came at around 8:30 in the morning and bought a battery worth P5.00. On Tuesday of the following week or on 15 July 2003, PO2 Sembran returned and asked accused-appellant to buy shabu for him saying, "We need that this evening." He told PO2 Sembran that he did not know anybody selling shabu; nonetheless, PO2 Sembran left P400.00, which was placed beside him. He took the money, because it might get lost. At around 3:00 o'clock in the afternoon of the same day, PO2 Sembran came back to the stall and waited for him. When he arrived, he gave to PO2 Sembran what he bought. Accused-appellant admitted, although not certain, that what he bought was shabu, which he gave to PO2 Sembran. After accusedappellant handed over the shabu and while he was leaving the place, PO2 Sembran called him back uttering, "Pare, come here," and then handcuffed him. PO2 Sembran told him, "Pare, I am a policeman" (pulis ako). On cross examination, accusedappellant admitted buying the subject shabu in Urdaneta City.

After hearing, the trial court rendered judgment on the merits. Finding that the prosecution had proven accused-appellant's guilt beyond reasonable doubt, the RTC promulgated its Decision on 21 June 2004 convicting him of the offense charged, sentencing him to Life Imprisonment, and imposing on him a fine of P500,000.00, disposing as follows: WHEREFORE, the Court hereby finds the accused Elly Naelga guilty beyond reasonable doubt of the crime of illegal sale of Methamphetamine Hydrochloride or "shabu" as charged, defined and penalized under Article II, Section 5 of Republic Act (RA) No. 9165. Accordingly, he is sentenced to suffer life imprisonment; to pay a fine of Five Hundred Thousand Pesos (P500,000.00); and, to pay the costs of suit.[9] Accused-appellant appealed the decision of the RTC to the Court of Appeals. On 30 November 2005, the Court of Appeals rendered a Decision affirming the challenged decision of the trial court, reasoning thus: [T]here is no rigid or textbook method of conducting buy-bust operations. The choice of effective ways to apprehend drug dealers is within the ambit of the police authority - police officers have the expertise to determine which specific approaches are necessary to enforce their entrapment operations. The court's duty in these cases is to ensure that the rights of the accused have not been violated during buy-bust operations.

The failure of the police authorities to comply strictly with the Dangerous Drugs Board's Resolution on the chain of custody of the seized shabu and its preservation, by itself, is not fatal to the prosecution's case. What is essential or necessary is that after the subject shabu was seized, the same was duly identified, marked or preserved, and duly submitted to the crime laboratory for examination. x x x. xxxx x x x We always adhere to the wellentrenched doctrine in our jurisdiction that the findings of facts of the trial court, its calibration of the collective testimonies of the witnesses, its assessment of the probative weight of the evidence of the parties as well as its conclusions anchored on said findings are accorded by the appellate court high respect. In the absence of any showing that a judge's factual findings were reached arbitrarily or without sufficient basis, these findings are to be received with great respect by the Supreme Court, and indeed are binding upon it. Prescinding therefrom, We hold that the court a quo had sufficiently and clearly established both the factual and legal basis that led to the verdict of conviction of accused-appellant Naelga. The Court a quo's findings and pronouncement that the police officers who conducted the buy-bust operation against accused-appellant Naelga, did so pursuant to their lawful exercise of police functions should gain respect from Us. This is so because the defense miserably failed to produce any contrary evidence that would show even how remotely it was, that police officers

Sembran and Valdez were motivated with grudge or ill-will to allow injustice to be committed against the person of accused-appellant if their accusation was fabricated.[10] Via a Notice of Appeal,[11] accusedappellant elevated the case to this Court, which thereafter resolved to require the parties to simultaneously file their respective supplemental briefs, if they so desired, within 30 days from notice.[12] Both the prosecution and the defense opted to adopt their respective supplemental briefs filed before the Court of Appeals for purposes of expediency.[13] In its brief, the defense raises the following issues for resolution by this Court: I. THE LOWER COURT GRAVELY ERRED IN GIVING CREDENCE TO THE INCONSISTENT AND INCREDIBLE TESTIMONIES OF THE PROSECUTION WITNESSES. II. THE LOWER COURT GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED BASED ON THE DISPUTABLE PRESUMPTION THAT THE POLICE OFFICERS REGULARLY PERFORMED THEIR OFFICIAL FUNCTIONS. We sustain accused-appellant's conviction. Accused-appellant denies the charges against him and attacks the

