G.R. No.

L-12155 February 2, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
PROTASIO EDUAVE, defendant-appellant.

Manuel Roxas for appellant.

Attorney-General Avanceña for appellee.

MORELAND, J.:

We believe that the accused is guilty of frustrated murder.

We are satisfied that there was an intent to kill in this case. A deadly weapon was used. The blow
was directed toward a vital part of the body. The aggressor stated his purpose to kill, thought he had
killed, and threw the body into the bushes. When he gave himself up he declared that he had killed
the complainant.

There was alevosia to qualify the crime as murder if death had resulted. The accused rushed upon
the girl suddenly and struck her from behind, in part at least, with a sharp bolo, producing a frightful
gash in the lumbar region and slightly to the side eight and one-half inches long and two inches
deep, severing all of the muscles and tissues of that part.

The motive of the crime was that the accused was incensed at the girl for the reason that she had
theretofore charged him criminally before the local officials with having raped her and with being the
cause of her pregnancy. He was her mother's querido and was living with her as such at the time the
crime here charged was committed.

That the accused is guilty of some crime is not denied. The only question is the precise crime of
which he should be convicted. It is contended, in the first place, that, if death has resulted, the crime
would not have been murder but homicide, and in the second place, that it is attempted and not
frustrated homicide.

As to the first contention, we are of the opinion that the crime committed would have been murder if
the girl had been killed. It is qualified by the circumstance of alevosia, the accused making a sudden
attack upon his victim from the rear, or partly from the rear, and dealing her a terrible blow in the
back and side with his bolo. Such an attack necessitates the finding that it was made treacherously;
and that being so the crime would have been qualified as murder if death had resulted.

As to the second contention, we are of the opinion that the crime was frustrated and not attempted
murder. Article 3 of the Penal Code defines a frustrated felony as follows:

A felony is frustrated when the offender performs all the acts of execution which should
produce the felony as a consequence, but which, nevertheless, do not produce it by reason
of causes independent of the will of the perpetrator.

An attempted felony is defined thus:

There is an attempt when the offender commences the commission of the felony directly by
overt acts, and does not perform all the acts of execution which constitute the felony by
reason of some cause or accident other than his own voluntarily desistance.
The crime cannot be attempted murder. This is clear from the fact that the defendant
performed all of the acts which should have resulted in the consummated crime
and voluntarily desisted from further acts. A crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by
some outside cause from performing all of the acts which should produce the crime. In other words,
to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency
which intervenes and compels him to stop prior to the moment when he has performed all of the acts
which should produce the crime as a consequence, which acts it is his intention to perform. If he has
performed all of the acts which should result in the consummation of the crime
and voluntarily desists from proceeding further, it can not be an attempt. The essential element
which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a
foreign or extraneous cause or agency between the beginning of the commission of the crime and
the moment when all of the acts have been performed which should result in the consummated
crime; while in the former there is such intervention and the offender does not arrive at the point of
performing all of the acts which should produce the crime. He is stopped short of that point by some
cause apart from his voluntary desistance.

To put it in another way, in case of an attempt the offender never passes the subjective phase of the
offense. He is interrupted and compelled to desist by the intervention of outside causes before the
subjective phase is passed.

On the other hand, in case of frustrated crimes the subjective phase is completely passed.
Subjectively the crime is complete. Nothing interrupted the offender while he was passing through
the subjective phase. The crime, however, is not consummated by reason of the intervention of
causes independent of the will of the offender. He did all that was necessary to commit the crime. If
the crime did not result as a consequence it was due to something beyond his control.

The subjective phase is that portion of the acts constituting the crime included between the act
which begins the commission of the crime and the last act performed by the offender which, with the
prior acts, should result in the consummated crime. From that time forward the phase is objective. It
may also be said to be that period occupied by the acts of the offender over which he has control —
that period between the point where he begins and the points where he voluntarily desists.
If between these two points the offender is stopped by reason of any cause outside of his own
voluntary desistance, the subjective phase has not been passed and it is an attempt. If he is not so
stopped but continues until he performs the last act, it is frustrated.

That the case before us is frustrated is clear.

The penalty should have been thirteen years of cadena temporal there being neither aggravating nor
mitigating circumstance. As so modified, the judgment is affirmed with costs. So ordered.

G.R. No. 166326 January 25, 2006

ESMERALDO RIVERA, ISMAEL RIVERA, EDGARDO RIVERA, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CALLEJO, SR., J.:

This is a petition for review of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 27215
affirming, with modification, the Decision2 of the Regional Trial Court (RTC) of Cavite, Branch 90, in
Criminal Case No. 6962-99, entitled People of the Philippines. v. Esmeraldo Rivera, et al.

On April 12, 1999, an Information was filed in the RTC of Imus, Cavite, charging Esmeraldo, Ismael
and Edgardo, all surnamed Rivera, of attempted murder. The accusatory portion of the Information
reads:

That on or about the 3rd day of May 1998, in the Municipality of Dasmariñas, Province of Cavite,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping one another, with intent to kill, with treachery and
evident premeditation, did then and there, wilfully, unlawfully, and feloniously attack, assault and hit
with a piece of hollow block, one RUBEN RODIL who thereby sustained a non-mortal injury on his
head and on the different parts of his body, the accused thus commenced the commission of the
felony directly by overt acts, but failed to perform all the acts of execution which would produce the
crime of Murder by reason of some causes other than their own spontaneous desistance, that is, the
said Ruben Rodil was able to ran (sic) away and the timely response of the policemen, to his
damage and prejudice.

CONTRARY TO LAW.3

Ruben Rodil testified that he used to work as a taxi driver. He stopped driving in April 1998 after a
would-be rapist threatened his life. He was even given a citation as a Bayaning Pilipino by the
television network ABS-CBN for saving the would-be victim. His wife eked out a living as a
manicurist. They and their three children resided in Barangay San Isidro Labrador II, Dasmariñas,
Cavite, near the house of Esmeraldo Rivera and his brothers Ismael and Edgardo.

At noon of May 2, 1998, Ruben went to a nearby store to buy food. Edgardo mocked him for being
jobless and dependent on his wife for support. Ruben resented the rebuke and hurled invectives at
Edgardo. A heated exchange of words ensued.

At about 7:30 p.m. the next day, a Sunday, Ruben went to the store to buy food and to look for his
wife. His three-year-old daughter was with him. Momentarily, Esmeraldo and his two brothers,
Ismael and Edgardo, emerged from their house and ganged up on Ruben. Esmeraldo and Ismael
mauled Ruben with fist blows and he fell to the ground. In that helpless position, Edgardo hit Ruben
three times with a hollow block on the parietal area. Esmeraldo and Ismael continued mauling
Ruben. People who saw the incident shouted: "Awatin sila! Awatin sila!" Ruben felt dizzy but
managed to stand up. Ismael threw a stone at him, hitting him at the back. When policemen on
board a mobile car arrived, Esmeraldo, Ismael and Edgardo fled to their house.

Ruben was brought to the hospital. His attending physician, Dr. Lamberto Cagingin, Jr., signed a
medical certificate in which he declared that Ruben sustained lacerated wounds on the parietal area,
cerebral concussion or contusion, hematoma on the left upper buttocks, multiple abrasions on the
left shoulder and hematoma periorbital left.4 The doctor declared that the lacerated wound in the
parietal area was slight and superficial and would heal from one to seven days. 5 The doctor
prescribed medicine for Ruben’s back pain, which he had to take for one month.6

Esmeraldo testified that at around 1:00 p.m. on May 3, 1998, Ruben arrived at his house and
banged the gate. Ruben challenged him and his brothers to come out and fight. When he went out of
the house and talked to Ruben, the latter punched him. They wrestled with each other. He fell to the
ground. Edgardo arrived and pushed Ruben aside. His wife arrived, and he was pulled away and
brought to their house.
For his part, Ismael testified that he tried to pacify Ruben and his brother Esmeraldo, but Ruben
grabbed him by the hair. He managed to free himself from Ruben and the latter fled. He went home
afterwards. He did not see his brother Edgardo at the scene.

Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was throwing garbage in front of their
house. Ruben arrived and he went inside the house to avoid a confrontation. Ruben banged the gate
and ordered him to get out of their house and even threatened to shoot him. His brother Esmeraldo
went out of their house and asked Ruben what the problem was. A fist fight ensued. Edgardo rushed
out of the house and pushed Ruben aside. Ruben fell to the ground. When he stood up, he pulled at
Edgardo’s shirt and hair, and, in the process, Ruben’s head hit the lamp post. 7

On August 30, 2002, the trial court rendered judgment finding all the accused guilty beyond
reasonable doubt of frustrated murder. The dispositive portion of the decision reads:

WHEREFORE, premises considered, all the accused are found GUILTY beyond reasonable doubt
and are sentenced to an imprisonment of six (6) years and one (1) day to eight (8) years of prision
mayor as the prosecution has proved beyond reasonable doubt the culpability of the accused.
Likewise, the accused are to pay, jointly and severally, civil indemnity to the private complainant in
the amount of P30,000.00.

SO ORDERED.8

The trial court gave no credence to the collective testimonies of the accused and their witnesses.
The accused appealed to the CA, which rendered judgment on June 8, 2004 affirming, with
modification, the appealed decision. The dispositive portion of the CA decision reads:

WHEREFORE, the Decision of the Regional Trial Court of Imus, Cavite, Branch 90, is MODIFIED in
that the appellants are convicted of ATTEMPTED MURDER and sentenced to an indeterminate
penalty of 2 years of prision correccional as minimum to 6 years and 1 day of prision mayor as
maximum. In all other respects, the decision appealed from is AFFIRMED.

SO ORDERED.9

The accused, now petitioners, filed the instant petition for review on certiorari, alleging that the CA
erred in affirming the RTC decision. They insist that the prosecution failed to prove that they had the
intention to kill Ruben when they mauled and hit him with a hollow block. Petitioners aver that, based
on the testimony of Dr. Cagingin, Ruben sustained only a superficial wound in the parietal area;
hence, they should be held criminally liable for physical injuries only. Even if petitioners had the
intent to kill Ruben, the prosecution failed to prove treachery; hence, they should be held guilty only
of attempted homicide.

On the other hand, the CA held that the prosecution was able to prove petitioners’ intent to kill
Ruben:

On the first assigned error, intent to kill may be deduced from the nature of the wound inflicted and
the kind of weapon used. Intent to kill was established by victim Ruben Rodil in his testimony as
follows:

Q: And while you were being boxed by Esmeraldo and Bong, what happened next?
A: When I was already lying [down] xxx, Dagol Rivera showed up with a piece of hollow block xxx
and hit me thrice on the head, Sir.

Q: And what about the two (2), what were they doing when you were hit with a hollow block by
Dagol?

A: I was already lying on the ground and they kept on boxing me while Dagol was hitting, Sir.

As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow block directly
hit his head, and had the police not promptly intervened so that the brothers scampered away. When
a wound is not sufficient to cause death, but intent to kill is evident, the crime is attempted. Intent to
kill was shown by the fact that the (3) brothers helped each other maul the defenseless victim, and
even after he had already fallen to the ground; that one of them even picked up a cement hollow
block and proceeded to hit the victim on the head with it three times; and that it was only the arrival
of the policemen that made the appellants desist from their concerted act of trying to kill Ruben
Rodil.10

The Office of the Solicitor General (OSG), for its part, asserts that the decision of the CA is correct,
thus:

The evidence and testimonies of the prosecution witnesses defeat the presumption of innocence
raised by petitioners. The crime has been clearly established with petitioners as the perpetrators.
Their intent to kill is very evident and was established beyond reasonable doubt.

Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly and categorically declared that
the victim Ruben Rodil was walking along St. Peter Avenue when he was suddenly boxed by
Esmeraldo "Baby" Rivera. They further narrated that, soon thereafter, his two brothers Ismael and
Edgardo "Dagul" Rivera, coming from St. Peter II, ganged up on the victim. Both Alicia Vera Cruz
and Lucita Villejo recounted that they saw Edgardo "Dagul" Rivera pick up a hollow block and hit
Ruben Rodil with it three (3) times. A careful review of their testimonies revealed the suddenness
and unexpectedness of the attack of petitioners. In this case, the victim did not even have the
slightest warning of the danger that lay ahead as he was carrying his three-year old daughter. He
was caught off-guard by the assault of Esmeraldo "Baby" Rivera and the simultaneous attack of the
two other petitioners. It was also established that the victim was hit by Edgardo "Dagul" Rivera, while
he was lying on the ground and being mauled by the other petitioners. Petitioners could have killed
the victim had he not managed to escape and had the police not promptly intervened.

Petitioners also draw attention to the fact that the injury sustained by the victim was superficial and,
thus, not life threatening. The nature of the injury does not negate the intent to kill. The Court of
Appeals held:

As earlier stated by Dr. Cagingin, appellants could have killed the victim had the hollow block directly
hit his head, and had the police not promptly intervened so that the brothers scampered away. When
a wound is not sufficient to cause death, but intent to kill is evident, the crime is attempted. Intent to
kill was shown by the fact that the three (3) brothers helped each other maul the defenseless victim,
and even after he had already fallen to the ground; that one of them picked up a cement hollow
block and proceeded to hit the victim on the head with it three times; and that it was only the arrival
of the policemen that made the appellants desist from their concerted act of trying to kill Ruben
Rodil.11

The petition is denied for lack of merit.

An essential element of murder and homicide, whether in their consummated, frustrated or
attempted stage, is intent of the offenders to kill the victim immediately before or simultaneously with
the infliction of injuries. Intent to kill is a specific intent which the prosecution must prove by direct or
circumstantial evidence, while general criminal intent is presumed from the commission of a felony
by dolo.

In People v. Delim,12 the Court declared that evidence to prove intent to kill in crimes against persons
may consist, inter alia, in the means used by the malefactors, the nature, location and number of
wounds sustained by the victim, the conduct of the malefactors before, at the time, or immediately
after the killing of the victim, the circumstances under which the crime was committed and the
motives of the accused. If the victim dies as a result of a deliberate act of the malefactors, intent to
kill is presumed.

In the present case, the prosecution mustered the requisite quantum of evidence to prove the intent
of petitioners to kill Ruben. Esmeraldo and Ismael pummeled the victim with fist blows. Even as
Ruben fell to the ground, unable to defend himself against the sudden and sustained assault of
petitioners, Edgardo hit him three times with a hollow block. Edgardo tried to hit Ruben on the head,
missed, but still managed to hit the victim only in the parietal area, resulting in a lacerated wound
and cerebral contusions.

That the head wounds sustained by the victim were merely superficial and could not have produced
his death does not negate petitioners’ criminal liability for attempted murder. Even if Edgardo did not
hit the victim squarely on the head, petitioners are still criminally liable for attempted murder.

The last paragraph of Article 6 of the Revised Penal Code defines an attempt to commit a felony,
thus:

There is an attempt when the offender commences the commission of a felony directly by overt acts,
and does not perform all the acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance.

The essential elements of an attempted felony are as follows:

1. The offender commences the commission of the felony directly by overt acts;

2. He does not perform all the acts of execution which should produce the felony;

3. The offender’s act be not stopped by his own spontaneous desistance;

4. The non-performance of all acts of execution was due to cause or accident other than his
spontaneous desistance.13

The first requisite of an attempted felony consists of two elements, namely:

(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended to be committed. 14

The Court in People v. Lizada15 elaborated on the concept of an overt or external act, thus:
An overt or external act is defined as some physical activity or deed, indicating the intention to
commit a particular crime, more than a mere planning or preparation, which if carried out to its
complete termination following its natural course, without being frustrated by external obstacles nor
by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense. The raison d’etre for the law requiring a direct overt act is that, in a majority of cases, the
conduct of the accused consisting merely of acts of preparation has never ceased to be equivocal;
and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that
must be lacking before the act becomes one which may be said to be a commencement of the
commission of the crime, or an overt act or before any fragment of the crime itself has been
committed, and this is so for the reason that so long as the equivocal quality remains, no one can
say with certainty what the intent of the accused is. It is necessary that the overt act should have
been the ultimate step towards the consummation of the design. It is sufficient if it was the "first or
some subsequent step in a direct movement towards the commission of the offense after the
preparations are made." The act done need not constitute the last proximate one for completion. It is
necessary, however, that the attempt must have a causal relation to the intended crime. In the words
of Viada, the overt acts must have an immediate and necessary relation to the offense. 16

In the case at bar, petitioners, who acted in concert, commenced the felony of murder by mauling
the victim and hitting him three times with a hollow block; they narrowly missed hitting the middle
portion of his head. If Edgardo had done so, Ruben would surely have died.

We reject petitioners’ contention that the prosecution failed to prove treachery in the commission of
the felony. Petitioners attacked the victim in a sudden and unexpected manner as Ruben was
walking with his three-year-old daughter, impervious of the imminent peril to his life. He had no
chance to defend himself and retaliate. He was overwhelmed by the synchronized assault of the
three siblings. The essence of treachery is the sudden and unexpected attack on the victim. 17 Even if
the attack is frontal but is sudden and unexpected, giving no opportunity for the victim to repel it or
defend himself, there would be treachery.18 Obviously, petitioners assaulted the victim because of
the altercation between him and petitioner Edgardo Rivera a day before. There being conspiracy by
and among petitioners, treachery is considered against all of them.19

The appellate court sentenced petitioners to suffer an indeterminate penalty of two (2) years
of prision correccionalin its minimum period, as minimum, to six years and one day of prision
mayor in its maximum period, as maximum. This is erroneous. Under Article 248 of the Revised
Penal Code, as amended by Republic Act No. 7659, the penalty for murder is reclusion perpetua to
death. Since petitioners are guilty only of attempted murder, the penalty should be reduced by two
degrees, conformably to Article 51 of the Revised Penal Code. Under paragraph 2 of Article 61, in
relation to Article 71 of the Revised Penal Code, such a penalty is prision mayor. In the absence of
any modifying circumstance in the commission of the felony (other than the qualifying circumstance
of treachery), the maximum of the indeterminate penalty shall be taken from the medium period
of prision mayor which has a range of from eight (8) years and one (1) day to ten (10) years. To
determine the minimum of the indeterminate penalty, the penalty of prision mayor should be reduced
by one degree, prision correccional, which has a range of six (6) months and one (1) day to six (6)
years.

Hence, petitioners should be sentenced to suffer an indeterminate penalty of from two (2) years
of prision correccional in its minimum period, as minimum, to nine (9) years and four (4) months
of prision mayor in its medium period, as maximum.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The Decision of the
Court of Appeals is AFFIRMED WITH THE MODIFICATION that petitioners are sentenced to suffer
an indeterminate penalty of from two (2) years of prision correccional in its minimum period, as
minimum, to nine (9) years and four (4) months of prision mayor in its medium period, as maximum.
No costs.

SO ORDERED.

G.R. No. 138033 February 22, 2006

RENATO BALEROS, JR., Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

GARCIA, J.:

In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the reversal
of the January 13, 1999 decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 17271 as
reiterated in its March 31, 1999 resolution2 denying petitioner’s motion for reconsideration.

The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of Manila,
Branch 2, in Criminal Case No. 91-101642 finding petitioner Renato Baleros, Jr. y David (CHITO)
guilty of attempted rape.3

The accusatory portion of the information4 dated December 17, 1991 charging petitioner with
attempted rape reads as follow:

That about 1:50 in the morning or sometime thereafter of 13 December 1991 in Manila and within
the jurisdiction of this Honorable Court, the above-named accused, by forcefully covering the face of
Martina Lourdes T. Albano with a piece of cloth soaked in chemical with dizzying effects, did then
and there willfully, unlawfully and feloniously commenced the commission of rape by lying on top of
her with the intention to have carnal knowledge with her but was unable to perform all the acts of
execution by reason of some cause or accident other than his own spontaneous desistance, said
acts being committed against her will and consent to her damage and prejudice.

Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not

Guilty."5 Thereafter, trial on the merits ensued.

To prove its case, the prosecution presented thirteen (13) witnesses. Among them were private
complainant Martina Lourdes Albano (Malou), and her classmates, Joseph Bernard Africa, Rommel
Montes, Renato Alagadan and Christian Alcala. Their testimonies, as narrated in some detail in the
decision of the CA, established the following facts:

Like most of the tenants of the Celestial Marie Building (hereafter "Building", …) along A.H. Lacson
Street, Sampaloc, Manila, MALOU, occupying Room 307 with her maid, Marvilou Bebania
(Marvilou), was a medical student of the University of Sto. Tomas [UST] in 1991.

In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in
front of her bedroom door, her maid, Marvilou, slept on a folding bed.

Early morning of the following day, MALOU was awakened by the smell of chemical on a piece of
cloth pressed on her face. She struggled but could not move. Somebody was pinning her down on
the bed, holding her tightly. She wanted to scream for help but the hands covering her mouth with
cloth wet with chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU continued fighting
off her attacker by kicking him until at last her right hand got free. With this …the opportunity
presented itself when she was able to grab hold of his sex organ which she then squeezed.

The man let her go and MALOU went straight to the bedroom door and roused Marvilou. xxx. Over
the intercom, MALOU told S/G Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako" (Ibid.,
p. 8). Who it was she did not, however, know. The only thing she had made out during their struggle
was the feel of her attacker’s clothes and weight. His upper garment was of cotton material while
that at the lower portion felt smooth and satin-like (Ibid, p. 17). He … was wearing a t-shirt and
shorts … Original Records, p. 355).

To Room 310 of the Building where her classmates Christian Alcala, Bernard Baptista, Lutgardo
Acosta and Rommel Montes were staying, MALOU then proceeded to seek help. xxx.

It was then when MALOU saw her bed … topsy-turvy. Her nightdress was stained with blue … (TSN,
July 5, 1993, pp. 13-14). Aside from the window with grills which she had originally left opened,
another window inside her bedroom was now open. Her attacker had fled from her room going
through the left bedroom window (Ibid, Answers to Question number 5; Id), the one without iron grills
which leads to Room 306 of the Building (TSN, July 5, 1993, p.6).

xxx xxx xxx

Further, MALOU testified that her relation with CHITO, who was her classmate …, was friendly until
a week prior to the attack. CHITO confided his feelings for her, telling her: "Gusto kita, mahal kita"
(TSN, July 5, 1993, p. 22) and she rejected him. …. (TSN, July 5, 1993, p. 22).

Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the Building at 1:30 in
the early morning of December 13, 1991, wearing a white t-shirt with “‘…a marking on the front of
the T-shirt T M and a Greek letter (sic) ΣΦ’ and below the quoted letters the word ‘1946’ ‘UST
Medicine and Surgery’” (TSN, October 9, 1992, p. 9) and black shorts with the brand name “Adidas”
(TSN, October 16, 1992, p.7) and requested permission to go up to Room 306. This Unit was being
leased by Ansbert Co and at that time when CHITO was asking permission to enter, only Joseph
Bernard Africa was in the room.

He asked CHITO to produce the required written authorization and when CHITO could not, S/G
Ferolin initially refused [but later, relented] …. S/G Ferolin made the following entry in the security
guard’s logbook …:

"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic) a Request letter from
our tenant of Unit #-306 Ansbert, but still I let him inter (sic) for the reason that he will be our tenant
this coming summer break as he said so I let him sign it here

(Sgd.) Baleros Renato Jr."

