G.R. No.

116736 July 24, 1997 The Notice of Appeal, dated March 9, 1994, was thus filed by Atty. Evaristo P. Velicaria8 who
took over from the Public Attorney's Office as counsel for the accused.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. The Facts
BENJAMIN ORTEGA, JR. y CONJE, MANUEL GARCIA y RIVERA and JOHN DOE, accused,
Evidence for the Prosecution
BENJAMIN ORTEGA, JR. y CONJE and MANUEL GARCIA y RIVERA, accused-appellants.
The trial court summarized the testimonies of the prosecution witnesses as follows:9

PANGANIBAN, J.: Diosdado Quitlong substantially testified that on October 15, 1992 at about 5:30 in the
afternoon, he, the victim Andre Mar Masangkay, Ariel Caranto, Romeo Ortega, Roberto San
A person who commits a felony is liable for the direct, natural and logical consequences of Andres were having a drinking spree in the compound near the house of Benjamin Ortega, Jr.
his wrongful act even where the resulting crime is more serious than that intended. Hence, at Daangbakal, Dalandanan, Valenzuela, Metro Manila. That while they were drinking,
an accused who originally intended to conceal and to bury what he thought was the lifeless accused Benjamin Ortega, Jr. and Manuel Garcia who were [already] drunk arrived and
body of the victim can be held liable as a principal, not simply as an accessory, where it is joined them. That victim Andre Mar Masangkay answered the call of nature and went to the
proven that the said victim was actually alive but subsequently died as a direct result of such back portion of the house. That accused Benjamin Ortega, Jr. followed him and later they
concealment and burial. Nonetheless, in the present case, Appellant Garcia cannot be held [referring to the participants in the drinking session] heard the victim Andre Mar shouted,
liable as a principal because the prosecution failed to allege such death through drowning in "Don't, help me!" (Huwag, tulungan ninyo ako!) That he and Ariel Caranto ran towards the
the Information. Neither may said appellant be held liable as an accessory due to his back portion of the house and [they] saw accused Benjamin Ortega, Jr., on top of Andre Mar
relationship with the principal killer, Appellant Ortega, who is his brother-in-law. Masangkay who was lying down in a canal with his face up and stabbing the latter with a long
bladed weapon. That Ariel Caranto ran and fetched Benjamin Ortega, Sr., the father of
Statement of the Case accused Benjamin, Jr. That he [Quitlong] went to Romeo Ortega in the place where they were
having the drinking session [for the latter] to pacify his brother Benjamin, Jr. That Romeo
This case springs from the joint appeal interposed by Appellants Benjamin Ortega, Jr. and Ortega went to the place of the stabbing and together with Benjamin Ortega, Jr. and Manuel
Manuel Garcia from the Decision,1 dated February 9, 1994 written by Judge Adriano R. Garcia lifted Andre Mar Masangkay from the canal and brought Andre Mar to the well and
Osorio,2 finding them guilty of murder. dropped the latter inside the well. That Romeo Ortega, Benjamin Ortega, Jr. and Manuel
Garcia then dropped stones measuring 11 to 12 inches high, 2 feet in length and 11 to 12
Appellants were charged by State Prosecutor Bernardo S. Razon in an Information3 dated inches in weight to the body of Andre Mar Masangkay inside the well. That Romeo Ortega
October 19, 1992, as follows: warned him [Quitlong] not to tell anybody of what he saw. That he answered in the
affirmative and he was allowed to go home. That his house is about 200 meters from Romeo
That on or about October 17, 1992 in Valenzuela, Metro Manila, Philippines and within the Ortega's house. That upon reaching home, his conscience bothered him and he told his
jurisdiction of this Honorable Court, the above-named accused, conspiring together and mother what he witnessed. That he went to the residence of Col. Leonardo Orig and
mutually helping one another, without any justifiable cause, with treachery and evident reported the matter. That Col. Orig accompanied him to the Valenzuela Police Station and
premeditation and with abuse of superior strenght (sic) and with deliberate intent to kill, did some police officers went with them to the crime scene. That accused Benjamin Ortega, Jr.
then and there willfully, unlawfully and feloniously attack, assault and stab repeatedly with a and Manuel Garcia were apprehended and were brought to the police station.
pointed weapon on the different parts of the body one ANDRE MAR MASANGKAY y ABLOLA,
thereby inflicting upon the latter serious physical injuries which directly caused his death. On cross-examination, he said that he did not talk to the lawyer before he was presented as
witness in this case. That he narrated the incident to his mother on the night he witnessed
During arraignment, Appellants Ortega and Garcia, assisted by counsel de oficio,4 pleaded the killing on October 15, 1992. That on October 15, 1992 at 5:30 in the afternoon when he
not guilty to the charge.5 Accused "John Doe" was then at large.6 After trial in due course, arrived, victim Andre Mar Masangkay, Romeo Ortega, Serafin and one Boyet were already
the court a quo promulgated the questioned Decision. The dispositive portion reads:7 having [a] drinking spree and he joined them. That accused Benjamin Ortega, Jr. and Manuel
Garcia were not yet in the place. That the stabbing happened between 12:00 midnight and
WHEREFORE, finding accused Benjamin Ortega, Jr. y Conje and Manuel Garcia y Rivera 12:30 a.m. That they drank gin with finger foods such as pork and shell fish. That he met the
[g]uilty beyond reasonable doubt of the crime charged, the Court hereby sentenced (sic) victim Andre Mar Masangkay only on that occasion. That accused Benjamin Ortega, Jr. and
them to suffer the penalty of RECLUSION PERPETUA and to pay the costs of suit. Manuel Garcia joined them at about 11:00 p.m. That there was no altercation between
Benjamin Ortega, Jr. and Manuel Garcia in one hand and Andre Mar Masangkay, during the
Accused are hereby ordered to pay the offended party the sum of P35,000.00 for funeral drinking session. That at about 12:30 a.m. Andre Mar Masangkay answered the call of nature
expenses of deceased Andre Mar Masangkay and death indemnity of P50,000.00. and went to the back portion of the house. That he cannot see Andre Mar Masangkay from
the place they were having the drinking session. That he did not see what happened to Andre
Mar Masangkay. That he only heard Masangkay asking for help. That accused Manuel Garcia muddy particles. The brain is pale due to loss of blood. The stomach is one half filled with
was still in the drinking session when he heard Masangkay was asking for help. That muddy particles which could [have been] taken in when submerged in water.
Benjamin Ortega, Jr. and Manuel Garcia are his friends and neighbors. That when he heard
Andre Mar Masangkay was asking for help, he and Ariel Caranto ran to the back portion of On cross-examination, he said that he found 13 stab wounds on the body of the victim. That
the house and saw Benjamin Ortega, Jr. on top of Andre Mar Masangkay and stabbing the he cannot tell if the assailant or the victim were standing. That it is possible that the stab
latter. That Andre Mar Masangkay was lying down with his back in the canal and Benjamin wounds was (sic) inflicted when both [referring to participants] were standing or the victim
Ortega, Jr. on top stabbing the former. That he did not see any injuries on Benjamin Ortega, was lying down and the assailant was on top. That he cannot tell the number of the
Jr. That he called Romeo Ortega to pacify his brother Benjamin, Jr. That he did not do assailants.
anything to separate Benjamin Ortega, Jr. and Masangkay. That he knows that Andre Mar
Masangkay was courting Raquel Ortega. That Raquel Ortega asked permission from Andre Evidence for the Appellants
Mar Masangkay when she left between 8:00 and 9:00 p.m. That there was no trouble that
occurred during the drinking session. Appellant Manuel Garcia testified that in the early morning of October 15, 1992, he and his
wife, Maritess Garcia, brought their feverish daughter, Marjorie, to the Polo Emergency
PNP Superintendent Leonardo Orig substantially testified that Diosdado Quitlong is his Hospital. He left the hospital at seven o'clock in the morning, went home, changed his
neighbor for about 9 years. That on October 16, 1992 at 5:00 in the morning, he was clothes and went to work. 10 After office hours, he and Benjamin Ortega, Jr. passed by the
summoned by Diosdado Quitlong and reported to him the stabbing incident that occurred at canteen at their place of work. After drinking beer, they left at eight o'clock in the evening
Daangbakal near the subdivision he is living. That he relayed the information to the and headed home. En route, they chanced on Diosdado Quitlong alias Mac-mac and Andre
Valenzuela Police Station and a police team under police officer Param accompanied them to Mar Masangkay, who invited them to join their own drinking spree. Thereupon, Appellant
the place. That he asked the police officers to verify if there is a body of person inside the Garcia's wife came and asked him to go home because their daughter was still sick. To
well. That the well was covered with stones and he asked the police officers to seek the help alleviate his daughter's illness, he fetched his mother-in-law who performed a ritual called
of theneighbors (sic) to remove the stones inside the well. That after the stones were "tawas." After the ritual, he remained at home and attended to his sick daughter. He then fell
removed, the body of the victim was found inside the well. That the lifeless body was pulled asleep but was awakened by police officers at six o'clock in the morning of the following day.
out from the well. That the body has several stab wounds. That he came to know the victim
as Andre Mar Masangkay. That two men were arrested by the police officers. Maritess Garcia substantially corroborated the testimony of her husband. She however
added two other participants in the drinking session aside from Diosdado Quitlong alias Mac-
On cross-examination, he said that he saw the body when taken out of the well with several mac and Andre Mar Masangkay, namely, a Mang Serafin and Boyet Santos. 11
stab wounds. That Diosdado Quitlong told him that he was drinking with the victim and the
assailants at the time of the incident. That Benjamin Ortega, Jr. stabbed the victim while the Benjamin Ortega, Jr. likewise substantially corroborated the testimony of Appellant Manuel
latter was answering the call of nature. Garcia. 12 According to him, between eleven and twelve o'clock in the evening, Masangkay
left the drinking session. Thirty (30) minutes after Masangkay left, he also left the drinking
NBI Medico Legal Officer Dr. Ludivico J. Lagat substantially testified that he conducted [an] place to urinate. 13 He went behind the house where he saw Masangkay peeping through
autopsy on the cadaver of Andre Mar Masangkay on October 16, 1992 at the Valenzuela the room of his sister Raquel. He ignored Masangkay and continued urinating. 14 After he
Memorial Homes located at Macarthur Highway. That he prepared the autopsy report and was through, Masangkay approached him and asked where his sister was. He answered that
the sketch of human head and body indicating the location of the stab wounds. That the he did not know. Without warning, Masangkay allegedly boxed him in the mouth, an attack
cause of death is multiple stab wounds, contributory, [a]sphyxia by submersion in water. that induced bleeding and caused him to fall on his back. When he was about to stand up,
That there were 13 stab wounds, 8 of which were on the frontal part of the body, 2 at the Masangkay drew a knife and stabbed him, hitting him on the left arm, thereby immobilizing
back and there were contused abrasions around the neck and on the left arm. There was stab him. Masangkay then gripped his neck with his left arm and threatened to kill him. Unable to
wound at the left side of the neck. That the contused abrasion could be produced by cord or move, Ortega shouted for help. Quitlong came and, to avoid being stabbed, grabbed
wire or rope. That there is (an) incised wound on the left forearm. That the stab wounds Masangkay's right hand which was holding the knife. Quitlong was able to wrest the knife
which were backward downward of the body involved the lungs. That the victim was in front from Masangkay and, with it, he stabbed Masangkay ten (10) times successively, in the left
of the assailant. That the stab wound on the upper left shoulder was caused when the chest and in the middle of the stomach. When
assailant was in front of the victim. That the assailant was in front of the victim when the the stabbing started, Ortega moved to the left side of Masangkay to avoid being hit.15
stab wound near the upper left armpit was inflicted as well as the stab wound on the left Quitlong chased Masangkay who ran towards the direction of the well. Thereafter, Ortega
chest wall. That the stab wound on the back left side of the body and the stab wound on the went home and treated his injured left armpit and lips. Then, he slept.
back right portion of the body may be produced when the assailant was at the back of the
victim. That the assailant was in front of the victim when the stab wound[s] on the left elbow When he woke up at six o'clock the following morning, he saw police officers in front of his
and left arm were inflicted. That the large airway is filled with muddy particles indicating that house. Taking him with them, the lawmen proceeded to the well. From the railroad tracks
the victim was alive when the victim inhaled the muddy particles. The heart is filled with where he was asked to sit, he saw the police officers lift the body of a dead person from the
multiple hemorrhage, loss of blood or decreased of blood. The lungs is filled with water or
well. He came to know the identity of the dead person only after the body was taken to the First Issue: Liability of Appellant Ortega
police headquarters. 16
The witnesses for the prosecution and defense presented conflicting narrations. The
The Trial Court's Discussion prosecution witnesses described the commission of the crime and positively identified
appellants as the perpetrators. The witnesses for the defense, on the other hand, attempted
The trial court explained its basis for appellants' conviction as follows: 17 to prove denial and alibi. As to which of the two contending versions speaks the truth
primarily rests on a critical evaluation of the credibility of the witnesses and their stories. In
The Court is convinced that the concerted acts of accused Benjamin Ortega, Jr., Manuel this regard, the trial court held: 19
Garcia, Jr. and one Romeo Ortega in lifting, carrying and dumping the victim Andre Mar
Masangkay who was still alive and breathing inside the deep well filled with water, head first The Court has listened intently to the narration of the accused and their witnesses and the
and threw big stones/rocks inside the well to cover the victim is a clear indication of the prosecution witnesses and has keenly observed their behavior and demeanor on the witness
community of design to finish/kill victim Andre Mar Masangkay. Wounded and unarmed stand and is convinced that the story of the prosecution is the more believable version.
victim Andre Mar Masangkay was in no position to flee and/or defend himself against the Prosecution eyewitness Diosdado Quitlong appeared and sounded credible and his credibility
three malefactors. Conspiracy and the taking advantage of superior strength were in is reinforced by the fact that he has no reason to testify falsely against the accused. It was
attendance. The crime committed by the accused is Murder. Diosdado Quitlong who reported the stabbing incident to the police authorities. If Quitlong
stabbed and killed the victim Masangkay, he will keep away from the police authorities and
Concert of action at the moment of consummating the crime and the form and manner in will go in hiding. . . .
which assistance is rendered to the person inflicting the fatal wound may determine
complicity where it would not otherwise be evidence (People vs. Yu, 80 SCRA 382 (1977)). Because the trial court had the opportunity to observe the witnesses' demeanor and
deportment on the stand as they rendered their testimonies, its evaluation of the credibility
Every person criminally liable for a felony is also civilly liable. Accused (m)ust reimburse the of witnesses is entitled to the highest respect. Therefore, unless the trial judge plainly
heirs of victim Andre Mar Masangkay the amount of P35,000.00 for the funeral expenses of overlooked certain facts of substance and value which, if considered, might affect the result
the deceased. of the case, his assessment of credibility must be respected. 20