credibility of the prosecution witnesses. The core issue for resolution is the issue of the credibility of the witnesses. Accused-appellant questions the trial court's reliance on the credibility of the two prosecution witnesses in convicting him on several grounds. First, material inconsistencies and gross contradictions in the testimonies of the police officers destroyed their credibility. Second, accusedappellant alleges that the police officers failed to observe the proper guidelines in securing the chain of custody of the prohibited drugs; this alleged failure to follow proper procedure raises doubts as to whether the specimen examined by the forensic chemist and presented in court was indeed the one retrieved from accused-appellant. Thus, there can be no presumption of regularity. On the other hand, the Office of the Solicitor General is for sustaining accused-appellant's conviction, arguing that the alleged inconsistencies are minor and inconsequential and, in fact, do not negate the occurrence of the buybust operation and accusedappellant's involvement. The instant controversy involves no less than the liberty of accusedappellant. The presumption of innocence of an accused in a criminal case is a basic constitutional principle, fleshed out by procedural rules that place on the prosecution the burden of proving that the accused is guilty of the offense charged by proof beyond

reasonable doubt. This being an appeal of a criminal case, opening the entire case up for review, we have carefully reviewed and evaluated the records and the decisions of the RTC and the Court of Appeals and find no reason to deviate from their rulings. At the outset, it should be pointed out that prosecutions involving illegal drugs largely depend on the credibility of the police officers who conducted the buy-bust operation. Considering that this Court has access only to the cold and impersonal records of the proceedings, it generally relies upon the assessment of the trial court.[14] This Court will not interfere with the trial court's assessment of the credibility of witnesses except when there appears on record some fact or circumstance of weight and influence which the trial court has overlooked, misapprehended, or misinterpreted.[15] This rule is consistent with the reality that the trial court is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial.[16] Thus, factual findings of the trial court, its calibration of the testimonies of the witnesses, and its conclusions anchored on its findings are accorded by the appellate court high respect, if not conclusive effect, more so when affirmed by the Court of Appeals, as in this case. A successful prosecution for the illegal sale of dangerous/prohibited drugs must establish the following elements:

(1) identities of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor.[17] As correctly found by the trial court, accused-appellant was caught in a buy-bust operation. He was caught in flagrante delicto selling a dangerous drug, methamphetamine hydrochloride or shabu, to PO2 Noe Sembran on 15 July 2003 at the public market of Rosales, Pangasinan, established not only by the clear, straightforward, and convincing testimony of poseurbuyer PO2 Noe Sembran and corroborated by PO1 Rosauro Valdez, but also by accusedappellant's testimony. Accused-appellant himself confirmed and admitted to the occurrence of said transaction. Following his testimony, he admitted to taking the P400.00 left by PO2 Sembran for the purchase of shabu, thereafter going to his alleged source in Urdaneta City, and then returning with the shabu to the Rosales Public Market, and handing the sachet over to PO2 Sembran. The foregoing were not only undisputed but were, in fact, admitted by accused-appellant himself in his testimony. Thus, there is no denying that the said transaction indeed took place. Desperate to get himself absolved from culpability, accused-appellant submits in the alternative that the facts as presented by the prosecution reveal that the law enforcers, specifically PO2 Sembran, instigated him to sell shabu. Accused-appellant claims that it was PO2 Sembran who approached and