(Exhibit "A-2")

That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was corroborated by Joseph
Bernard Africa (Joseph), ….

xxx xxx xxx

Joseph was already inside Room 306 at 9 o’clock in the evening of December 12, 1991. xxx by the
time CHITO’s knocking on the door woke him up, …. He was able to fix the time of CHITO’s arrival
at 1:30 A.M. because he glanced at the alarm clock beside the bed when he was awakened by the
knock at the door ….

Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt (Ibid., p. 23) when he
let the latter in. …. It was at around 3 o’clock in the morning of December 13, 1991 when he woke up
again later to the sound of knocking at the door, this time, by Bernard Baptista (Bernard), ….

xxx. With Bernard, Joseph then went to MALOU’s room and thereat was shown by Bernard the open
window through which the intruder supposedly passed.

xxx xxx xxx

Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able to talk to
CHITO …. He mentioned to the latter that something had happened and that they were not being
allowed to get out of the building. Joseph also told CHITO to follow him to Room 310.

CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. xxx. None was in
Room 310 so Joseph went to their yet another classmate, Renato Alagadan at Room 401 to see if
the others were there. xxx.

People from the CIS came by before 8 o’clock that same morning …. They likewise invited CHITO
and Joseph to go with them to Camp Crame where the two (2) were questioned ….

An occupant of Room 310 … Christian Alcala (Christian) recalled in Court that in the afternoon of
December 13, 1991, after their 3:30 class, he and his roommates, Bernard Baptista and Lutgardo
Acosta (Gary) were called to the Building and were asked by the CIS people to look for anything not
belonging to them in their Unit. While they were outside Room 310 talking with the authorities,
Rommel Montes (Loyloy), another roommate of his, went inside to search the Unit. Loyloy found
(TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their
unit which they did not know was there and surrender the same to the investigators. When he saw
the gray bag, Christian knew right away that it belonged to CHITO (Ibid, p. 55) as he had seen the
latter usually bringing it to school inside the classroom (Ibid, p. 45).

In their presence, the CIS opened the bag and pulled out its contents, among others, a white t-shirt
with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black Adidas short pants, a handkerchief , three (3)
white T-shirts, an underwear, and socks (Ibid).

Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-5"), and the
handkerchief (Exhibit "D-3) to be CHITO’s because CHITO had lent the very same one to him ….
The t-shirt with CHITO’s fraternity symbol, CHITO used to wear on weekends, and the handkerchief
he saw CHITO used at least once in December.

That CHITO left his bag inside Room 310 in the morning of December 13, 1991, was what consisted
mainly of Renato R. Alagadan’s testimony.

xxx xxx xxx.

The colored gray bag had a handle and a strap, was elongated to about 11/4 feet and appeared to
be full but was closed with a zipper when Renato saw it then (Ibid, pp. 19-20). At that time Christian,
Gary, Bernard, and Renato went back to Room 310 at around 3 to 4 o’clock that afternoon along
with some CIS agents, they saw the bag at the same place inside the bedroom where Renato had
seen CHITO leave it. Not until later that night at past 9 o’clock in Camp Crame, however, did Renato
know what the contents of the bag were.

xxx xxx xxx.

The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime Laboratory in Camp
Crame, having acted in response to the written request of PNP Superintendent Lucas M.
Managuelod dated December 13, 1991, (Exhibit "C"; Original Records, p. 109.) conducted laboratory
examination on the specimen collated and submitted…. Her Chemistry Report No. C-487-91 (Exhibit
"E"; Ibid., p. 112) reads in part, thus:

"SPECIMEN SUBMITTED:

xxx xxx xxx:

1) One (1) small white plastic bag marked ‘UNIMART’ with the following:

xxx xxx xxx

Exh ‘C’ – One (1) night dress colored salmon pink.

2) One (1) small white pl astic bag marked ‘JONAS’ with the following:

Exh. ‘D’ – One (1) printed handkerchief.

Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.

Exh. ‘F’ – One (1) black short (sic) marked ‘ADIDAS’.

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of volatime (sic), non-volatile and/or metallic poison on the above stated
specimens.

FINDINGS:

Toxicological examination conducted on the above stated specimens gave the following results:

Exhs. ‘C’ and ‘D’ – POSITIVE to the test for chloroform, a volatile poison.

Exhs. ‘A’, ‘B’, ‘E’ and ‘F’ are insufficient for further analysis.

CONCLUSION:

Exhs. ‘C’ and ‘D’ contain chloroform, a volatile poison." 6 (Words in bracket added)

For its part, the defense presented, as its main witness, the petitioner himself. He denied committing
the crime imputed to him or making at any time amorous advances on Malou. Unfolding a different
version of the incident, the defense sought to establish the following, as culled from the same
decision of the appellate court:

In December of 1991, CHITO was a medical student of … (UST). With Robert Chan and Alberto
Leonardo, he was likewise a member of the Tau Sigma Phi Fraternity …. MALOU, …, was known to
him being also a medical student at the UST at the time.

From Room 306 of the Celestial Marie Building …, CHITO, wearing the prescribed barong tagalog
over dark pants and leather shoes, arrived at their Fraternity house located at … Dos Castillas,
Sampaloc, Manila at about 7 o’clock in the evening of December 12, 1991. He was included in the
entourage of some fifty (50) fraternity members scheduled for a Christmas gathering at the house of
their senior fraternity brother, Dr. Jose Duran, at No. 3 John Street, North Greenhills, San Juan. xxx.

The party was conducted at the garden beside [the] swimming pool …. Soon after, … the four (4)
presidential nominees of the Fraternity, CHITO included, were being dunked one by one into the
pool. xxx.

xxx CHITO had anticipated his turn … and was thus wearing his t-shirt and long pants when he was
dunked. Perla Duran, …, offered each … dry clothes to change into and CHITO put on the white t-
shirt with the Fraternity’s symbol and a pair of black shorts with stripes. xxx .

Again riding on Alberto’s car and wearing "barong tagalog over a white t-shirt with the symbol TAU
Sigma Phi, black short pants with stripe, socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left
the party with Robert Chan and Alberto at more or less past 1 A.M. of December 13, 1991 and
proceeded to the Building which they reached at about 1:30 A.M. (Ibid., p. 19). He had left his gray
traveling bag containing "white t-shirt, sando, underwear, socks, and toothbrush (Ibid., pp. 17-18) at
room 306 in the afternoon of the previous day ….

At the gate of the Building, CHITO knocked and …, S/G Ferolin, looking at his watch, approached.
Because of this, CHITO also looked at his own watch and saw that the time was 1:30 (Ibid., p. 26).
S/G Ferolin initially refused CHITO entry …. xxx.

S/G Ferolin called Unit 306 …. xxx. When S/G Ferolin finally let him in, already about ten (10)
minutes had lapsed since CHITO first arrived (Ibid., p. 25).

CHITO went up the floor, found the key left for him by Joseph behind the opened jalousie window
and for five (5) minutes vainly tried to open the door until Rommel Montes, … approached him and
even commented: "Okey ang suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried
to open the door of Unit 306 … but was likewise unsuccessful. CHITO then decided to just call out to
Joseph while knocking at the door.

It took another (5) minutes of calling out and knocking before Joseph, …, at last answered the door.
Telling him, "Ikaw na ang bahala diyan" Joseph immediately turned his back on CHITO and went
inside the bedroom. CHITO , …changed to a thinner shirt and went to bed. He still had on the same
short pants given by Perla Duran from the fraternity party (TSN, June 16, 1994, p. 20).

At 6 o’clock in the morning of December 13, 1991, CHITO woke up …. He was already in his school
uniform when, around 6:30 A.M, Joseph came to the room not yet dressed up. He asked the latter
why this was so and, without elaborating on it, Joseph told him that something had happened and to
just go to Room 310 which CHITO did.
At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to
identify, went to the room of MALOU and tried to rape her (TSN, April 25, 1994, p. 36). xxx.

Joseph told him that the security guard was not letting anybody out of the Building …. When two (2)
CIS men came to the unit asking for Renato Baleros, CHITO presented himself. Congressman
Rodolfo B. Albano, father of MALOU, then asked him for the key to Room 306….

xxx xxx xxx

The CIS men looked inside the bedroom and on the windows. Joseph was told to dress up and the
two (2) of them, CHITO and Joseph, were brought to Camp Crame.

When they arrived at Camp Crame …, Col. Managuelod asked Joseph inside his room and talked to
him for 30 minutes. xxx. No one interviewed CHITO to ask his side.

xxx xxx xxx

Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed them to undergo
physical examination at the Camp Crame Hospital ….. At the hospital, … CHITO and Joseph were
physically examined by a certain Dr. de Guzman who told them to strip ….

xxx xxx xxx

CHITO had left his gray bag containing, among others, the black striped short pants lent to him by
Perla Duran (Exhibit "8-A", Original Records, p. 345), inside Room 310 at more/less 6:30 to 7 o’clock
in the morning of December 13, 1991. The next time that he saw it was between 8 to 9 P.M. when
he and Joseph were brought before Fiscal Abesamis for inquest. One of the CIS agents had taken it
there and it was not opened up in his presence but the contents of the bag were already laid out on
the table of Fiscal Abesamis who, however, made no effort to ask CHITO if the items thereat were
his.

The black Adidas short pants purportedly found in the bag, CHITO denied putting in his gray bag
which he had left at Room 306 in the early evening of December 12, 1991 before going to the
fraternity house. He likewise disavowed placing said black Adidas short pants in his gray bag when
he returned to the apartment at past 1:00 o’clock in the early morning of December 13, 1991 (TSN,
June 16, 1994, p. 24), nor when he dressed up at about 6 o’clock in the morning to go to school and
brought his gray bag to Room 310 (Ibid. 25). In fact, at any time on December 13, 1991, he was not
aware that his gray bag ever contained any black short Adidas pants (Ibid). He only found out for the
first time that the black Adidas short pants was alluded to be among the items inside his gray bag
late in the afternoon, when he was in Camp Crame.

Also taking the witness stand for the defense were petitioner’s fraternity brothers, Alberto Leonardo
and Robert Chan, who both testified being with CHITO in the December 12, 1991 party held in Dr.
Duran’s place at Greenhills, riding on the same car going to and coming from the party and dropping
the petitioner off the Celestial Marie building after the party. Both were one in saying that CHITO was
wearing a barong tagalog, with t-shirt inside, with short pants and leather shoes at the time they
parted after the party.7 Rommel Montes, a tenant of Room 310 of the said building, also testified
seeing CHITO between the hours of 1:30 and 2:00 A.M. of December 13, 1991 trying to open the
door of Room 306 while clad in dark short pants and white barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with stripes
after the dunking party held in her father’s house.8 Presented as defense expert witness was
Carmelita Vargas, a forensic chemistry instructor whose actual demonstration in open court showed
that chloroform, being volatile, evaporates in thirty (30) seconds without tearing nor staining the cloth
on which it is applied.9

On December 14, 1994, the trial court rendered its decision10 convicting petitioner of attempted rape
and accordingly sentencing him, thus:

WHEREFORE, under cool reflection and prescinding from the foregoing, the Court finds the accused
Renato D. Baleros, Jr., alias "Chito", guilty beyond reasonable doubt of the crime of attempted rape
as principal and as charged in the information and hereby sentences him to suffer an imprisonment
ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of Prision Correctional, as
Minimum to TEN (10) YEARS of Prision Mayor as Maximum, with all the accessory penalties
provided by law, and for the accused to pay the offended party Martina Lourdes T. Albano, the sum
of P50,000.00 by way of Moral and exemplary damages, plus reasonable Attorney’s fees of
P30,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs.