The Issues In the instant case, we have meticulously scoured the records and found no reason to
reverse the trial court's assessment of the credibility of the witnesses and their testimonies
In their ten-page brief, appellants fault the trial court with the 21 insofar as Appellant Ortega is concerned. The narration of Eyewitness Diosdado Quitlong
following: appears to be spontaneous and consistent. It is straightforward, detailed, vivid and logical.
Thus, it clearly deserves full credence.
I. The trial court erred in holding that there is conspiracy on the basis of the
prosecution's evidence that at the time both accused and one Romeo Ortega lifted the body On the other hand, in asserting alibi and denial, the defense bordered on the unbelievable.
of Andrew Masangkay from where he succumbed due to stab wounds and brought and drop Appellant Ortega claimed that after he was able to free himself from Masangkay's grip, he
said body of Andrew Masangkay to the well to commit murder; went home, treated his injuries and slept. 22 This is not the ordinary reaction of a person
II. The trial court erred in finding and holding that Andrew Masangkay was still alive at assaulted. If Ortega's version of the assault was true, he should have immediately reported
the time his body was dropped in the well; the matter to the police authorities, if only out of gratitude to Quitlong who came to his
III. The trial court erred in convicting Manuel Garcia and in not acquitting the latter of rescue. Likewise, it is difficult to believe that a man would just sleep after someone was
the crime charged; and stabbed in his own backyard. Further, we deem it incredible that Diosdado Quitlong would
IV. The trial court erred in not finding that if at all Benjamin Ortega Jr. is guilty only of stab Masangkay ten (10) times successively, completely ignoring Benjamin Ortega, Jr. who
homicide alone. was grappling with Masangkay. Also inconsistent with human experience is his narration that
Masangkay persisted in choking him instead of defending himself from the alleged successive
On the basis of the records and the arguments raised by the appellants and the People, we stabbing of Quitlong.23 The natural tendency of a person under attack is to defend himself
believe that the question to be resolved could be simplified thus: What are the criminal and not to persist in choking a defenseless third person.
liabilities, if any, of Appellants Ortega and Garcia?
Murder or Homicide?
The Court's Ruling
Although treachery, evident premeditation and abuse of superior strength were alleged in
We find the appeal partly meritorious. Appellant Ortega is guilty only of homicide. Appellant the information, the trial court found the presence only of abuse of superior strength.
Garcia deserves acquittal.
We disagree with the trial court's finding. Abuse of superior strength requires deliberate
intent on the part of the accused to take advantage of such superiority. It must be shown Q What happened next?
that the accused purposely used excessive force that was manifestly out of proportion to the
means available to the victim's defense. 24 In this light, it is necessary to evaluate not only A And afterwards we heard a shout and the shout said "Huwag, tulungan n'yo ako".
the physical condition and weapon of the protagonists but also the various incidents of the
event. 25 Q From whom did you hear this utterance?

In his testimony, Witness Dominador Quitlong mentioned nothing about Appellant Ortega's A The shout came from Andrew Masangkay.
availment of force excessively out of proportion to the means of defense available to the
victim to defend himself. Quitlong described the assault made by Appellant Ortega as Q After Benjamin Ortega, Jr. followed Andrew Masangkay to answer a call of nature
follows: 26 and after you heard "huwag, tulungan n'yo ako" coming from the mouth of the late Andrew
Masangkay, what happened next?
ATTY. ALTUNA:
A Ariel Caranto and I ran towards the back portion of the house.
Q Will you please tell me the place and date wherein you have a drinking spree with
Andrew Masangkay and where you witnessed a stabbing incident? Q And what did you see?