asked him to buy shabu, leaving the money even if he said he did not know anybody selling shabu. We find no instigation in this case. The general rule is that it is no defense to the perpetrator of a crime that facilities for its commission were purposely placed in his way, or that the criminal act was done upon the "decoy solicitation" of persons seeking to expose the criminal, or that detectives feigning complicity in the act were present and apparently assisting in its commission. This is particularly true in that class of cases where the offense is of a kind habitually committed, and the solicitation merely furnishes evidence of a course of conduct. Mere deception by the detective will not shield defendant, if the offense was committed by him free from the influence or the instigation of the detective.[18] Here, the law enforcers received a report from their confidential informant that accused-appellant was engaged in illegal drug trade in the public market of Rosales. Poseur-buyer PO2 Sembran then pretended to be engaged in the drug trade himself and, with the help of his fellow buy-bust operatives, arrested accused-appellant in the act of delivering the shabu to him. In an entrapment, ways and means are resorted to for the purpose of trapping and capturing the lawbreakers in the execution of their criminal plan. In instigation, the instigator practically induces the would-be defendant into the commission of the offense, and himself becomes a co-principal. Entrapment is no bar to prosecution and conviction; in instigation, the

defendant would have to be acquitted. A buy-bust operation is a form of entrapment, which in recent years has been accepted as a valid and effective mode of arresting violators of the Dangerous Drugs Law. In a buy-bust operation, the idea of committing a crime originates from the offender, without anybody inducing or prodding him to commit the offense.[19] In the case at bar, the buy-bust operation was formed by the police officers precisely to test the veracity of the tip and in order to apprehend the perpetrator. While accused-appellant claims that it was PO2 Sembran who approached and asked him to buy shabu for him, the same cannot be considered as an act of instigation, but an act of "feigned solicitation." Instigation is resorted to for purposes of entrapment, based on the tip received from the police informant that accused-appellant was peddling illegal drugs in the public market of Rosales. In fact, it was accused-appellant who suggested to PO2 Sembran to use shabu; and, despite accusedappellant's statement that he did not know anybody selling shabu, he still took the money from PO2 Sembran and directly went to Urdaneta, where he claimed to have bought the illegal drug. Then he returned to the Rosales public market and gave the drug to PO2 Sembran. The records of the case disclose that PO2 Noe Sembran, the designated poseur-buyer in the buy-bust operation, positively identified accused-appellant as the seller of the confiscated shabu. His testimony was corroborated by PO1 Rosauro

Valdez. The object of the corpus delicti was duly established by the prosecution. The sachet confiscated from accused-appellant was positively identified, marked and preserved as evidence, and upon laboratory examination yielded positive for shabu. Accused-appellant's assertion that the police operatives failed to comply with the proper procedure in the chain of custody of the seized drugs is premised on the idea that non-compliance with the procedure in Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165 creates an irregularity and overcomes the presumption of regularity accorded police authorities in the performance of their official duties. The argument fails. Contrary to appellant's claim, there is no broken chain in the custody of the seized items, later on determined to be shabu, from the moment of its seizure by the entrapment team, to its delivery to the investigating officer, to the time it was brought to the forensic chemist at the PNP Crime Laboratory for laboratory examination. It was duly established by documentary, testimonial, and object evidence, including the markings on the plastic sachet containing the shabu indicating that the substance tested by the forensic chemist, whose laboratory tests were well-documented, was the same as that taken from accusedappellant. Failure of the buy-bust team to strictly comply with the provisions of said section did not prevent the

presumption of regularity in the performance of duty from applying. [20] The procedure for the custody and disposition of confiscated, seized and/or surrendered dangerous drugs, among others, is provided under Section 21(1), Article II of Republic Act No. 9165: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165, which implements said provision, reads: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; x x x Provided, further, that non-compliance with these requirements under justifiable

grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. The above provision further states that non-compliance with the stipulated procedure, under justifiable grounds, shall not render void and invalid such seizures of and custody over said items, for as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officers. The evident purpose of the procedure provided for is the preservation of the integrity and evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or the innocence of the accused. Its absence, by itself, is not fatal to the prosecution's case and will not discharge accused-appellant from his crime. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused. In the instant case, the integrity of the drugs seized remained intact, and the crystalline substance contained therein was later on determined to be positive for methamphetamine hydrochloride (shabu). Before the enactment of Republic Act No. 9165, the requirements contained in Section 21(1) were already present, per Dangerous Drugs Board Regulation No. 3, Series of 1979. Despite such regulation and the non-compliance therewith by the buy-bust team, the Court still applied