SO ORDERED.

Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-G.R. CR
No. 17271.

As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999, affirmed
the trial court’s judgment of conviction, to wit:

WHEREFORE, finding no basis in fact and in law to deviate from the findings of the court a quo, the
decision appealed from is hereby AFFIRMED in toto. Costs against appellant.

SO ORDERED.11

Petitioner moved for reconsideration, but his motion was denied by the CA in its equally assailed
resolution of March 31, 1999.12

Petitioner is now with this Court, on the contention that the CA erred -

1. In not finding that it is improbable for petitioner to have committed the attempted rape
imputed to him, absent sufficient, competent and convincing evidence to prove the offense
charged.

2. In convicting petitioner of attempted rape on the basis merely of circumstantial evidence

since the prosecution failed to satisfy all the requisites for conviction based thereon.

3. In not finding that the circumstances it relied on to convict the petitioner are unreliable,
inconclusive and contradictory.

4. In not finding that proof of motive is miserably wanting in his case.

5. In awarding damages in favor of the complainant despite the fact that the award was
improper and unjustified absent any evidence to prove the same.
 6. In failing to appreciate in his favor the constitutional presumption of innocence and that
moral certainty has not been met, hence, he should be acquitted on the ground that the
offense charged against him has not been proved beyond reasonable doubt.

Otherwise stated, the basic issue in this case turns on the question on whether or not the CA erred
in affirming the ruling of the RTC finding petitioner guilty beyond reasonable doubt of the crime of
attempted rape.

After a careful review of the facts and evidence on record in the light of applicable jurisprudence, the
Court is disposed to rule for petitioner’s acquittal, but not necessarily because there is no direct
evidence pointing to him as the intruder holding a chemical-soaked cloth who pinned Malou down on
the bed in the early morning of December 13, 1991.

Positive identification pertains essentially to proof of identity and not per se to that of being an
eyewitness to the very act of commission of the crime. There are two types of positive identification.
A witness may identify a suspect or accused as the offender as an eyewitness to the very act of the
commission of the crime. This constitutes direct evidence. There may, however, be instances where,
although a witness may not have actually witnessed the very act of commission of a crime, he may
still be able to positively identify a suspect or accused as the perpetrator of a crime as when, for
instance, the latter is the person or one of the persons last seen with the victim immediately before
and right after the commission of the crime. This is the second type of positive identification, which
forms part of circumstantial evidence.13 In the absence of direct evidence, the prosecution may resort
to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in secret
and under condition where concealment is highly probable. If direct evidence is insisted under all
circumstances, the prosecution of vicious felons who committed heinous crimes in secret or
secluded places will be hard, if not well-nigh impossible, to prove.14

Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial evidence
may be sufficient for conviction. The provision reads:

Sec. 4. Circumstantial evidence, when sufficient – Circumstantial evidence is sufficient for conviction
if –

a) There is more than one circumstance;

b) The facts from which the inferences are derived are proven; and

c) The combination of all the circumstances is such as to produce a conviction beyond

reasonable doubt.

In the present case, the positive identification of the petitioner forms part of circumstantial evidence,
which, when taken together with the other pieces of evidence constituting an unbroken chain, leads
to only fair and reasonable conclusion, which is that petitioner was the intruder in question.

We quote with approval the CA’s finding of the circumstantial evidence that led to the identity of the
petitioner as such intruder:

Chito was in the Building when the attack on MALOU took place. He had access to the room of
MALOU as Room 307 where he slept the night over had a window which allowed ingress and egress
to Room 306 where MALOU stayed. Not only the Building security guard, S/G Ferolin, but Joseph
Bernard Africa as well confirmed that CHITO was wearing a black "Adidas" shorts and fraternity T-
shirt when he arrived at the Building/Unit 307 at 1:30 in the morning of December 13, 1991. Though
it was dark during their struggle, MALOU had made out the feel of her intruder’s apparel to be
something made of cotton material on top and shorts that felt satin-smooth on the bottom.

From CHITO’s bag which was found inside Room 310 at the very spot where witness Renato
Alagadan saw CHITO leave it, were discovered the most incriminating evidence: the handkerchief
stained with blue and wet with some kind of chemicals; a black "Adidas" satin short pants; and a
white fraternity T-shirt, also stained with blue. A different witness, this time, Christian Alcala,
identified these garments as belonging to CHITO. As it turned out, laboratory examination on these
items and on the beddings and clothes worn by MALOU during the incident revealed that the
handkerchief and MALOU’s night dress both contained chloroform, a volatile poison which causes
first degree burn exactly like what MALOU sustained on that part of her face where the chemical-
soaked cloth had been pressed.

This brings the Court to the issue on whether the evidence adduced by the prosecution has
established beyond reasonable doubt the guilt of the petitioner for the crime of attempted rape.

The Solicitor General maintained that petitioner, by pressing on Malou’s face the piece of cloth
soaked in chemical while holding her body tightly under the weight of his own, had commenced the
performance of an act indicative of an intent or attempt to rape the victim. It is argued that
petitioner’s actuation thus described is an overt act contemplated under the law, for there can not be
any other logical conclusion other than that the petitioner intended to ravish Malou after he
attempted to put her to an induced sleep. The Solicitor General, echoing what the CA said, adds that
if petitioner’s intention was otherwise, he would not have lain on top of the victim. 15

Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal
knowledge or intercourse with a woman under any of the following circumstances: (1) By using force
or intimidation; (2) When the woman is deprived of reason or otherwise unconscious; and (3) When
the woman is under twelve years of age or is demented. Under Article 6, in relation to the
aforementioned article of the same code, rape is attempted when the offender commences the
commission of rape directly by overt acts and does not perform all the acts of execution which
should produce the crime of rape by reason of some cause or accident other than his own
spontaneous desistance.16

Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M. Recto in
People vs. Lamahang,17 stated that "the attempt which the Penal Code punishes is that which has a
logical connection to a particular, concrete offense; that which is the beginning of the execution of
the offense by overt acts of the perpetrator, leading directly to its realization and consummation."
Absent the unavoidable connection, like the logical and natural relation of the cause and its effect, as
where the purpose of the offender in performing an act is not certain, meaning the nature of the act
in relation to its objective is ambiguous, then what obtains is an attempt to commit an indeterminate
offense, which is not a juridical fact from the standpoint of the Penal Code. 18

There is absolutely no dispute about the absence of sexual intercourse or carnal knowledge in the
present case. The next question that thus comes to the fore is whether or not the act of the
petitioner, i.e., the pressing of a chemical-soaked cloth while on top of Malou, constitutes an overt
act of rape.
1avvphil. net

Overt or external act has been defined as some physical activity or deed, indicating the intention to
commit a particular crime, more than a mere planning or preparation, which if carried out to its
complete termination following its natural course, without being frustrated by external obstacles nor
by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense.19

Harmonizing the above definition to the facts of this case, it would be too strained to construe
petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which would induce her to
sleep as an overt act that will logically and necessarily ripen into rape. As it were, petitioner did not
commence at all the performance of any act indicative of an intent or attempt to rape Malou. It
cannot be overemphasized that petitioner was fully clothed and that there was no attempt on his part
to undress Malou, let alone touch her private part. For what reason petitioner wanted the
complainant unconscious, if that was really his immediate intention, is anybody’s guess. The CA
maintained that if the petitioner had no intention to rape, he would not have lain on top of the
complainant. Plodding on, the appellate court even anticipated the next step that the petitioner would
have taken if the victim had been rendered unconscious. Wrote the CA:

The shedding of the clothes, both of the attacker and his victim, will have to come later. His sexual
organ is not yet exposed because his intended victim is still struggling. Where the intended victim is
an educated woman already mature in age, it is very unlikely that a rapist would be in his naked
glory before even starting his attack on her. He has to make her lose her guard first, or as in this
case, her unconsciousness.20

At bottom then, the appellate court indulges in plain speculation, a practice disfavored under the rule
on evidence in criminal cases. For, mere speculations and probabilities cannot substitute for proof
required to establish the guilt of an accused beyond reasonable doubt. 21

In Perez vs. Court of Appeals,22 the Court acquitted therein petitioner of the crime of attempted rape,
pointing out that:

xxx. In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for
there to be an attempted rape, the accused must have commenced the act of penetrating his sexual
organ to the vagina of the victim but for some cause or accident other than his own spontaneous
desistance, the penetration, however, slight, is not completed.

xxx xxx xxx

Petitioner’s act of lying on top of the complainant, embracing and kissing her, mashing her breasts,
inserting his hand inside her panty and touching her sexual organ, while admittedly obscene and
detestable acts, do not constitute attempted rape absent any showing that petitioner actually
commenced to force his penis into the complainant’s sexual organ. xxx.

Likewise in People vs. Pancho,23 the Court held:

xxx, appellant was merely holding complainant’s feet when his Tito Onio arrived at the alleged locus
criminis. Thus, it would be stretching to the extreme our credulity if we were to conclude that mere
holding of the feet is attempted rape.

Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the premises, of
any wrongdoing whatsoever. The information filed against petitioner contained an allegation that he
forcefully covered the face of Malou with a piece of cloth soaked in chemical. And during the trial,
Malou testified about the pressing against her face of the chemical-soaked cloth and having
struggled after petitioner held her tightly and pinned her down. Verily, while the series of acts
committed by the petitioner do not determine attempted rape, as earlier discussed, they constitute
unjust vexation punishable as light coercion under the second paragraph of Article 287 of the
Revised Penal Code. In the context of the constitutional provision assuring an accused of a crime
the right to be informed of the nature and cause of the accusation, 24 it cannot be said that petitioner
was kept in the dark of the inculpatory acts for which he was proceeded against. To be sure, the
information against petitioner contains sufficient details to enable him to make his defense. As aptly
observed by then Justice Ramon C. Aquino, there is no need to allege malice, restraint or
compulsion in an information for unjust vexation. As it were, unjust vexation exists even without the
element of restraint or compulsion for the reason that this term is broad enough to include any
human conduct which, although not productive of some physical or material harm, would unjustly
annoy or irritate an innocent person.25 The paramount question is whether the offender’s act causes
annoyance, irritation, torment, distress or disturbance to the mind of the person to whom it is
directed.26 That Malou, after the incident in question, cried while relating to her classmates what she
perceived to be a sexual attack and the fact that she filed a case for attempted rape proved beyond
cavil that she was disturbed, if not distressed by the acts of petitioner.

The penalty for coercion falling under the second paragraph of Article 287 of the Revised Penal
Code is arresto menor or a fine ranging from ₱5.00 to ₱200.00 or both.

WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional Trial
Court of Manila, is hereby REVERSED and SET ASIDE and a new one entered ACQUITTING
petitioner Renato D. Baleros, Jr. of the charge for attempted rape. Petitioner, however, is adjudged
GUILTY of light coercion and is accordingly sentenced to 30 days of arresto menor and to pay a fine
of ₱200.00, with the accessory penalties thereof and to pay the costs.

SO ORDERED.

G. R. No. 160188 June 21, 2007

ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,

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

DECISION

TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence. Petitioner
effectively concedes having performed the felonious acts imputed against him, but instead insists
that as a result, he should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on a common theory
expounded in two well-known decisions1 rendered decades ago by the Court of Appeals, upholding
the existence of frustrated theft of which the accused in both cases were found guilty. However, the
rationale behind the rulings has never been affirmed by this Court.