A It was on October 15, 1992, sir, at about 5:30 in the afternoon we were drinking in A And I saw that Benjamin Ortega, Jr. was on top of Andrew Masangkay and he was
the house of Mr. Benjamin Ortega, Sr., because the house of Benjamin Ortega Sr. and the stabbing Masangkay.
house of his son Benjamin Ortega, Jr. are near each other.
Q Will you please demonstrate to the Honorable Court how the stabbing was done
xxx xxx xxx telling us the particular position of the late Andrew Masangkay and how Benjamin Ortega, Jr.
proceeded with the stabbing against the late victim, Andrew Masangkay?
Q Mr. Witness, who were the companions of said persons, Benjamin Ortega, Jr.,
Manuel Garcia, you (sic) in drinking in said place? INTERPRETER:

A The other companions in the drinking session were Ariel Caranto y Ducay, Roberto (At this juncture, the witness demonstrating.)
San Andres and Romeo Ortega.
Andrew Masangkay was lying down on a canal with his face up, then Benjamin Ortega, Jr.
Q What about this victim, Andrew Masangkay, where was he at that time? was "nakakabayo" and with his right hand with closed fist holding the weapon, he was
thrusting this weapon on the body of the victim, he was making downward and upward
A Also the victim, Andrew Masangkay, he was also there. motion thrust.

Q You said that the two accused, Manuel Garcia and Benjamin Ortega, Jr. arrived ATTY. ALTUNA: (To the witness)
drunk and joined the group?
Q How many times did Benjamin Ortega, Jr. stabbed Andrew Masangkay?
A Yes, sir.
A I cannot count the number of times.
Q What happened next?
It should be noted that Victim Masangkay was a six-footer, whereas Appellant Ortega, Jr. was
A While we were there together and we were drinking ... (interrupted by Atty. only five feet and five inches tall. 27 There was no testimony as to how the attack was
Altuna) initiated. The accused and the victim were already grappling when Quitlong arrived. Nothing
in the foregoing testimony and circumstances can be interpreted as abuse of superior
Q Who is that "we"? strength. Hence, Ortega is liable only for homicide, not murder.

A Referring to Benjamin Ortega, Jr., Manuel Garcia, Ariel Caranto, Romeo Ortega, Second Issue: Liability of Appellant Manuel Garcia
Roberto San Andres, myself and Andrew Masangkay. Andrew Masangkay answer to a call of
nature and went to the back portion of the house, and Benjamin Ortega, Jr. followed him Appellants argue that the finding of conspiracy by the trial court "is based on mere
where he was. assumption and conjecture . . ." 28 Allegedly, the medico-legal finding that the large airway
was "filled with muddy particles indicating that the victim was alive when the victim inhaled Q Second point?
the muddy particles" did not necessarily mean that such muddy particles entered the body of
the victim while he was still alive. The Sinumpaang Salaysay of Quitlong stated, "Nilubayan A The heart is pale with some multiple petechial hemorrhages at the anterior surface.
lang nang saksak nang mapatay na si Andrew ni Benjamin Ortega, Jr." Thus, the prosecution
evidence shows Masangkay was already "dead" when he was lifted and dumped into the Q And this may [be] due to stab wounds or asphyxia?
well. Hence, Garcia could be held liable only as an accessory. 29
A These are the effects or due to asphyxia or decreased amount of blood going to the
We do not agree with the above contention. Article 4, par. 1, of the Revised Penal Code heart.
states that criminal liability shall be incurred by "any person committing a felony (delito)
although the wrongful act done be different from that which he intended." The essential Q This asphyxia are you referring to is the drowning?
requisites for the application of this provision are that (a) the intended act is felonious; (b)
the resulting act is likewise a felony; and (c) the unintended albeit graver wrong was A Yes, sir.
primarily caused by the actor's wrongful acts. In assisting Appellant Ortega, Jr. carry the body
of Masangkay to the well, Appellant Garcia was committing a felony. The offense was that of Q Next point is the lungs?
concealing the body of the crime to prevent its discovery, i.e. that of being an accessory in
the crime of homicide. 30 Although Appellant Garcia may have been unaware that the victim A The lungs is also filled with multiple petechial hemorrhages.
was still alive when he assisted Ortega in throwing the body into the well, he is still liable for
the direct and natural consequence of his felonious act, even if the resulting offense is worse Q What could have caused this injury of the lungs?
than that intended.
A This is due to asphyxia or the loss of blood.
True, Appellant Garcia merely assisted in concealing the body of the victim. But the autopsy
conducted by the NBI medico-legal officer showed that the victim at that time was still alive, Q Are you saying that the lungs have been filled with water or muddy particles?
and that he died subsequently of drowning.31 That drowning was the immediate cause of
death was medically demonstrated by the muddy particles found in the victim's airway, lungs A Yes, sir.
and stomach. 32 This is evident from the expert testimony given by the medico-legal officer,
quoted below: 33 Q And, precisely, you are now testifying that due to stab wounds or asphyxia, the
lungs have been damaged per your Report?
ATTY. ALTUNA:
A Yes, sir.
Q Will you please explain this in simple language the last portion of Exhibit N,
beginning with "tracheo-bronchial tree", that is sentence immediately after paragraph 10, Q Continuing this brain and other visceral organs, pale. What is this?
2.5 cms. Will you please explain this?
A The paleness of the brain and other visceral organs is due to loss of blood.
A The trancheo-bronchial tree is filled with muddy particles.
Q And, of course, loss of blood could be attributed to the stab wound which is
Q I ask you a question on this. Could the victim have possibly get this particular number 13?
material?
A Yes, sir.
A No, sir.
Q And the last one, under the particular point "hemothorax"?
Q What do you mean by no?
A It indicates at the right side. There are around 1,400 cc of blood that accumulate at
A A person should be alive so that the muddy particles could be inhaled. the thoraxic cavity and this was admixed with granular materials?

Q So, in short, you are telling or saying to us that if there is no inhaling or the taking Q And what cause the admixing with granular materials on said particular portion of
or receiving of muddy particles at that time, the person is still alive? the body?

A Yes, sir. A Could be muddy particles.

Q Due to the taking of maddy (sic) materials as affected by asphyxia? Am I correct? muddy particles. The unrebutted testimony of the medico-legal officer that all these muddy
particles were ingested when the victim was still alive proved that the victim died of
A It's due to stab wounds those muddy particles which set-in thru the stab wounds. drowning inside the well.

Q So, because of the opening of the stab wounds, the muddy particles now came in, The drowning was the direct, natural and logical consequence of the felony that. Appellant
in that particular portion of the body and caused admixing of granular materials? Garcia had intended to commit; it exemplifies praeter intentionem covered by Article 4, par.
1, of the Revised Penal Code. Under this paragraph, a person may be convicted of homicide
A Yes, sir. although he had no original intent to kill. 35

Q Continuing with your report, particularly, the last two portions, will you please In spite of the evidence showing that Appellant Garcia could be held liable as principal in the
explain the same? crime of homicide, there are, however, two legal obstacles barring his conviction, even as an
accessory — as prayed for by appellants' counsel himself.
A The hemoperitoneum there are 900 cc of blood that accumulated inside the
abdomen. First. The Information accused Appellant Garcia (and Appellant Ortega) of "attack[ing],
assault[ing], and stab[bing] repeatedly with a pointed weapon on the different parts of the
Q And what could have cause the same? body one ANDRE MAR MASANGKAY y ABLOLA." The prosecution's evidence itself shows that
Garcia had nothing to do with the stabbing which was solely perpetrated by Appellant
A [T]he stab wound of the abdomen. Ortega. His responsibility relates only to the attempted concealment of the crime and the
resulting drowning of Victim Masangkay. The hornbook doctrine in our jurisdiction is that an
Q The last one, stomach 1/2 filled with muddy particles. Please explain the same? accused cannot be convicted of an offense, unless it is clearly charged in the complaint or
information. Constitutionally, he has a right to be informed of the nature and cause of the
A The victim could have taken these when he was submerged in water. accusation against him. To convict him of an offense other than that charged in the
complaint or information would be a violation of this constitutional right. 36 Section 14, par.
Q What is the take in? 2, of the 1987 Constitution explicitly guarantees the following:

A Muddy particles. (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
Q And he was still alive at that time? 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
A Yes, sir. (Emphasis supplied) 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
A Filipino authority on forensic medicine opines that any of the following medical findings that he has been duly notified and his failure to appear is unjustifiable. (Emphasis supplied)
may show that drowning is the cause of death: 34
In People vs. Pailano, 37 this Court ruled that there can be no conviction for rape on a
1. The presence of materials or foreign bodies in the hands of the victim. The woman "deprived of reason or otherwise unconscious" where the information charged the
clenching of the hands is a manifestation of cadaveric spasm in the effort of the victim to accused of sexual assault "by using force or intimidation," thus:
save himself from drowning.
2. Increase in volume (emphysema aquosum) and edema of the lungs (edema The criminal complaint in this case alleged the commission of the crime through the first
aquosum). method although the prosecution sought to establish at the trial that the complainant was a
3. Presence of water and fluid in the stomach contents corresponding to the medium mental retardate. Its purpose in doing so is not clear. But whatever it was, it has not
where the body was recovered. succeeded.