the presumption of regularity, holding: The failure of the arresting police officers to comply with said DDB Regulation No. 3, Series of 1979 is a matter strictly between the Dangerous Drugs Board and the arresting officers and is totally irrelevant to the prosecution of the criminal case for the reason that the commission of the crime of illegal sale of a prohibited drug is considered consummated once the sale or transaction is established x x x and the prosecution thereof is not undermined by the failure of the arresting officers to comply with the regulations of the Dangerous Drugs Board. [21] Assuming arguendo that the presumption of regularity in the performance of official duty will not apply due to the failure to comply with Section 21(a), the same will not automatically lead to the exoneration of the accused. Accusedappellant's conviction was based not solely on said presumption, but on the documentary and real evidence; and, more importantly, on the oral evidence of prosecution witnesses, whom we found to be credible. One witness is sufficient to prove the corpus delicti - that there was a consummated sale between the poseur-buyer and the accused there being no quantum of proof as to the number of witnesses to prove the same. To emphasize, accusedappellant himself verified in his testimony that the said transaction took place. The inconsistencies pointed out by the defense pertaining to whether or not he was already inside the public market of Rosales at the time the

operatives returned, or if the buybust team saw him alighting from a tricycle, is an inconsistency immaterial to the commission of the offense and, thus, cannot affect the overall credibility of the prosecution witnesses. The records of the case indicate that after his arrest, accused-appellant was taken into police custody. After the arrest, the seized item, which had the marking "EN" and alleged to contain shabu, was brought to the PNP crime laboratory for examination.[22] The request for laboratory examination and transfer of the confiscated sachet to the PNP crime laboratory was prepared by Chief of Police Policarpio C. Cayabyab, Jr.[23] The request indicated that the seized item was delivered by PO3 Resuello, Jr. and received by Forensic Chemist P/Insp. Emelda Besarra Roderos,[24] the same person who conducted laboratory tests on the substance. The transparent plastic sachet containing a white crystalline substance was later on determined to be positive for methylamphetamine hydrochloride or shabu. PO2 Sembran positively identified the plastic sachet containing shabu, which he had bought from accusedappellant in the buy-bust operation. Thus, the identity of the shabu taken from accused-appellant had been duly preserved and established by the prosecution. Besides, the integrity of the evidence is presumed to be preserved, unless there is a showing of bad faith, ill will, or proof that the evidence has been tampered with. The accusedappellant in this case bears the burden of making some showing

that the evidence was tampered or meddled with to overcome the presumption of regularity in the handling of exhibits by public officers and the presumption that public officers properly discharged their duties. There is no doubt that the sachet marked "EN," which was submitted for laboratory examination and found to be positive for shabu, was the same one sold by accused-appellant to the poseur-buyer PO2 Sembran during the buy-bust operation. Finally, accused-appellant's claim that he is a victim of a frame-up is viewed by this Court with disfavor, because being a victim can easily be feigned and fabricated. There being no proof of ill motive on the part of the police operatives to falsely accuse him of such a grave offense, the presumption of regularity in the performance of official duty and the findings of the trial court with respect to the credibility of witnesses shall prevail over the claim of the accused-appellant.[25] While the presumption of regularity in the performance of official duty by law enforcement agents should not by itself prevail over the presumption of innocence, for the claim of frame-up to prosper, the defense must be able to present clear and convincing evidence to overcome this presumption of regularity, which the defense was not able to proffer. Accused-appellant was charged with the unauthorized sale and delivery of a dangerous drug in violation of the provisions of Section 5, Article II of Republic Act No. 9165. Under Section 5, Article II of Republic Act No. 9165, the penalty of

life imprisonment to death and a fine ranging from P500,000.00 to P1,000,000.00 shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved. Thus, the trial court, as affirmed by the Court of Appeals, correctly imposed the penalty of life imprisonment and a fine of P500,000.00. WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R. CR No. 00304 convicting accused-appellant ELLY NAELGA of violation of Section 5, Article II of Republic Act No. 9165, and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P500,000.00 is hereby AFFIRMED. SO ORDERED.