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

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

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

Thereafter, petitioner left the parking area and haled a taxi. He boarded the cab and directed it
towards the parking space where Calderon was waiting. Calderon loaded the cartons of Tide
Ultramatic inside the taxi, then boarded the vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the open parking area. When Lago asked petitioner for a
receipt of the merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a
warning shot to alert his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered. 8 The filched items seized from
the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3)
additional cases of detergent, the goods with an aggregate value of ₱12,090.00.9

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

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both claimed having
been innocent bystanders within the vicinity of the Super Sale Club on the afternoon of 19 May 1994
when they were haled by Lago and his fellow security guards after a commotion and brought to the
Baler PNP Station. Calderon alleged that on the afternoon of the incident, he was at the Super Sale
Club to withdraw from his ATM account, accompanied by his neighbor, Leoncio Rosulada. 11 As the
queue for the ATM was long, Calderon and Rosulada decided to buy snacks inside the supermarket.
It was while they were eating that they heard the gunshot fired by Lago, leading them to head out of
the building to check what was

transpiring. As they were outside, they were suddenly "grabbed" by a security guard, thus
commencing their detention.12 Meanwhile, petitioner testified during trial that he and his cousin, a
Gregorio Valenzuela,13 had been at the parking lot, walking beside the nearby BLISS complex and
headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The
gunshot caused him and the other people at the scene to start running, at which point he was
apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the
security office until around 9:00 p.m., at which time he and the others were brought to the Baler
Police Station. At the station, petitioner denied having stolen the cartons of detergent, but he was
detained overnight, and eventually brought to the prosecutor’s office where he was charged with
theft.14 During petitioner’s cross-examination, he admitted that he had been employed as a "bundler"
of GMS Marketing, "assigned at the supermarket" though not at SM.15

In a Decision16 promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City,
Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They were
sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to
seven (7) years of prision mayor as maximum.17 The RTC found credible the testimonies of the
prosecution witnesses and established the convictions on the positive identification of the accused
as perpetrators of the crime.

Both accused filed their respective Notices of Appeal,18 but only petitioner filed a brief19 with the
Court of Appeals, causing the appellate court to deem Calderon’s appeal as abandoned and
consequently dismissed. Before the Court of Appeals, petitioner argued that he should only be
convicted of frustrated theft since at the time he was apprehended, he was never placed in a
position to freely dispose of the articles stolen.20 However, in its Decision dated 19 June 2003,21 the
Court of Appeals rejected this contention and affirmed petitioner’s conviction. 22 Hence the present
Petition for Review,23 which expressly seeks that petitioner’s conviction "be modified to only of
Frustrated Theft."24

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious
intent and his actual participation in the theft of several cases of detergent with a total value of
₱12,090.00 of which he was charged.25 As such, there is no cause for the Court to consider a factual
scenario other than that presented by the prosecution, as affirmed by the RTC and the Court of
Appeals. The only question to consider is whether under the given facts, the theft should be deemed
as consummated or merely frustrated.

II.

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

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

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

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

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

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

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

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

In contrast, the determination of whether a crime is frustrated or consummated necessitates an initial

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

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

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

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

Art. 308. Who are liable for theft.— Theft is committed by any person who, with intent to gain but
without violence against or intimidation of persons nor force upon things, shall take personal
property of another without the latter’s consent.

Theft is likewise committed by:

1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or
to its owner;

2. Any person who, after having maliciously damaged the property of another, shall remove or make
use of the fruits or object of the damage caused by him; and

3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which
belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall
gather cereals, or other forest or farm products.

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

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

In his commentaries, Judge Guevarra traces the history of the definition of theft, which under early
Roman law as defined by Gaius, was so broad enough as to encompass "any kind of physical
handling of property belonging to another against the will of the owner," 43 a definition similar to that
by Paulus that a thief "handles (touches, moves) the property of another." 44 However, with the
Institutes of Justinian, the idea had taken hold that more than mere physical handling, there must
further be an intent of acquiring gain from the object, thus: "[f]urtum est contrectatio rei fraudulosa,
lucri faciendi causa vel ipsius rei, vel etiam usus ejus possessinisve."45 This requirement of animo
lucrandi, or intent to gain, was maintained in both the Spanish and Filipino penal laws, even as it has
since been abandoned in Great Britain.46
In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to
characterize theft. Justice Regalado notes that the concept of apoderamiento once had a
controversial interpretation and application. Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding that it had to be coupled with "the intent to
appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the
lawful owner of the thing."47 However, a conflicting line of cases decided by the Court of Appeals
ruled, alternatively, that there must be permanency in the taking 48 or an intent to permanently deprive
the owner of the stolen property;49 or that there was no need for permanency in the taking or in its
intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of
the owner already constituted apoderamiento.50 Ultimately, as Justice Regalado notes, the Court
adopted the latter thought that there was no need of an intent to permanently deprive the owner of
his property to constitute an unlawful taking.51

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

On the critical question of whether it was consummated or frustrated theft, we are obliged to apply
Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft would
have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce
theft as a consequence, "do not produce [such theft] by reason of causes independent of the will of
the perpetrator." There are clearly two determinative factors to consider: that the felony is not
"produced," and that such failure is due to causes independent of the will of the perpetrator. The
second factor ultimately depends on the evidence at hand in each particular case. The first,
however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised
Penal Code52 as to when a particular felony is "not produced," despite the commission of all the acts
of execution.

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

U.S. v. Adiao53 apparently supports that notion. Therein, a customs inspector was charged with theft
after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his
desk at the Custom House. At no time was the accused able to "get the merchandise out of the
Custom House," and it appears that he "was under observation during the entire
transaction."54 Based apparently on those two circumstances, the trial court had found him guilty,
instead, of frustrated theft. The Court reversed, saying that neither circumstance was decisive, and
holding instead that the accused was guilty of consummated theft, finding that "all the elements of
the completed crime of theft are present."55 In support of its conclusion that the theft was
consummated, the Court cited three (3) decisions of the Supreme Court of Spain, the discussion of
which we replicate below:

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

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

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

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

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

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

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court cases cited in the
latter, in that the fact that the offender was able to succeed in obtaining physical possession of the
stolen item, no matter how momentary, was able to consummate the theft.
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein contradict the position of
petitioner in this case. Yet to simply affirm without further comment would be disingenuous, as there
is another school of thought on when theft is consummated, as reflected in the Diño and Flores
decisions.

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

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

Considerando que para que el apoderamiento de la cosa sustraida sea determinate de la

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

Integrating these considerations, the Court of Appeals then concluded:

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

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

As noted earlier, the appellate court admitted it found "no substantial variance"
between Diño and Flores then before it. The prosecution in Flores had sought to distinguish that
case from Diño, citing a "traditional ruling" which unfortunately was not identified in the decision
itself. However, the Court of Appeals pointed out that the said "traditional ruling" was qualified by the
words "is placed in a situation where [the actor] could dispose of its contents at once." 66 Pouncing on
this qualification, the appellate court noted that "[o]bviously, while the truck and the van were still
within the compound, the petitioner could not have disposed of the goods ‘at once’." At the same
time, the Court of Appeals conceded that "[t]his is entirely different from the case where a much less
bulk and more common thing as money was the object of the crime, where freedom to dispose of or
make use of it is palpably less restricted," 67 though no further qualification was offered what the
effect would have been had that alternative circumstance been present instead.

Synthesis of the Diño and Flores rulings is in order. The determinative characteristic as to whether
the crime of theft was produced is the ability of the actor "to freely dispose of the articles stolen, even
if it were only momentary." Such conclusion was drawn from an 1888 decision of the Supreme Court
of Spain which had pronounced that in determining whether theft had been consummated, "es
preciso que so haga en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas
o menos momentaneamente." The qualifier "siquiera sea mas o menos momentaneamente" proves
another important consideration, as it implies that if the actor was in a capacity to freely dispose of
the stolen items before apprehension, then the theft could be deemed consummated. Such
circumstance was not present in either Diño or Flores, as the stolen items in both cases were
retrieved from the actor before they could be physically extracted from the guarded compounds from
which the items were filched. However, as implied in Flores, the character of the item stolen could
lead to a different conclusion as to whether there could have been "free disposition," as in the case
where the chattel involved was of "much less bulk and more common x x x, [such] as money x x x." 68

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

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

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

There are at least two other Court of Appeals rulings that are at seeming variance with the Diño and
Flores rulings. People v. Batoon73 involved an accused who filled a container with gasoline from a
petrol pump within view of a police detective, who followed the accused onto a passenger truck
where the arrest was made. While the trial court found the accused guilty of frustrated qualified theft,
the Court of Appeals held that the accused was guilty of consummated qualified theft, finding that
"[t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking
with intent to gain is enough to consummate the crime of theft."74

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

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

IV.

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

As narrated in Empelis, the owner of a coconut plantation had espied four (4) persons in the
premises of his plantation, in the act of gathering and tying some coconuts. The accused were
surprised by the owner within the plantation as they were carrying with them the coconuts they had
gathered. The accused fled the scene, dropping the coconuts they had seized, and were
subsequently arrested after the owner reported the incident to the police. After trial, the accused
were convicted of qualified theft, and the issue they raised on appeal was that they were guilty only
of simple theft. The Court affirmed that the theft was qualified, following Article 310 of the Revised
Penal Code,79 but further held that the accused were guilty only of frustrated qualified theft.

It does not appear from the Empelis decision that the issue of whether the theft was consummated
or frustrated was raised by any of the parties. What does appear, though, is that the disposition of
that issue was contained in only two sentences, which we reproduce in full:

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

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

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

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

Notably, Empelis has not since been reaffirmed by the Court, or even cited as authority on theft.
Indeed, we cannot see how Empelis can contribute to our present debate, except for the bare fact
that it proves that the Court had once deliberately found an accused guilty of frustrated theft. Even if
Empelis were considered as a precedent for frustrated theft, its doctrinal value is extremely
compromised by the erroneous legal premises that inform it, and also by the fact that it has not been
entrenched by subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated theft is viable in
this jurisdiction. Considering the flawed reasoning behind its conclusion of frustrated theft, it cannot
present any efficacious argument to persuade us in this case. Insofar as Empelis may imply that
convictions for frustrated theft are beyond cavil in this jurisdiction, that decision is subject to
reassessment.

V.

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

Son reos de hurto:

1. Los que con ánimo de lucrarse, y sin volencia o intimidación en las personas ni fuerza en las
cosas, toman las cosas muebles ajenas sin la voluntad de su dueño.

2. Los que encontrándose una cosa perdida y sabiendo quién es su dueño se la apropriaren co
intención de lucro.

3. Los dañadores que sustrajeren o utilizaren los frutos u objeto del daño causado, salvo los casos
previstos en los artίculos 606, núm. 1.0; 607, núms, 1.0, 2.0 y 3.0; 608, núm. 1.0; 611; 613;
Segundo párrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court
decisions were handed down. However, the said code would be revised again in 1932, and several
times thereafter. In fact, under the Codigo Penal Español de 1995, the crime of theft is now simply
defined as "[e]l que, con ánimo de lucro,

tomare las cosas muebles ajenas sin la voluntad de su dueño será castigado" 82
Notice that in the 1870 and 1995 definition of theft in the penal code of Spain, "la libre disposicion" of
the property is not an element or a statutory characteristic of the crime. It does appear that the
principle originated and perhaps was fostered in the realm of Spanish jurisprudence.