4. Presence of froth, foam or foreign bodies in the air passage found in the medium If the prosecution was seeking to convict the accused-appellant on the ground that he
where the victim was found. violated Anita while she was deprived of reason or unconscious, such conviction could not
5. Presence of water in the middle ear. have been possible under the criminal complaint as worded. This described the offense as
having been committed by "Antonio Pailano, being then provided with a scythe, by means of
The third and fourth findings were present in the case of Victim Masangkay. It was proven violence and intimidation, (who) did, then and there, wilfully, unlawfully and feloniously have
that his airpassage, or specifically his tracheo-bronchial tree, was filled with muddy particles carnal knowledge of the complainant, Anita Ibañez, 15 years of age, against her will'. No
which were residues at the bottom of the well. Even his stomach was half-filled with such mention was made of the second circumstance.
 3. By harboring, concealing, or assisting in the escape of the principal of the crime,
Conviction of the accused-appellant on the finding that he had raped Anita while she was provided the accessory acts with abuse of his public functions or whenever the author of the
unconscious or otherwise deprived of reason — and not through force and intimidation, crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief
which was the method alleged — would have violated his right to be informed of the nature Executive, or is known to be habitually guilty of some other crime.
and cause of the accusation against him. [Article IV, Sec. 19, Constitution of 1973; now Article
III, Sec. 14(2)] This right is safeguarded by the Constitution to every accused so he can Appellant Garcia, being a covered relative by affinity of the principal accused, Benjamin
prepare an adequate defense against the charge against him. Convicting him of a ground not Ortega, Jr., is legally entitled to the aforequoted exempting provision of the Revised Penal
alleged while he is concentrating his defense against the ground alleged would plainly be Code. This Court is thus mandated by law to acquit him.
unfair and underhanded. This right was, of course, available to the herein accused-appellant.
Penalty and Damages
In People vs. Ramirez, [fn: 69 SCRA 144] we held that a person charged with rape could not
be found guilty of qualified seduction, which had not been alleged in the criminal complaint The award of actual damages should be reduced to P31,790.00 from P35,000.00. The former
against him. In the case of People vs. Montes, [fn: 122 SCRA 409] the Court did not permit amount was proven both by documentary evidence and by the testimony of Melba Lozano, a
the conviction for homicide of a person held responsible for the suicide of the woman he was sister of the victim. 38 Of the expenses alleged to have been incurred, the Court can give
supposed to have raped, as the crime he was accused of — and acquitted — was not credence only to those that are supported by receipts and appear to have been genuinely
homicide but rape. More to the point is Tubb v. People of the Philippines, [fn: 101 Phil. 114] incurred in connection with the death of the victim. 39 However, in line with current
where the accused was charged with the misappropriation of funds held by him in trust with jurisprudence, 40 Appellant Ortega shall also indemnify the heirs of the deceased in the sum
the obligation to return the same under Article 315, paragraph l(b) of the Revised Penal of P50,000.00. Indemnity requires no proof other than the fact of death and appellant's
Code, but was convicted of swindling by means of false pretenses, under paragraph 2(b) of responsibility therefor. 43
the said Article, which was not alleged in the information. The Court said such conviction
would violate the Bill of Rights. The penalty for homicide is reclusion temporal under Article 249 of the Revised Penal Code,
which is imposable in its medium period, absent any aggravating or mitigating circumstance,
By parity of reasoning, Appellant Garcia cannot be convicted of homicide through drowning as in the case of Appellant Ortega. Because he is entitled to the benefits of the Indeterminate
in an information that charges murder by means of stabbing. Sentence Law, the minimum term shall be one degree lower, that is, prision mayor.

Second. Although the prosecution was able to prove that Appellant Garcia assisted in WHEREFORE, premises considered, the joint appeal is PARTLY GRANTED. Appellant Benjamin
"concealing . . . the body of the crime, . . . in order to prevent its discovery," he can neither Ortega, Jr. is found GUILTY of homicide and sentenced to ten (10) years of prision mayor
be convicted as an accessory after the fact defined under Article 19, par. 2, of the Revised medium, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion
Penal Code. The records show that Appellant Garcia is a brother-in-law of Appellant Ortega, temporal medium, as maximum. Appellant Ortega, Jr. is also ORDERED to pay the heirs of the
38 the latter's sister, Maritess, being his wife. 39 Such relationship exempts Appellant Garcia victim P50,000.00 as indemnity and P31,790.00 as actual damages. Appellant Manuel Garcia
from criminal liability as provided by Article 20 of the Revised Penal Code: is ACQUITTED. His immediate release from confinement is ORDERED unless he is detained for
some other valid cause.
Art. 20. Accessories who are exempt from criminal liability. — The penalties prescribed for
accessories shall not be imposed upon those who are such with respect to their spouses, SO ORDERED.
ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives
by affinity within the same degrees with the single exception of accessories falling within the
provisions of paragraph 1 of the next preceding article. G.R. No. 72964 January 7, 1988

On the other hand, "the next preceding article" provides: FILOMENO URBANO, petitioner,
vs.
Art. 19. Accessories. — Accessories are those who, having knowledge of the commission of HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE PHILIPPINES, respondents.
the crime, and without having participated therein, either as principals or accomplices, take
part subsequent to its commission in any of the following manners:
GUTIERREZ, JR., J.:
1. By profiting themselves or assisting the offender to profit by the effects of the
crime. This is a petition to review the decision of the then Intermediate Appellate Court which
2. By concealing or destroying the body of the crime, or the effects or instruments affirmed the decision of the then Circuit Criminal Court of Dagupan City finding petitioner
thereof, in order to prevent its discovery. Filomeno Urban guilty beyond reasonable doubt of the crime of homicide.
The records disclose the following facts of the case. xxx xxx xxx

At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno Urbano went Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties appeared before
to his ricefield at Barangay Anonang, San Fabian, Pangasinan located at about 100 meters this Station accompanied by brgy. councilman Felipe Solis and settled their case amicably, for
from the tobacco seedbed of Marcelo Javier. He found the place where he stored his palay they are neighbors and close relatives to each other. Marcelo Javier accepted and granted
flooded with water coming from the irrigation canal nearby which had overflowed. Urbano forgiveness to Filomeno Urbano who shoulder (sic) all the expenses in his medical treatment,
went to the elevated portion of the canal to see what happened and there he saw Marcelo and promising to him and to this Office that this will never be repeated anymore and not to
Javier and Emilio Erfe cutting grass. He asked them who was responsible for the opening of harbour any grudge against each other. (p. 87, Original Records.)
the irrigation canal and Javier admitted that he was the one. Urbano then got angry and
demanded that Javier pay for his soaked palay. A quarrel between them ensued. Urbano Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the
unsheathed his bolo (about 2 feet long, including the handle, by 2 inches wide) and hacked additional P300.00 was given to Javier at Urbano's house in the presence of barangay captain
Javier hitting him on the right palm of his hand, which was used in parrying the bolo hack. Soliven.
Javier who was then unarmed ran away from Urbano but was overtaken by Urbano who
hacked him again hitting Javier on the left leg with the back portion of said bolo, causing a At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General
swelling on said leg. When Urbano tried to hack and inflict further injury, his daughter Hospital in a very serious condition. When admitted to the hospital, Javier had lockjaw and
embraced and prevented him from hacking Javier. was having convulsions. Dr. Edmundo Exconde who personally attended to Javier found that
the latter's serious condition was caused by tetanus toxin. He noticed the presence of a
Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house healing wound in Javier's palm which could have been infected by tetanus.
about 50 meters away from where the incident happened. Emilio then went to the house of
Barangay Captain Menardo Soliven but not finding him there, Emilio looked for barrio On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings
councilman Felipe Solis instead. Upon the advice of Solis, the Erfes together with Javier went of Dr. Exconde are as follows:
to the police station of San Fabian to report the incident. As suggested by Corporal Torio,
Javier was brought to a physician. The group went to Dr. Guillermo Padilla, rural health Date Diagnosis
physician of San Fabian, who did not attend to Javier but instead suggested that they go to
Dr. Mario Meneses because Padilla had no available medicine. 11-14-80 ADMITTED due to trismus

After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo adm. at DX TETANUS
Padilla who conducted a medico-legal examination. Dr. Padilla issued a medico-legal
certificate (Exhibit "C" dated September 28, 1981) which reads: 1:30 AM Still having frequent muscle spasm. With diffi-

TO WHOM IT MAY CONCERN: #35, 421 culty opening his mouth. Restless at times. Febrile

This is to certify that I have examined the wound of Marcelo Javier, 20 years of age, married, 11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessa-
residing at Barangay Anonang, San Fabian, Pangasinan on October 23, 1980 and found the
following: tion of respiration and HR after muscular spasm.

1 -Incised wound 2 inches in length at the upper portion of the lesser palmar 02 inhalation administered. Ambo bag resuscita-
prominence, right.
tion and cardiac massage done but to no avail.
As to my observation the incapacitation is from (7-9) days period. This wound was presented
to me only for medico-legal examination, as it was already treated by the other doctor. (p. Pronounced dead by Dra. Cabugao at 4:18 P.M.
88, Original Records)
PMC done and cadaver brought home by rela-
Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their
differences. Urbano promised to pay P700.00 for the medical expenses of Javier. Hence, on tives. (p. 100, Original Records)
October 27, 1980, the two accompanied by Solis appeared before the San Fabian Police to
formalize their amicable settlement. Patrolman Torio recorded the event in the police blotter In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of
(Exhibit A), to wit: homicide before the then Circuit Criminal Court of Dagupan City, Third Judicial District.
Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano the natural and logical consequences resulting therefrom." (People v. Cardenas, 56 SCRA
guilty as charged. He was sentenced to suffer an indeterminate prison term of from TWELVE 631).
(12) YEARS of prision mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and
ONE (1) DAY of reclusion temporal, as maximum, together with the accessories of the law, to The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a
indemnify the heirs of the victim, Marcelo Javier, in the amount of P12,000.00 without result of which Javier suffered a 2-inch incised wound on his right palm; that on November
subsidiary imprisonment in case of insolvency, and to pay the costs. He was ordered confined 14, 1981 which was the 22nd day after the incident, Javier was rushed to the hospital in a
at the New Bilibid Prison, in Muntinlupa, Rizal upon finality of the decision, in view of the very serious condition and that on the following day, November 15, 1981, he died from
nature of his penalty. tetanus.