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

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

Hay frustración cuando los reos fueron sorprendidos por las guardias cuando llevaban los sacos de
harino del carro que los conducia a otro que tenían preparado, 22 febrero 1913; cuando el resultado
no tuvo efecto por la intervención de la policia situada en el local donde se realizó la sustracción que
impidió pudieran los reos disponer de lo sustraído, 30 de octubre 1950. Hay "por lo menos"
frustración, si existe apoderamiento, pero el culpale no llega a disponer de la cosa, 12 abril 1930;
hay frustración "muy próxima" cuando el culpable es detenido por el perjudicado acto seguido de
cometer la sustracción, 28 febrero 1931. Algunos fallos han considerado la existencia de frustración
cuando, perseguido el culpable o sorprendido en el momento de llevar los efectos hurtados, los
abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, éstos,
conforme a lo antes expuesto, son hurtos consumados.86

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

La doctrina hoy generalmente sustentada considera que el hurto se consuma cuando la cosa queda
de hecho a la disposición del agente. Con este criterio coincide la doctrina sentada últimamente
porla jurisprudencia española que generalmente considera consumado el hurto cuando el culpable
coge o aprehende la cosa y ésta quede por tiempo más o menos duradero bajo su poder. El hecho
de que éste pueda aprovecharse o no de lo hurtado es indiferente. El delito no pierde su carácter de
consumado aunque la cosa hurtada sea devuelta por el culpable o fuere recuperada. No se concibe
la frustración, pues es muy dificil que el que hace cuanto es necesario para la consumación del
hurto no lo consume efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante,
declara hurtos frustrados son verdaderos delitos consumados. 87 (Emphasis supplied)

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

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

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

V.

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

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

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

For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage,
the question is again, when is the crime of theft produced? There would be all but certain unanimity
in the position that theft is produced when there is deprivation of personal property due to its taking
by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony
that the offender, once having committed all the acts of execution for theft, is able or unable to freely
dispose of the property stolen since the deprivation from the owner alone has already ensued from
such acts of execution. This conclusion is reflected in Chief Justice Aquino’s commentaries, as
earlier cited, that "[i]n theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his act of making use of the
thing was frustrated."91
It might be argued, that the ability of the offender to freely dispose of the property stolen delves into
the concept of "taking" itself, in that there could be no true taking until the actor obtains such degree
of control over the stolen item. But even if this were correct, the effect would be to downgrade the
crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution
have not been completed, the "taking not having been accomplished." Perhaps this point could
serve as fertile ground for future discussion, but our concern now is whether there is indeed a crime
of frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover,
such issue will not apply to the facts of this particular case. We are satisfied beyond reasonable
doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired
physical possession of the stolen cases of detergent for a considerable period of time that he was
able to drop these off at a spot in the parking lot, and long enough to load these onto a taxicab.

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

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

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

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

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

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

Or, more likely, the appreciation of several classes of factual circumstances such as the size and
weight of the property, the location of the property, the number and identity of people present at the
scene of the crime, the number and identity of people whom the offender is expected to encounter
upon fleeing with the stolen property, the manner in which the stolen item had been housed or
stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would
come into account, relevant as that would be on whether such property is capable of free disposal at
any stage, even after the taking has been consummated.
All these complications will make us lose sight of the fact that beneath all the colorful detail, the
owner was indeed deprived of property by one who intended to produce such deprivation for
reasons of gain. For such will remain the presumed fact if frustrated theft were recognized, for
therein, all of the acts of execution, including the taking, have been completed. If the facts establish
the non-completion of the taking due to these peculiar circumstances, the effect could be to
downgrade the crime to the attempted stage, as not all of the acts of execution have been
performed. But once all these acts have been executed, the taking has been completed, causing the
unlawful deprivation of property, and ultimately the consummation of the theft.

Maybe the Diño/Flores rulings are, in some degree, grounded in common sense. Yet they do not
align with the legislated framework of the crime of theft. The Revised Penal Code provisions on theft
have not been designed in such fashion as to accommodate said rulings. Again, there is no
language in Article 308 that expressly or impliedly allows that the "free disposition of the items
stolen" is in any way determinative of whether the crime of theft has been produced. Diño itself did
not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was
ultimately content in relying on Diño alone for legal support. These cases do not enjoy the weight of
stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them
susceptible to reversal. The same holds true of Empilis, a regrettably stray decision which has not
since found favor from this Court.

We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As
petitioner has latched the success of his appeal on our acceptance of the Diño and Flores rulings,
his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken
all these years for us to recognize that there can be no frustrated theft under the Revised Penal
Code does not detract from the correctness of this conclusion. It will take considerable amendments
to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to Viada
yields to the higher reverence for legislative intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

G.R. No. L-36461 June 29, 1984

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
HERNANDO DIO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Luis R. Feria for accused-appellant.

ABAD SANTOS, J.:

Automatic review of a decision of the defunct Circuit Criminal Court, 7th Judicial District, which
imposed the death penalty.
An information for robbery with homicide was filed on October 1, 1971, against Danilo Tobias and a
John Doe. The order to arrest Tobias was returned unserved and he is still on the "Wanted Persons
Files."

On December 7, 1971, the information was amended to name Hernando Dio as the John Doe, the
appellant herein. As amended, the information reads:

That on or about the 24th day of July 1971, in Pasay City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused Danilo Tobias @
Danny Kulot and Hernando Dio @ Way Kaon, conspiring and confederating together
and mutually helping one another, with intent to gain and without the knowledge and
consent of the owner, and with the use of 'balisong', one of the accused was
provided with, and by means of force, threats and intimidation employed upon the
latter, did then and there wilfully, unlawfully and feloniously take, steal and rob away
from one Crispulo P. Alega, one Seiko brand men's wrist watch (recovered); and the
said accused in accordance with and pursuant to their conspiracy, and in order to
carry out their avowed purpose, with intent to kill did then and there wilfully,
unlawfully and feloniously attack, assault and stab for several times Crispulo P.
Alega, and which "balisong" was directly aimed at the vital portions of the body of
said Crispulo P. Alega, thus performing all the acts of execution causing his
instantaneous death. (Expediente, p. 68.)

Accused Hernando Dio pleaded not guilty when he was arraigned and after trial the court rendered
the following judgment:

WHEREFORE, finding the accused, Hernando Dio, Guilty, beyond reasonable doubt,
of the crime of Robbery with Homicide as defined under Article 294 of the Revised
Penal Code, as charged in the Amended Information, the Court hereby sentences
him to suffer the penalty of DEATH; to indemnify the heirs of the victim, Crispulo
Alega the amount of P12,000.00; to pay moral damages in the amount of P10,000.00
and another P10,000.00, as exemplary damages; and to pay the costs. (Id., pp. 105-
106.)

The People's version of the facts is as follows:

At about noontime on July 24, 1971, Crispulo Alega, a civil engineer by profession
working at the Sugar Construction Company, with a salary of more than P500.00 a
month went to the Southeastern College, Pasay City to fetch his girlfriend, Remedios
Maniti, a third year high school student thereat (pp. 55, 59, 63-64, 11 1973). They
proceeded to the Pasay City Public Market. As they were going up the stairs leading
to the Teresa and Sons Restaurant, Remedios, who was was about an arms-length
ahead of Crispulo suddenly heard the dropping of her folders and other things, being
carried by Crispulo. When she looked back, she saw a man — later Identified as
Danilo Tobias but still at large — twisting the neck of Crispulo, while the appellant
was holding his (Crispulo's) two hands (pp. 56-57, 61, tsn., Id.). The appellant and
his companion tried to divest Crispulo of his "Seiko" wrist watch, but Crispulo resisted
their attempt and fought the robbers. At this juncture, the man who was twisting the
neck of Crispulo stabbed the latter on the left side of his chest. Crispulo ran down the
stairs followed by Remedies who shouted for help. When he reached the front of the
Pasay Commercial Bank he fell down and expired. At the time of his death, the
"Seiko" watch was strapped to his wrist. (pp. 57-61, tsn., Id., pp. 7-9, tsn., Jan. 22,
1973).lwp hl@itç
 An autopsy conducted on the victim's body by Dr. Ricardo Ibarola medicolegal officer
of the NBI revealed that the cause of death was a stab wound at the region below his
left breast which penetrated the heart. Said doctor opined that judging from the
natural appearance of the stab wound, it must have been caused by a single-bladed
pointed instrument (pp. 6, 13-14, tsn., Jan. 11, 1973; Exh. C and C-1, p. 87, rec.).
The necropsy report (Exh. A, p. 85, rec.) stated that the decease sustained the
following injuries:

Abrasions: right zygomatic region, 0.6 x 0.4 infralabial region, right

side 1.7 x 1.4 come forearm right, upper third, posterolateral aspect,
0.6 x 0.4 clean and left, lower third, posterior aspect, 0.4 x 0.2 come
right knee, 0.6 x 0.4 come right leg, upper third, anterior aspect, 1.4 x
0.8

Incise wounds, neck, left supers-lateral aspect, two in number, 2.5

and 1.2 crime in lengths, both superficial

Stab wound: left inframammary region, level of the 5th intercostal

space along the parasternal line, 6.0 cm. from the anterior midline,
0.5 crime below the left nipple, elliptical in shape, 3.0 cm. long
extended laterally by 3.0 crime long rising slightly downwards,
medially edges, clean cut, sutured, medial extremity of which is blunt
and lateral extremity, sharp; directed upwards, medially and
backwards involving, among others, the soft tissues, thru the 5th
intercostal muscles, grazing the 6th rib superiorly, perforating the left
pleural cavity only, into the middle mediastinum by penetrating the
pericardium antero-inferiorly, perforating the interventricular system
and penetrating the left ventricle of the heart at its apical portions,
approximate depth 11.0 cm.

After the appellant's arrest on October 24, 1972, he was investigated at the Detective
Bureau of the Pasay City Police Department and gave a statement (Exh. D, p. 90,
rec.) in the presence of Pat. Arturo Rimorin admitting that on the date and nine of the
incident, he and his co-accused, Danilo Tobias administrative Kardong Kaliwa alias
Danny Kulot, held up a man and a woman; that they did not get the watch of the
man; that he held the victim's hands but the latter was able to free himself; that
Danny Kulot stabbed the man, that when the victim ran, they also ran away; and that
he did not know what happened to the victim (Exhs. D, D-1, D-2, D-3, D-4 and D-5,
p. 90, rec.; pp. 27-3 1, tsn., Jan. 11, 1973). (Brief, pp. 2-6.)

Atty. Luis R. Feria, counsel de oficio of the appellant, states:

After a careful, considered and conscientious examination of the evidence adduced

in the instant case, undersigned counsel is constrained to conclude that the findings
of fact of the trial court, upholding the version of the prosecution as against that of
the defense, must have to be sustained. As against the sole and uncorroborated
testimony of appellant merely denying any participation in the commission of the
crime imputed to him (while admitting that he was present at the scene of the crime),
there is a formidable array of evidence against him consisting of the clear and
convincing testimony of Remedios Maniti, who was in the company of the deceased
at the time he was killed and an eyewitness to the entire incident; the extra-judicial
written confession of defendant-appellant (Exhibit D) admitting participation in the
 commission of the crime; the testimony of Patrolman Arturo Rimorin who conducted
the investigation of, and before whom Exhibit D was executed and signed by,
defendant- appellant, as well straight the testimony of Sgt. Geronimo de los Santos
of the Pasay Police to whom defendant-appellant orally admitted that he held the
victim's hands although he had no part in the actual stabbing of the deceased.

With respect to the testimony of the eyewitness Remedios Maniti there is absolutely
nothing in the record (except perhaps that she was the sweetheart of the deceased)
to show, or even hint, that she had any reasons to perjure herself by falsely
incriminating defendant-appellant in such a grievous crime, no bias, interest or
prejudice against the latter as would move or induce her to faithlessly accuse him of
a crime which he had not committed. More than ever, the time-honored ruling of this
Honorable Court, too elemental to require citations, that the findings of the trial court
on the question of credibility of the witnesses, having had the advantage of observing
their demeanor and manner of testifying, should not be disturbed in the absence of
strong and cogent reasons therefor, applies fully to the case at bar. No such reasons
can be found herein.

The same observations may be made with respect to the testimonies of Patrolman
Rimorin and Sgt. de los Santos. Moreover, as has been held by this Honorable
Court, where the prosecution witnesses, being government employees who testified
as to what transpired in the performance of their duties, were neutral and
disinterested and had no reason to falsely testify against the accused, and did not
subject him to any violence, torture or bodily harm, their testimonies should be given
more weight than that of the accused (P. v. Pereto, 21 SCRA 1469: P. v. Del Castillo,
25 SCRA 716.)

Then there is the extrajudicial confession of defendant-appellant, Exhibit D. True it is

that, belatedly during the trial, appellant claimed that his answers appearing in
Exhibit D were given because he was afraid as he was intimidated and struck on the
buttock with a long piece of wood (pp. 32-34, t.s.n. Ses. of January 22, 1973). It is
submitted that this last-minute, desperate and uncorroborated claim falls flat in the
face not only of the presumption of voluntariness in the execution of confessions, but
also of the testimony of Patrolman Rimorin to the effect that Exhibit D was executed
voluntarily and that defendant-appellant was never maltreated (pp. 26, 31-32, t.s.n.
Ses. of January 11, 1973), and the latter's own admission that before he signed
Exhibit D, its contents were first read to him in Tagalog and that he fully understood
the same (pp. 24, t.s.n. Ses. of January 22, 1973), and his further admission that he
has not filed any case against those who had allegedly maltreated him (p. 33,
t.s.n,Id.). Moreover, where the alleged confession reveals spontaneity of the
declarations belying the claim that they were concocted or dictated by the police, the
court win reject the case that the confession was involuntary (P. v. Castro, 11 SCRA
699). (Brief, pp. 3-5.)
lwphl@i tç

Notwithstanding the foregoing factual admission, Atty. Feria makes the following assignment of
errors:

1. THE TRIAL COURT ERRED IN CONVICTING DEFENDANT- APPELLANT OF

THE SPECIAL COMPLEX CRIME OF ROBBERY WITH HOMICIDE AS DEFINED
AND PENALIZED UNDER ART. 294, PAR. 1, OF THE REVISED PENAL CODE.
 2. EVEN ASSUMING THAT THE CRIME COMMITTED BY DEFENDANT-
APPELLANT IS ROBBERY WITH HOMICIDE, THE TRIAL COURT ERRED IN
SENTENCING HIM TO SUFFER THE DEATH PENALTY.

We have scrutinized the record, particularly the testimonial evidence, and indeed there is no doubt
that the appellant had a hand in the death of Crispulo Alega. There remains to be considered,
however, the claims of the appellant which are made in the assignment of errors.

The appellant claims in his first assignment of error that he should not have been convicted of the
special complex crime of robbery with homicide because the robbery was not consummated. He
states that there was only an attempted robbery.

The Solicitor General states:

... We are constrained to agree with defense' contention. The evidence adduced
show that the appellant and his companion were unsuccessful in their criminal
venture of divesting the victim of his wrist watch so as to constitute the consummated
crime of robbery. Indeed, as adverted to earlier, when the victim expired, the 'Seiko'
watch was still securely strapped to his wrist (p. 59, t.s.n., Jan. 11, 1973). The killing
of Crispulo Alega may be considered as merely incidental to and an offshoot of the
plan to carry out the robbery, which however was not consummated because of the
resistance offered by the deceased. Consequently, this case would properly come
under the provision of Art. 297 of the Revised Penal Code which states that —

When by reason or on occasion of an attempted or frustrated robbery

a homicide is committed, the person guilty of such offenses shall be
punished by reclusion temporal in its maximum period to reclusion
perpetua, unless the homicide committed shall deserve a higher
penalty under the provisions of this Code. (Brief, pp. 5-6.)

In his second assignment of error the appellant claims that the information does not allege any
aggravating circumstance nor was any proved during the trial.

Again the Solicitor General states:

We likewise agree with the contention of counsel in his second assigned error that
the evidence presented by the prosecution did not show the attendance of any
aggravating circumstance in the commands of the crime and neither did the court a
quo make any finding in this respect (pp. 7-8, appellant's brief). (Id, p. 6.)

The crime committed by the appellant is attempted robbery with homicide and the penalty prescribed
by law is reclusion temporal in its maximum period to reclusion perpetua. Since there was no
attendant mitigating nor aggravating circumstance, the penalty should be applied in its medium
period, i.e. 18 years, 8 months and 1 day to 20 years. The Indeterminate Sentence Law has also to
be applied.

WHEREFORE, the judgment of the trial court is hereby modified; the appellant is found guilty
beyond reasonable doubt of the special complex crime of attempted robbery with homicide and he is
sentenced to suffer an indeterminate penalty of 10 years and 1 day of prision mayor as minimum to
20 years of reclusion temporal as maximum, to indemnify the heirs of Crispulo Alega in the amount
of P30,000.00, and to pay one-half of the costs. SO ORDERED.
G.R. No. 86163 April 26, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BIENVENIDO SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, and SIMPLICIO
CANASARES, BIENVENIDO SALVILLA, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Resurreccion S. Salvilla for defendant-appellant.

MELENCIO-HERRERA, J.:

Accused Bienvenido Salvilla alone appeals from the Decision of the Regional Trial Court, Branch 28,
Iloilo City, *dated 29 August 1988, in Criminal Case No. 20092, finding him and his co-accused
Reynaldo, Ronaldo and Simplicio, all surnamed Canasares, guilty beyond reasonable doubt of the
crime of "Robbery with Serious Physical Injuries and Serious Illegal Detention" and sentencing them
to suffer the penalty of reclusion perpetua.

The Information filed against them reads:

The undersigned City Fiscal accuses BIENVENIDO SALVILLA, REYNALDO CANASARES,

RONALDO CANASARES, and SIMPLICIO CANASARES, whose maternal surnames, dated
and places of birth cannot be ascertained of the crime of ROBBERY WITH SERIOUS
PHYSICAL INJURIES AND SERIOUS ILLEGAL DETENTION (Art, 294, paragraph 3, in
conjunction with Article 267 of the Revised Penal Code), committed as follows:

That on or about the 12th day of April, 1986, in the City of Iloilo, Philippines and within the
jurisdiction of this Court, said accused, conspiring and confederating among themselves,
working together and helping one another, armed with guns and handgrenade and with the
use of violence or intimidation employed on the person of Severino Choco, Mary Choco,
Mimie Choco and Rodita Hablero did then and there wilfully, unlawfully and criminally take
and carry away, with intent of gain, cash in the amount of P20,000.00, two (2) Men's wrist
watches, one (1) Lady's Seiko quartz wrist watch and one (1) Lady's Citizen wrist watch and
assorted jewelries, all valued at P50,000.00; that on the occasion and by reason of said
robbery, Mary Choco suffered serious physical injuries under paragraph 2 of Article 263,
Bienvenido Salvilla likewise suffered serious physical injuries and Reynaldo Canasares also
suffered physical injuries; that the said accused also illegally detained, at the compound of
the New Iloilo Lumber Company, Iznart Street, Iloilo City, Severino Choco, owner/proprietor
of said Lumber Company, Mary Choco, Mimie Choco, who is a minor, being 15 years of age,
and Rodita Hablero, who is a salesgirl at said Company; that likewise on the occasion of the
robbery, the accused also asked and were given a ransom money of P50,000.00; that the
said crime was attended by aggravating circumstances of band, and illegal possession of
firearms and explosives; that the amount of P20,000.00, the ransom money of P50,000.00,
two (2) Men's wrist watches, two (2) lady's wrist watches, one (1) .38 caliber revolver and
one (1) live grenade were recovered from the accused; to the damage and prejudice of the
New Iloilo Lumber Company in the amount of P120,000.00.

The evidence for the prosecution may be re-stated as follows:

On 12 April 1986, a robbery was staged by the four accused at the New Iloilo Lumber Yard at about
noon time. The plan was hatched about two days before. The accused were armed with homemade
guns and a hand grenade. When they entered the establishment, they met Rodita Hablero an
employee thereat who was on her way out for her meal break and announced to her that it was a
hold-up. She was made to go back to the office and there Appellant Salvilla pointed his gun at the
owner, Severino Choco, and his two daughters, Mary and Mimie the latter being a minor 15 years of
age, and told the former that all they needed was money. Hearing this, Severino told his daughter,
Mary, to get a paper bag wherein he placed P20,000.00 cash (P5,000.00, according to the defense)
and handed it to Appellant. Thereafter, Severino pleaded with the four accused to leave the
premises as they already had the money but they paid no heed. Instead, accused Simplicio
Canasares took the wallet and wristwatch of Severino after which the latter, his two daughters, and
Rodita, were herded to the office and kept there as hostages.

At about 2:00 o'clock of the same day, the hostages were allowed to eat. The four accused also took
turns eating while the others stood guard. Then, Appellant told Severino to produce P100,000.00 so
he and the other hostages could be released. Severino answered that he could not do so because it
was a Saturday and the banks were closed.

In the meantime, police and military authorities had surrounded the premises of the lumber yard.
Major Melquiades B. Sequio Station Commander of the INP of Iloilo City, negotiated with the
accused using a loud speaker and appealed to them to surrender with the assurance that no harm
would befall them as he would accompany them personally to the police station. The accused
refused to surrender or to release the hostages.

Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the negotiations. In her
dialogue with the accused, which lasted for about four hours, Appellant demanded P100,000.00, a
coaster, and some raincoats. She offered them P50,000.00 instead, explaining the difficulty of
raising more as it was a Saturday. Later, the accused agreed to receive the same and to release
Rodita to be accompanied by Mary Choco in going out of the office. When they were out of the door,
one of the accused whose face was covered by a handkerchief, gave a key to Mayor Caram. With
this, Mayor Caram unlocked the padlocked door and handed to Rodita the P50,000.00, which the
latter, in turn, gave to one of the accused. Rodita was later set free but Mary was herded back to the
office.

Mayor Caram, Major Sequio and even volunteer radio newscasters continued to appeal to the
accused to surrender peacefully but they refused. UItimatums were given but the accused did not
1 âwphi 1

budge. Finally, the police and military authorities decided to launch an offensive and assault the
place. This resulted in injuries to the girls, Mimie and Mary Choco as well as to the accused Ronaldo
and Reynaldo Canasares. Mary suffered a "macerated right lower extremity just below the knee" so
that her right leg had to be amputated. The medical certificate described her condition as "in a state
of hemorrhagic shock when she was brought in to the hospital and had to undergo several major
operations during the course of her confinement from April 13, 1986 to May 30, 1986."

For his part, Appellant Salvilla confirmed that at about noon time of 12 April 1986 he and his co-
accused entered the lumber yard and demanded money from the owner Severino Choco He
demanded P100,000.00 but was given only P5,000.00, which he placed on the counter of the office
of the lumber yard. He admitted that he and his co-accused kept Severino, his daughters, and
Rodita inside the office. He maintained, however, that he stopped his co-accused from getting the
wallet and wristwatch of Severino and, like the P5,000.00 were all left on the counter, and were
never touched by them. He claimed further that they had never fired on the military because they
intended to surrender. Appellant's version also was that during the gunfire, Severino's daughter
stood up and went outside; he wanted to stop her but he himself was hit by a bullet and could not
prevent her. Appellant also admitted the appeals directed to them to surrender but that they gave
themselves up only much later.

After trial, the Court a quo meted out a judgment of conviction and sentenced each of the accused
"to suffer the penalty of reclusion perpetua, with the accessory penalties provided by law and to pay
the costs."

Appellant Salvilla's present appeal is predicated on the following Assignments of Error:

1. The lower court erred in holding that the crime charged was consummated and in not
holding that the same was merely attempted.