The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but Under these circumstances, the lower courts ruled that Javier's death was the natural and
raised the award of indemnity to the heirs of the deceased to P30,000.00 with costs against logical consequence of Urbano's unlawful act. Hence, he was declared responsible for Javier's
the appellant. death. Thus, the appellate court said:

The appellant filed a motion for reconsideration and/or new trial. The motion for new trial The claim of appellant that there was an efficient cause which supervened from the time the
was based on an affidavit of Barangay Captain Menardo Soliven (Annex "A") which states: deceased was wounded to the time of his death, which covers a period of 23 days does not
deserve serious consideration. True, that the deceased did not die right away from his
That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan, and up to wound, but the cause of his death was due to said wound which was inflicted by the
the present having been re-elected to such position in the last barangay elections on May 17, appellant. Said wound which was in the process of healing got infected with tetanus which
1982; ultimately caused his death.

That sometime in the first week of November, 1980, there was a typhoon that swept Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim suffered
Pangasinan and other places of Central Luzon including San Fabian, a town of said province; lockjaw because of the infection of the wound with tetanus. And there is no other way by
which he could be infected with tetanus except through the wound in his palm (tsn., p. 78,
That during the typhoon, the sluice or control gates of the Bued irrigation dam which Oct. 5, 1981). Consequently, the proximate cause of the victim's death was the wound which
irrigates the ricefields of San Fabian were closed and/or controlled so much so that water got infected with tetanus. And the settled rule in this jurisdiction is that an accused is liable
and its flow to the canals and ditches were regulated and reduced; for all the consequences of his unlawful act. (Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G.
5072; People v. Cornel 78 Phil. 418).
That due to the locking of the sluice or control gates of the dam leading to the canals and
ditches which will bring water to the ricefields, the water in said canals and ditches became Appellant's allegation that the proximate cause of the victim's death was due to his own
shallow which was suitable for catching mudfishes; negligence in going back to work without his wound being properly healed, and lately, that
he went to catch fish in dirty irrigation canals in the first week of November, 1980, is an
That after the storm, I conducted a personal survey in the area affected, with my secretary afterthought, and a desperate attempt by appellant to wiggle out of the predicament he
Perfecto Jaravata; found himself in. If the wound had not yet healed, it is impossible to conceive that the
deceased would be reckless enough to work with a disabled hand. (pp. 20-21, Rollo)
That on November 5, 1980, while I was conducting survey, I saw the late Marcelo Javier
catching fish in the shallow irrigation canals with some companions; The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier
was due to his own negligence, that Dr. Mario Meneses found no tetanus in the injury, and
That few days there after,or on November l5, l980, I came to know that said Marcelo Javier that Javier got infected with tetanus when after two weeks he returned to his farm and
died of tetanus. (p. 33, Rollo) tended his tobacco plants with his bare hands exposing the wound to harmful elements like
tetanus germs.
The motion was denied. Hence, this petition.
The evidence on record does not clearly show that the wound inflicted by Urbano was
In a resolution dated July 16, 1986, we gave due course to the petition. infected with tetanus at the time of the infliction of the wound. The evidence merely
confirms that the wound, which was already healing at the time Javier suffered the
The case involves the application of Article 4 of the Revised Penal Code which provides that symptoms of the fatal ailment, somehow got infected with tetanus However, as to when the
"Criminal liability shall be incurred: (1) By any person committing a felony (delito) although wound was infected is not clear from the record.
the wrongful act done be different from that which he intended ..." Pursuant to this provision
"an accused is criminally responsible for acts committed by him in violation of law and for all In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of
proximate cause:
xxx xxx xxx Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of
more than 6 days. Trismus is usually present, but dysphagia is absent and generalized spasms
... A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of are brief and mild. Moderately severe tetanus has a somewhat shorter incubation period and
American Jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows: onset time; trismus is marked, dysphagia and generalized rigidity are present, but ventilation
remains adequate even during spasms. The criteria for severe tetanus include a short
... "that cause, which, in natural and continuous sequence, unbroken by any efficient incubation time, and an onset time of 72 hrs., or less, severe trismus, dysphagia and rigidity
intervening cause, produces the injury, and without which the result would not have and frequent prolonged, generalized convulsive spasms. (Harrison's Principle of Internal
occurred."And more comprehensively, "the proximate legal cause is that acting first and Medicine, 1983 Edition, pp. 1004-1005; Emphasis supplied)
producing the injury, either immediately or by setting other events in motion, all constituting
a natural and continuous chain of events, each having a close causal connection with its Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on
immediate predecessor, the final event in the chain immediately effecting the injury as a the incubation period of the disease.
natural and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinarily prudent and intelligent person, In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried
have reasonable ground to expect at the moment of his act or default that an injury to some the bolo which Urbano used in hacking him. This incident took place on October 23, 1980.
person might probably result therefrom." (at pp. 185-186) After 22 days, or on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw
and muscle spasms. The following day, November 15, 1980, he died.
The issue, therefore, hinges on whether or not there was an efficient intervening cause from
the time Javier was wounded until his death which would exculpate Urbano from any liability If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus
for Javier's death. germs at the time, it is more medically probable that Javier should have been infected with
only a mild cause of tetanus because the symptoms of tetanus appeared on the 22nd day
We look into the nature of tetanus- after the hacking incident or more than 14 days after the infliction of the wound. Therefore,
the onset time should have been more than six days. Javier, however, died on the second day
The incubation period of tetanus, i.e., the time between injury and the appearance of from the onset time. The more credible conclusion is that at the time Javier's wound was
unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of patients inflicted by the appellant, the severe form of tetanus that killed him was not yet present.
become symptomatic within 14 days. A short incubation period indicates severe disease, and Consequently, Javier's wound could have been infected with tetanus after the hacking
when symptoms occur within 2 or 3 days of injury the mortality rate approaches 100 percent. incident. Considering the circumstance surrounding Javier's death, his wound could have
been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.
Non-specific premonitory symptoms such as restlessness, irritability, and headache are
encountered occasionally, but the commonest presenting complaints are pain and stiffness in The rule is that the death of the victim must be the direct, natural, and logical consequence
the jaw, abdomen, or back and difficulty swallowing. As the progresses, stiffness gives way to of the wounds inflicted upon him by the accused. (People v. Cardenas, supra) And since we
rigidity, and patients often complain of difficulty opening their mouths. In fact, trismus in the are dealing with a criminal conviction, the proof that the accused caused the victim's death
commonest manifestation of tetanus and is responsible for the familiar descriptive name of must convince a rational mind beyond reasonable doubt. The medical findings, however,
lockjaw. As more muscles are involved, rigidity becomes generalized, and sustained lead us to a distinct possibility that the infection of the wound by tetanus was an efficient
contractions called risus sardonicus. The intensity and sequence of muscle involvement is intervening cause later or between the time Javier was wounded to the time of his death.
quite variable. In a small proportion of patients, only local signs and symptoms develop in the The infection was, therefore, distinct and foreign to the crime. (People v. Rellin, 77 Phil.
region of the injury. In the vast majority, however, most muscles are involved to some 1038).
degree, and the signs and symptoms encountered depend upon the major muscle groups
affected. Doubts are present. There is a likelihood that the wound was but the remote cause and its
subsequent infection, for failure to take necessary precautions, with tetanus may have been
Reflex spasm usually occur within 24 to 72 hours of the first symptom, an interval referred to the proximate cause of Javier's death with which the petitioner had nothing to do. As we
as the onset time. As in the case of the incubation period, a short onset time is associated ruled in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).
with a poor prognosis. Spasms are caused by sudden intensification of afferent stimuli arising
in the periphery, which increases rigidity and causes simultaneous and excessive contraction "A prior and remote cause cannot be made the be of an action if such remote cause did
of muscles and their antagonists. Spasms may be both painful and dangerous. As the disease nothing more than furnish the condition or give rise to the occasion by which the injury was
progresses, minimal or inapparent stimuli produce more intense and longer lasting spasms made possible, if there intervened between such prior or remote cause and the injury a
with increasing frequency. Respiration may be impaired by laryngospasm or tonic contraction distinct, successive, unrelated, and efficient cause of the injury, even though such injury
of respiratory muscles which prevent adequate ventilation. Hypoxia may then lead to would not have happened but for such condition or occasion. If no danger existed in the
irreversible central nervous system damage and death. condition except because of the independent cause, such condition was not the proximate
cause. And if an independent negligent act or defective condition sets into operation the be proved beyond reasonable doubt. But for the purpose of indemnity the complaining
instances which result in injury because of the prior defective condition, such subsequent act party, why should the offense also be proved beyond reasonable doubt? Is not the invasion
or condition is the proximate cause." (45 C.J. pp. 931-932). (at p. 125) or violation of every private right to be proved only by a preponderance of evidence? Is the
right of the aggrieved person any less private because the wrongful act is also punishable by
It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the the criminal law?
very least, the records show he is guilty of inflicting slight physical injuries. However, the
petitioner's criminal liability in this respect was wiped out by the victim's own act. After the "For these reasons, the Commission recommends the adoption of the reform under
hacking incident, Urbano and Javier used the facilities of barangay mediators to effect a discussion. It will correct a serious defect in our law. It will close up an inexhaustible source
compromise agreement where Javier forgave Urbano while Urbano defrayed the medical of injustice-a cause for disillusionment on the part of the innumerable persons injured or
expenses of Javier. This settlement of minor offenses is allowed under the express provisions wronged."
of Presidential Decree G.R. No. 1508, Section 2(3). (See also People v. Caruncho, 127 SCRA
16). The respondent court increased the P12,000.00 indemnification imposed by the trial court to
P30,000.00. However, since the indemnification was based solely on the finding of guilt
We must stress, however, that our discussion of proximate cause and remote cause is limited beyond reasonable doubt in the homicide case, the civil liability of the petitioner was not
to the criminal aspects of this rather unusual case. It does not necessarily follow that the thoroughly examined. This aspect of the case calls for fuller development if the heirs of the
petitioner is also free of civil liability. The well-settled doctrine is that a person, while not victim are so minded.
criminally liable, may still be civilly liable. Thus, in the recent case of People v. Rogelio Ligon y
Tria, et al. (G.R. No. 74041, July 29, 1987), we said: WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then
Intermediate Appellate Court, now Court of Appeals, is REVERSED and SET ASIDE. The
xxx xxx xxx petitioner is ACQUITTED of the crime of homicide. Costs de oficio.

... While the guilt of the accused in a criminal prosecution must be established beyond SO ORDERED.
reasonable doubt, only a preponderance of evidence is required in a civil action for damages.
(Article 29, Civil Code). The judgment of acquittal extinguishes the civil liability of the accused Fernan, (Chairman), Feliciano, Bidin and,Cortes, JJ., concur.
only when it includes a declaration that the facts from which the civil liability might arise did
not exist. (Padilla v. Court of Appeals, 129 SCRA 559).
G.R. No. 162540 July 13, 2009
The reason for the provisions of article 29 of the Civil Code, which provides that the acquittal
of the accused on the ground that his guilt has not been proved beyond reasonable doubt GEMMA T. JACINTO, Petitioner - versus - PEOPLE OF THE PHILIPPINES, Respondent.
does not necessarily exempt him from civil liability for the same act or omission, has been
explained by the Code Commission as follows: PERALTA, J.:

The old rule that the acquittal of the accused in a criminal case also releases him from civil Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking
liability is one of the most serious flaws in the Philippine legal system. It has given use to the reversal of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 23761 dated
numberless instances of miscarriage of justice, where the acquittal was due to a reasonable December 16, 2003, affirming petitioner's conviction of the crime of Qualified Theft, and its
doubt in the mind of the court as to the guilt of the accused. The reasoning followed is that Resolution[2] dated March 5, 2004 denying petitioner's motion for reconsideration.
inasmuch as the civil responsibility is derived from the criminal offense, when the latter is not
proved, civil liability cannot be demanded. Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and
Jacqueline Capitle, was charged before the Regional Trial Court (RTC) of Caloocan City,
This is one of those causes where confused thinking leads to unfortunate and deplorable Branch 131, with the crime of Qualified Theft, allegedly committed as follows:
consequences. Such reasoning fails to draw a clear line of demarcation between criminal
liability and civil responsibility, and to determine the logical result of the distinction. The two That on or about and sometime in the month of July 1997, in Kalookan City, Metro Manila,
liabilities are separate and distinct from each other. One affects the social order and the and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
other, private rights. One is for the punishment or correction of the offender while the other together and mutually helping one another, being then all employees of MEGA FOAM
is for reparation of damages suffered by the aggrieved party. The two responsibilities are so INTERNATIONAL INC., herein represented by JOSEPH DYHENGCO Y CO, and as such had free
different from each other that article 1813 of the present (Spanish) Civil Code reads thus: access inside the aforesaid establishment, with grave abuse of trust and confidence reposed
"There may be a compromise upon the civil action arising from a crime; but the public action upon them with intent to gain and without the knowledge and consent of the owner thereof,
for the imposition of the legal penalty shall not thereby be extinguished." It is just and proper did then and there willfully, unlawfully and feloniously take, steal and deposited in their own
that, for the purposes of the imprisonment of or fine upon the accused, the offense should account, Banco De Oro Check No. 0132649 dated July 14, 1997 in the sum of P10,000.00,
representing payment made by customer Baby Aquino to the Mega Foam Int'l. Inc. to the inquire into the identity of the woman or her address. When he was informed by the bank
damage and prejudice of the latter in the aforesaid stated amount of P10,000.00. that the check bounced, he merely disregarded it as he didnt know where to find the woman
who rediscounted the check.
CONTRARY TO LAW.[3]
Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and
The prosecution's evidence, which both the RTC and the CA found to be more credible, worked out an entrapment operation with its agents. Ten pieces of P1,000.00 bills provided
reveals the events that transpired to be as follows. by Dyhengco were marked and dusted with fluorescent powder by the NBI. Thereafter, the
bills were given to Ricablanca, who was tasked to pretend that she was going along with
In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed Valencia's plan.
petitioner Banco De Oro (BDO) Check Number 0132649 postdated July 14, 1997 in the
amount of P10,000.00. The check was payment for Baby Aquino's purchases from Mega On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was
Foam Int'l., Inc., and petitioner was then the collector of Mega Foam. Somehow, the check then holding the bounced BDO check, handed over said check to Ricablanca. They originally
was deposited in the Land Bank account of Generoso Capitle, the husband of Jacqueline intended to proceed to Baby Aquino's place to have the check replaced with cash, but the
Capitle; the latter is the sister of petitioner and the former pricing, merchandising and plan did not push through. However, they agreed to meet again on August 21, 2007.
inventory clerk of Mega Foam.
On the agreed date, Ricablanca again went to petitioners house, where she met petitioner
Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call and Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to the house of Anita
sometime in the middle of July from one of their customers, Jennifer Sanalila. The customer Valencia; Jacqueline Capitle decided not to go with the group because she decided to go
wanted to know if she could issue checks payable to the account of Mega Foam, instead of shopping. It was only petitioner, her husband, Ricablanca and Valencia who then boarded
issuing the checks payable to CASH. Said customer had apparently been instructed by petitioner's jeep and went on to Baby Aquino's factory. Only Ricablanca alighted from the
Jacqueline Capitle to make check payments to Mega Foam payable to CASH. Around that jeep and entered the premises of Baby Aquino, pretending that she was getting cash from
time, Ricablanca also received a phone call from an employee of Land Bank, Valenzuela Baby Aquino. However, the cash she actually brought out from the premises was the
Branch, who was looking for Generoso Capitle. The reason for the call was to inform Capitle P10,000.00 marked money previously given to her by Dyhengco. Ricablanca divided the
that the subject BDO check deposited in his account had been dishonored. money and upon returning to the jeep, gave P5,000.00 each to Valencia and petitioner.
Thereafter, petitioner and Valencia were arrested by NBI agents, who had been watching the
Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, whole time.
asking the latter to inform Jacqueline Capitle about the phone call from Land Bank regarding
the bounced check. Ricablanca explained that she had to call and relay the message through Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found
Valencia, because the Capitles did not have a phone; but they could be reached through fluorescent powder on the palmar and dorsal aspects of both of their hands. This showed
Valencia, a neighbor and former co-employee of Jacqueline Capitle at Mega Foam. that petitioner and Valencia handled the marked money. The NBI filed a criminal case for
qualified theft against the two and one Jane Doe who was later identified as Jacqueline
Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Capitle, the wife of Generoso Capitle.
Ricablanca to ask Baby Aquino to replace the check with cash. Valencia also told Ricablanca
of a plan to take the cash and divide it equally into four: for herself, Ricablanca, petitioner The defense, on the other hand, denied having taken the subject check and presented the
Jacinto and Jacqueline Capitle. Ricablanca, upon the advise of Mega Foam's accountant, following scenario.
reported the matter to the owner of Mega Foam, Joseph Dyhengco.
Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30,
Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter 1997, but claimed that she had stopped collecting payments from Baby Aquino for quite
indeed handed petitioner a BDO check for P10,000.00 sometime in June 1997 as payment for some time before her resignation from the company. She further testified that, on the day of
her purchases from Mega Foam.[4] Baby Aquino further testified that, sometime in July the arrest, Ricablanca came to her mothers house, where she was staying at that time, and
1997, petitioner also called her on the phone to tell her that the BDO check bounced.[5] asked that she accompany her (Ricablanca) to Baby Aquino's house. Since petitioner was
Verification from company records showed that petitioner never remitted the subject check going for a pre-natal check-up at the Chinese General Hospital, Ricablanca decided to hitch a
to Mega Foam. However, Baby Aquino said that she had already paid Mega Foam P10,000.00 ride with the former and her husband in their jeep going to Baby Aquino's place in Caloocan
cash in August 1997 as replacement for the dishonored check.[6] City. She allegedly had no idea why Ricablanca asked them to wait in their jeep, which they
parked outside the house of Baby Aquino, and was very surprised when Ricablanca placed
Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO check the money on her lap and the NBI agents arrested them.
in his bank account, but explained that the check came into his possession when some
unknown woman arrived at his house around the first week of July 1997 to have the check Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on
rediscounted. He parted with his cash in exchange for the check without even bothering to June 30, 1997. It was never part of her job to collect payments from customers. According to
her, on the morning of August 21, 1997, Ricablanca called her up on the phone, asking if she
(Valencia) could accompany her (Ricablanca) to the house of Baby Aquino. Valencia claims The petition deserves considerable thought.
that she agreed to do so, despite her admission during cross-examination that she did not
know where Baby Aquino resided, as she had never been to said house. They then met at the The prosecution tried to establish the following pieces of evidence to constitute the elements
house of petitioner's mother, rode the jeep of petitioner and her husband, and proceeded to of the crime of qualified theft defined under Article 308, in relation to Article 310, both of the
Baby Aquino's place. When they arrived at said place, Ricablanca alighted, but requested Revised Penal Code: (1) the taking of personal property - as shown by the fact that petitioner,
them to wait for her in the jeep. After ten minutes, Ricablanca came out and, to her surprise, as collector for Mega Foam, did not remit the customer's check payment to her employer
Ricablanca gave her money and so she even asked, What is this? Then, the NBI agents and, instead, appropriated it for herself; (2) said property belonged to another − the check
arrested them. belonged to Baby Aquino, as it was her payment for purchases she made; (3) the taking was
done with intent to gain this is presumed from the act of unlawful taking and further shown
The trial of the three accused went its usual course and, on October 4, 1999, the RTC by the fact that the check was deposited to the bank account of petitioner's brother-in-law;
rendered its Decision, the dispositive portion of which reads: (4) it was done without the owners consent petitioner hid the fact that she had received the
check payment from her employer's customer by not remitting the check to the company; (5)
WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De Jacinto y it was accomplished without the use of violence or intimidation against persons, nor of force
Latosa, Anita Busog De Valencia y Rivera and Jacqueline Capitle GUILTY beyond reasonable upon things the check was voluntarily handed to petitioner by the customer, as she was
doubt of the crime of QUALIFIED THEFT and each of them is hereby sentenced to suffer known to be a collector for the company; and (6) it was done with grave abuse of confidence
imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND ELEVEN (11) DAYS, as minimum, to petitioner is admittedly entrusted with the collection of payments from customers.
SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS, as maximum.
However, as may be gleaned from the aforementioned Articles of the Revised Penal Code,
SO ORDERED.[7] the personal property subject of the theft must have some value, as the intention of the
accused is to gain from the thing stolen. This is further bolstered by Article 309, where the
The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the law provides that the penalty to be imposed on the accused is dependent on the value of the
dispositive portion of which reads, thus: thing stolen.

IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that: In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the
same was apparently without value, as it was subsequently dishonored. Thus, the question
(a) the sentence against accused Gemma Jacinto stands; arises on whether the crime of qualified theft was actually produced.

(b) the sentence against accused Anita Valencia is reduced to 4 months arresto mayor The Court must resolve the issue in the negative.
medium.
Intod v. Court of Appeals[9] is highly instructive and applicable to the present case. In Intod,
(c) The accused Jacqueline Capitle is acquitted. the accused, intending to kill a person, peppered the latters bedroom with bullets, but since
the intended victim was not home at the time, no harm came to him. The trial court and the
SO ORDERED. CA held Intod guilty of attempted murder. But upon review by this Court, he was adjudged
guilty only of an impossible crime as defined and penalized in paragraph 2, Article 4, in
A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for relation to Article 59, both of the Revised Penal Code, because of the factual impossibility of
petitioner Gemma Tubale Jacinto, but the same was denied per Resolution dated March 5, producing the crime. Pertinent portions of said provisions read as follows:
2004.
Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:
Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the
Decision and Resolution of the CA. The issues raised in the petition are as follows: xxxx
2. By any person performing an act which would be an offense against persons or
1. Whether or not petitioner can be convicted of a crime not charged in the information; property, were it not for the inherent impossibility of its accomplishment or on account of
the employment of inadequate to ineffectual means. (emphasis supplied)
2. Whether or not a worthless check can be the object of theft; and
Article 59. Penalty to be imposed in case of failure to commit the crime because the means
3. Whether or not the prosecution has proved petitioner's guilt beyond employed or the aims sought are impossible. - When the person intending to commit an
offense has already performed the acts for the execution of the same but nevertheless the
reasonable doubt.[8] crime was not produced by reason of the fact that the act intended was by its nature one of
impossible accomplishment or because the means employed by such person are essentially held in Valenzuela v. People[12] that under the definition of theft in Article 308 of the
inadequate to produce the result desired by him, the court, having in mind the social danger Revised Penal Code, there is only one operative act of execution by the actor involved in
and the degree of criminality shown by the offender, shall impose upon him the penalty of theft ─ the taking of personal property of another. Elucidating further, the Court held, thus:
arresto mayor or a fine ranging from 200 to 500 pesos.
x x x Parsing through the statutory definition of theft under Article 308, there is one apparent
Thus, the requisites of an impossible crime are: (1) that the act performed would be an answer provided in the language of the law that theft is already produced upon the tak[ing
offense against persons or property; (2) that the act was done with evil intent; and (3) that its of] personal property of another without the latters consent.
accomplishment was inherently impossible, or the means employed was either inadequate
or ineffectual. The aspect of the inherent impossibility of accomplishing the intended crime xxxx
under Article 4(2) of the Revised Penal Code was further explained by the Court in Intod[10] x x x when is the crime of theft produced? There would be all but certain unanimity in the
in this wise: 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
Under this article, the act performed by the offender cannot produce an offense against product of the felony that the offender, once having committed all the acts of execution for
persons or property because: (1) the commission of the offense is inherently impossible of theft, is able or unable to freely dispose of the property stolen since the deprivation from the
accomplishment; or (2) the means employed is either (a) inadequate or (b) ineffectual. owner alone has already ensued from such acts of execution. x x x

That the offense cannot be produced because the commission of the offense is inherently xxxx
impossible of accomplishment is the focus of this petition. To be impossible under this x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed complete
clause, the act intended by the offender must be by its nature one impossible of from the moment the offender gains possession of the thing, even if he has no opportunity
accomplishment. There must be either (1) legal impossibility, or (2) physical impossibility of to dispose of the same. x x x
accomplishing the intended act in order to qualify the act as an impossible crime.
x x x Unlawful taking, which is the deprivation of one’s personal property, is the element
Legal impossibility occurs where the intended acts, even if completed, would not amount to which produces the felony in its consummated stage. x x x [13]
a crime.
From the above discussion, there can be no question that as of the time that petitioner took
xxxx possession of the check meant for Mega Foam, she had performed all the acts to
The impossibility of killing a person already dead falls in this category. consummate the crime of theft, had it not been impossible of accomplishment in this case.
The circumstance of petitioner receiving the P5,000.00 cash as supposed replacement for the
On the other hand, factual impossibility occurs when extraneous circumstances unknown to dishonored check was no longer necessary for the consummation of the crime of qualified
the actor or beyond his control prevent the consummation of the intended crime. x x x [11] theft. Obviously, the plan to convince Baby Aquino to give cash as replacement for the check
was hatched only after the check had been dishonored by the drawee bank. Since the crime
In Intod, the Court went on to give an example of an offense that involved factual of theft is not a continuing offense, petitioner's act of receiving the cash replacement should
impossibility, i.e., a man puts his hand in the coat pocket of another with the intention to not be considered as a continuation of the theft. At most, the fact that petitioner was caught
steal the latter's wallet, but gets nothing since the pocket is empty. receiving the marked money was merely corroborating evidence to strengthen proof of her
intent to gain.
Herein petitioner's case is closely akin to the above example of factual impossibility given in
Intod. In this case, petitioner performed all the acts to consummate the crime of qualified Moreover, the fact that petitioner further planned to have the dishonored check replaced
theft, which is a crime against property. Petitioner's evil intent cannot be denied, as the mere with cash by its issuer is a different and separate fraudulent scheme. Unfortunately, since
act of unlawfully taking the check meant for Mega Foam showed her intent to gain or be said scheme was not included or covered by the allegations in the Information, the Court
unjustly enriched. Were it not for the fact that the check bounced, she would have received cannot pronounce judgment on the accused; otherwise, it would violate the due process
the face value thereof, which was not rightfully hers. Therefore, it was only due to the clause of the Constitution. If at all, that fraudulent scheme could have been another possible
extraneous circumstance of the check being unfunded, a fact unknown to petitioner at the source of criminal liability.
time, that prevented the crime from being produced. The thing unlawfully taken by
petitioner turned out to be absolutely worthless, because the check was eventually IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals,
dishonored, and Mega Foam had received the cash to replace the value of said dishonored dated December 16, 2003, and its Resolution dated March 5, 2004, are MODIFIED. Petitioner
check. Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE CRIME as defined and penalized in
Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Petitioner is
The fact that petitioner was later entrapped receiving the P5,000.00 marked money, which sentenced to suffer the penalty of six (6) months of arresto mayor, and to pay the costs.
she thought was the cash replacement for the dishonored check, is of no moment. The Court
SO ORDERED. Petitioner contends that, Palangpangan's absence from her room on the night he and his
companions riddled it with bullets made the crime inherently impossible.
G.R. No. 103119 October 21, 1992
On the other hand, Respondent People of the Philippines argues that the crime was not
SULPICIO INTOD, petitioner, impossible. Instead, the facts were sufficient to constitute an attempt and to convict Intod
vs. for attempted murder. Respondent alleged that there was intent. Further, in its Comment to
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. the Petition, respondent pointed out that:

CAMPOS, JR., J.: . . . The crime of murder was not consummated, not because of the inherent impossibility of
its accomplishment (Art. 4(2), Revised Penal Code), but due to a cause or accident other than
Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of Appeals petitioner's and his accused's own spontaneous desistance (Art. 3., Ibid.) Palangpangan did
1 affirming in toto the judgment of the Regional Trial Court, Branch XIV, Oroquieta City, not sleep at her house at that time. Had it not been for this fact, the crime is possible, not
finding him guilty of the crime of attempted murder. impossible.

From the records, we gathered the following facts. Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the
void in the Old Penal Code where:
In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino
Daligdig went to Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental . . . it was necessary that the execution of the act has been commenced, that the person
and asked him to go with them to the house of Bernardina Palangpangan. Thereafter, conceiving the idea should have set about doing the deed, employing appropriate means in
Mandaya and Intod, Pangasian, Tubio and Daligdig had a meeting with Aniceto Dumalagan. order that his intent might become a reality, and finally, that the result or end contemplated
He told Mandaya that he wanted Palangpangan to be killed because of a land dispute shall have been physically possible. So long as these conditions were not present, the law and
between them and that Mandaya should accompany the four (4) men, otherwise, he would the courts did not hold him criminally liable. 5
also be killed.
This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code,
At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio inspired by the Positivist School, recognizes in the offender his formidability, 7 and now
and Daligdig, all armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez penalizes an act which were it not aimed at something quite impossible or carried out with
Jaena, Misamis Occidental. At the instance of his companions, Mandaya pointed the location means which prove inadequate, would constitute a felony against person or against
of Palangpangan's bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at property. 8 The rationale of Article 4(2) is to punish such criminal tendencies. 9
said room. It turned out, however, that Palangpangan was in another City and her home was
then occupied by her son-in-law and his family. No one was in the room when the accused Under this article, the act performed by the offender cannot produce an offense against
fired the shots. No one was hit by the gun fire. person or property because: (1) the commission of the offense is inherently impossible of
accomplishment: or (2) the means employed is either (a) inadequate or (b) ineffectual. 10
Petitioner and his companions were positively identified by witnesses. One witness testified
that before the five men left the premises, they shouted: "We will kill you (the witness) and That the offense cannot be produced because the commission of the offense is inherently
especially Bernardina Palangpangan and we will come back if (sic) you were not injured". 2 impossible of accomplishment is the focus of this petition. To be impossible under this
clause, the act intended by the offender must be by its nature one impossible of
After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as accomplishment. 11 There must be either impossibility of accomplishing the intended act 12
affirmed by the Court of Appeals, holding that Petitioner was guilty of attempted murder. in order to qualify the act an impossible crime.
Petitioner seeks from this Court a modification of the judgment by holding him liable only for
an impossible crime, citing Article 4(2) of the Revised Penal Code which provides: Legal impossibility occurs where the intended acts, even if completed, would not amount to
a crime. 13 Thus:
Art. 4(2). CRIMINAL RESPONSIBILITY. — Criminal Responsibility shall be incurred:
xxx xxx xxx Legal impossibility would apply to those circumstances where (1) the motive, desire and
expectation is to perform an act in violation of the law; (2) there is intention to perform the
2. By any person performing an act which would be an offense against persons or physical act; (3) there is a performance of the intended physical act; and (4) the consequence
property, were it not for the inherent impossibility of its accomplishment or on account of resulting from the intended act does not amount to a crime. 14
the employment of inadequate or ineffectual means.
The impossibility of killing a person already dead 15 falls in this category.
On the other hand, factual impossibility occurs when extraneous circumstances unknown to In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room
the actor or beyond his control prevent the consummation of the intended crime. 16 One thinking that the latter was inside. However, at that moment, the victim was in another part
example is the man who puts his hand in the coat pocket of another with the intention to of the house. The court convicted the accused of attempted murder.
steal the latter's wallet and finds the pocket empty. 17
The aforecited cases are the same cases which have been relied upon by Respondent to
The case at bar belongs to this category. Petitioner shoots the place where he thought his make this Court sustain the judgment of attempted murder against Petitioner. However, we
victim would be, although in reality, the victim was not present in said place and thus, the cannot rely upon these decisions to resolve the issue at hand. There is a difference between
petitioner failed to accomplish his end. the Philippine and the American laws regarding the concept and appreciation of impossible
crimes.
One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18
the accused, with intent to kill, aimed and fired at the spot where he thought the police In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible
officer would be. It turned out, however, that the latter was in a different place. The accused crimes and made the punishable. Whereas, in the United States, the Code of Crimes and
failed to hit him and to achieve his intent. The Court convicted the accused of an attempt to Criminal Procedure is silent regarding this matter. What it provided for were attempts of the
kill. It held that: crimes enumerated in the said Code. Furthermore, in said jurisdiction, the impossibility of
committing the offense is merely a defense to an attempt charge. In this regard,
The fact that the officer was not at the spot where the attacking party imagined where he commentators and the cases generally divide the impossibility defense into two categories:
was, and where the bullet pierced the roof, renders it no less an attempt to kill. It is well legal versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court held that:
settled principle of criminal law in this country that where the criminal result of an attempt is
not accomplished simply because of an obstruction in the way of the thing to be operated . . . factual impossibility of the commission of the crime is not a defense. If the crime could
upon, and these facts are unknown to the aggressor at the time, the criminal attempt is have been committed had the circumstances been as the defendant believed them to be, it is
committed. no defense that in reality the crime was impossible of commission.

In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal
the victim because the latter did not pass by the place where he was lying-in wait, the court liability for an attempt. In U.S. vs. Berrigan, 24 the accused was indicated for attempting to
held him liable for attempted murder. The court explained that: smuggle letters into and out of prison. The law governing the matter made the act criminal if
done without knowledge and consent of the warden. In this case, the offender intended to
It was no fault of Strokes that the crime was not committed. . . . It only became impossible by send a letter without the latter's knowledge and consent and the act was performed.
reason of the extraneous circumstance that Lane did not go that way; and further, that he However, unknown to him, the transmittal was achieved with the warden's knowledge and
was arrested and prevented from committing the murder. This rule of the law has application consent. The lower court held the accused liable for attempt but the appellate court
only where it is inherently impossible to commit the crime. It has no application to a case reversed. It held unacceptable the contention of the state that "elimination of impossibility
where it becomes impossible for the crime to be committed, either by outside interference as a defense to a charge of criminal attempt, as suggested by the Model Penal Code and the
or because of miscalculation as to a supposed opportunity to commit the crime which fails to proposed federal legislation, is consistent with the overwhelming modern view". In disposing
materialize; in short it has no application to the case when the impossibility grows out of of this contention, the Court held that the federal statutes did not contain such provision,
extraneous acts not within the control of the party. and thus, following the principle of legality, no person could be criminally liable for an act
which was not made criminal by law. Further, it said:
In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even
if there was nothing to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to Congress has not yet enacted a law that provides that intent plus act plus conduct
wit: constitutes the offense of attempt irrespective of legal impossibility until such time as such
legislative changes in the law take place, this court will not fashion a new non-statutory law
It being an accepted truth that defendant deserves punishment by reason of his criminal of criminal attempt.
intent, no one can seriously doubt that the protection of the public requires the punishment
to be administered, equally whether in the unseen depths of the pocket, etc., what was To restate, in the United States, where the offense sought to be committed is factually
supposed to exist was really present or not. The community suffers from the mere alarm of impossible or accomplishment, the offender cannot escape criminal liability. He can be
crime. Again: Where the thing intended (attempted) as a crime and what is done is a sort to convicted of an attempt to commit the substantive crime where the elements of attempt are
create alarm, in other words, excite apprehension that the evil; intention will be carried out, satisfied. It appears, therefore, that the act is penalized, not as an impossible crime, but as an
the incipient act which the law of attempt takes cognizance of is in reason committed. attempt to commit a crime. On the other hand, where the offense is legally impossible of
accomplishment, the actor cannot be held liable for any crime — neither for an attempt not
for an impossible crime. The only reason for this is that in American law, there is no such
thing as an impossible crime. Instead, it only recognizes impossibility as a defense to a crime
charge — that is, attempt.

This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The
impossibility of accomplishing the criminal intent is not merely a defense, but an act
penalized by itself. Furthermore, the phrase "inherent impossibility" that is found in Article
4(2) of the Revised Penal Code makes no distinction between factual or physical impossibility
and legal impossibility. Ubi lex non distinguit nec nos distinguere debemos.

The factual situation in the case at bar present a physical impossibility which rendered the
intended crime impossible of accomplishment. And under Article 4, paragraph 2 of the
Revised Penal Code, such is sufficient to make the act an impossible crime.

To uphold the contention of respondent that the offense was Attempted Murder because
the absence of Palangpangan was a supervening cause independent of the actor's will, will
render useless the provision in Article 4, which makes a person criminally liable for an act
"which would be an offense against persons or property, were it not for the inherent
impossibility of its accomplishment . . ." In that case all circumstances which prevented the
consummation of the offense will be treated as an accident independent of the actor's will
which is an element of attempted and frustrated felonies.

WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of

respondent Court of Appeals holding Petitioner guilty of Attempted Murder is hereby
MODIFIED. We hereby hold Petitioner guilty of an impossible crime as defined and penalized
in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Having in mind the
social danger and degree of criminality shown by Petitioner, this Court sentences him to
suffer the penalty of six (6) months of arresto mayor, together with the accessory penalties
provided by the law, and to pay the costs.

SO ORDERED.