2. The lower court erred in not appreciating the mitigating circumstance of voluntary
surrender."

Upon the facts and the evidence, we affirm.

The defense contends that "The complete crime of larceny (theft/robbery) as distinguished from an
attempt requires asportation or carrying away, in addition to the taking, In other words, the crime of
robbery/theft has three consecutive stages: 1) the giving 2) the taking and 3) the carrying away or
asportation And without asportation the crime committed is only attempted" (Memorandum for
Appellant Salvilla, Records, p. 317).

There is no question that in robbery, it is required that there be a taking of personal property
belonging to another. This is known as the element of asportation the essence of which is the taking
of a thing out of the possession of the owner without his privity and consent and without the animus
revertendi (Aquino, Revised Penal Code, p. 97, citing5 C.J. 607). In fact, if there is no actual taking,
there can be no robbery. Unlawful taking of personal property of another is an essential part of the
crime of robbery.

Appellant insists that while the "giving" has been proven, the "taking" has not. And this is because
neither he nor his three co-accused touched the P5,000.00 given by Severino nor the latter's wallet
or watch during the entire incident; proof of which is that none of those items were recovered from
their persons.

Those factual allegations are contradicted by the evidence. Rodita, the lumberyard employee,
testified that upon demand by Appellant, Severino put P20,000.00 inside a paper bag and
subsequently handed it to Appellant. In turn, accused Simplicio Canasares took the wallet and
wristwatch of Severino. In respect of the P50,000.00 from Mayor Caram, Rodita declared that the
Mayor handed the amount to her after she (the Mayor) had opened the padlocked door and that she
thereafter gave the amount to one of the holduppers. The "taking" was, therefore, sufficiently proved
(TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The money demanded, and the wallet and wristwatch
were within the dominion and control of the Appellant and his co-accused and completed the taking.

The State established a "taking" sufficient to support a conviction of robbery even though the
perpetrators were interrupted by police and so did not pick up the money offered by the
victim, where the defendant and an accomplice, armed with a knife and a club respectively,
had demanded the money from the female clerk of a convenience store, and the clerk had
complied with their instructions and placed money from the register in a paper bag and then
placed the bag on the counter in front of the two men; these actions brought the
money within the dominion and control of defendant and completed the taking. (Johnson vs.
State, 432 So 2d 758).
 "Severance of the goods from the possession of the owner and absolute control of the
property by the taker,even for an instant, constitutes asportation (Adams vs. Commonwealth,
154 SW 381; State vs. Murray, 280 SW 2d 809; Mason vs. Commonwealth, 105 SE 2d 149)
[Emphasis supplied].

It is no defense either that Appellant and his co-accused had no opportunity to dispose of the
personalities taken. That fact does not affect the nature of the crime, From the moment the offender
gained possession of the thing, even if the culprit had no opportunity to dispose of the same, the
unlawful taking is complete (Reyes, Revised Penal Code Annotated, Book II, 1981 ed., p. 594).

The crime is consummated when the robber acquires possession of the property, even if for
a short time, and it is not necessary that the property be taken into the hands of the robber,
or that he should have actually carried the property away, out of the physical presence of the
lawful possessor, or that he should have made his escape with it" (People vs. Quinn, 176 P
2d 404; Woods vs. State, 220 SW 2d 644; People vs. Beal, 39 P 2d 504; People vs. Clark,
160 P 2d 553).

Contrary to Appellant's submission, therefore, a conviction for consummated and not merely
attempted Robbery is in order.

It is the contention of Appellant that Rodita could not have seen the taking because the place was
dark since the doors were closed and there were no windows. It will be recalled, however, that
Rodita was one of the hostages herself and could observe the unfolding of events. Her failure to
mention the taking in her sworn statement would not militate against her credibility, it being settled
that an affidavit is almost always incomplete and inaccurate and does not disclose the complete
facts for want of inquiries or suggestions (People vs. Andaya, G.R. No. L-63862, 31 July 1987, 152
SCRA 570; People vs. Tan, et al., 89 Phil. 337 [1951]).

The fact, too, that Rodita was an employee of Severino would not lessen her credibility. The defense
has not proven that she was actuated by any improper motive in testifying against the accused.

In the last analysis, the basic consideration centers around the credibility of witnesses in respect of
which the findings of the Trial Court are entitled to great weight as it was in a superior position to
assess the same in the course of the trial (see People vs. Ornoza G.R. No. L-56283, 30 June 1987,
151 SCRA 495; People vs. Alcantara, G.R. No. L-38042, 30 June 1987, 151 SCRA 326).

Anent the second assignment of error, the "surrender" of the Appellant and his co-accused cannot
be considered in their favor to mitigate their liability. To be mitigating, a surrender must have the
following requisites: (a) that the offender had not been actually arrested; (b) that the offender
surrendered himself to a person in authority or to his agent; and (c) that the surrender was voluntary
(People vs. Canamo, G.R. No. L-62043, 13 August 1985, 138 SCRA 141).

The "surrender" by the Appellant and his co-accused hardly meets these requirements. They were,
indeed, asked to surrender by the police and military authorities but they refused until only much
later when they could no longer do otherwise by force of circumstances when they knew they were
completely surrounded and there was no chance of escape. The surrender of the accused was held
not to be mitigating as when he gave up only after he was surrounded by the constabulary and
police forces (People vs. Sigayan et al., G.R. Nos. L-18523-26, 30 April 1966, 16 SCRA 839; People
vs. Mationg G.R. No. L-33488, 29 March 1982, 113 SCRA 167). Their surrender was not
spontaneous as it was motivated more by an intent to insure their safety. And while it is claimed that
they intended to surrender, the fact is that they did not despite several opportunities to do so. There
is no voluntary surrender to speak of (People vs. Dimdiman 106 Phil. 391 [1959]).
All told, the assigned errors remain unsubstantiated and we find the guilt of the accused-appellant,
Bienvenido Salvilla, established beyond reasonable doubt.

Although unassigned as an error, we deem it necessary to turn now to the nature of the linked
offenses involved and the penalty imposed by the Trial Court.

Appellant and his co-accused were charged in the Information with "Robbery with Serious Physical
Injuries and Serious Illegal Detention ("Art. 295, par. 3, in conjunction with Art. 267, RPC )and
sentenced to reclusion perpetua. We agree with the Trial Court that a complex crime under Article
48 of the Revised Penal Code has been committed such that the penalty for the more serious
offense of Serious Illegal Detention (Art. 267, Revised Penal Code), or "reclusion perpetua to death,"
is to be imposed instead of the penalty prescribed for Robbery with Serious Physical Injuries (Art.
294 (3), which is reclusion temporal.

Under Article 48, a complex crime arises "when an offense is a necessary means for committing the
other." The term "necessary means" does not connote indispensable means for if it did then the
offense as a "necessary means" to commit another would be an indispensable element of the latter
and would be an ingredient thereof. The phrase "necessary means" merely signifies that one crime
is committed to facilitate and insure the commission of the other (Aquino, Revised Penal Code, Vol.
I, 1987 ed., p. 624, citing Dissent, Montemayor, J., Amado Hernandez, 99 Phil. 515). In this case,
the crime of Serious Illegal Detention was such a "necessary means" as it was selected by Appellant
and his co-accused to facilitate and carry out more effectively their evil design to stage a robbery.

The facts of this case differ from those in People vs. Astor, et al. (G.R. Nos. L-71765-66, 29 April
1987, 149 SCRA 325) where the accused were convicted of Robbery but acquitted in the case for
Serious Illegal Detention and where it was held that "the detention is absorbed in the crime of
robbery." For one, in Astor, there were two (2) separate Informations filed, one for Robbery and
another for Serious Illegal Detention. In the present case, only one Information was filed charging
the complex offense. For another, in Astor, the robbery had already been consummated and the
detention was merely to forestall the capture of the robbers by the police. Not so in this case, where
the detention was availed of as a means of insuring the consummation of the robbery. Further,
in Astor, the detention was only incidental to the main crime of robbery so that it was held therein:

. . . were appellants themselves not trapped by the early arrival of the police at the scene of
the crime, they would have not anymore detained the people inside since they have already
completed their job. Obviously, appellants were left with no choice but to resort to detention
of these people as security, until arrangements for their safe passage were made. This is not
the crime of illegal detention punishable under the penal laws but an act of restraint in order
to delay the pursuit of the criminals by peace officers (People v. Sol, 9 Phil. 265; People v.
Uday 55 Phil. 167, cited in the Revised Penal Code, Aquino, Vol. 3, 1976 ed., p. 1337).
Where the victims in a robbery case were detained in the course of robbery, the detention is
absorbed by the crime of robbery (P. v. Baysa, 92 Phil. 1008, id.). In the case at bar, the
detention was only incidental to the main crime of robbery, and although in the course
thereof women and children were also held, that threats to kill were made, the act should not
be considered as a separate offense. Appellants should only be held guilty of robbery.

In contract, the detention in the case at bar was not only incidental to the robbery but was a
necessary means to commit the same. After the amount of P20,000.00 was handed to Appellant,
1âwphi1

the latter and his co-accused still refused to leave. The victims were then taken as hostages and the
demand to produce an additional P100,000.00 was made as a prerequisite for their release. The
detention was not because the accused were trapped by the police nor were the victims held as
security against the latter. The detention was not merely a matter of restraint to enable the
malefactors to escape, but deliberate as a means of extortion for an additional amount. The police
and other authorities arrived only much later after several hours of detention had already passed.
And, despite appeals to appellant and his co-accused to surrender, they adamantly refused until the
amount of P100,000.00 they demanded could be turned over to them. They even considered
P50,000.00, the amount being handed to them, as inadequate.

The foregoing features also distinguish this case from those of U.S. v. Sol, 9 Phil. 265 [1907] where
the restraint was for no other purpose than to prevent the victims from reporting the crime to the
authorities; from People v. Gamboa, 92 Phil. 1085 [1953] where the victims were taken to a place
one kilometer away and shot in order to liquidate the witnesses to the robbery; from People v.
Baysa, 92 Phil. 1008 [1953]; People v. Manzanilla, 43 Phil. 167 [1922], all of which cases were cited
in Astor and where the victims were only incidentally detained so that the detention was deemed
absorbed in robbery.

In other words, unlike in the above cases, the elements of the offense of Serious Illegal Detention
are present in this case. The victims were illegally deprived of their liberty. Two females (Mary and
Minnie) and a minor (Minnie), a specified circumstance in Article 267 (3), were among those
detained. The continuing detention was also for the purpose of extorting ransom, another listed
circumstance in Article 267 (last parag.) not only from the detained persons themselves but even
from the authorities who arrived to rescue them.

It follows then that as the detention in this case was not merely incidental to the robbery but a
necessary means employed to facilitate it, the penalty imposed by the Trial Court is proper.

WHEREFORE, the judgment appealed from is hereby AFFIRMED. Proportionate costs.

SO ORDERED.

G.R. No. L-43530 August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
AURELIO LAMAHANG, defendant-appellant.

Honesto K. Bausa for appellant.

Office of the Solicitor-General Hilado for appellee.

RECTO, J.:

The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First
Instance of Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two years and
four months of prision correccional and to an additional penalty of ten years and one day of prision
mayor for being an habitual delinquent, with the accessory penalties of the law, and to pay the costs
of the proceeding.

At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on
Delgado and C.R. Fuentes streets of the City of Iloilo, caught the accused in the act of making an
opening with an iron bar on the wall of a store of cheap goods located on the last named street. At
that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The accused
had only succeeded in breaking one board and in unfastening another from the wall, when the
policeman showed up, who instantly arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the
trial judge and the Solicitor-General, as constituting attempted robbery, which we think is erroneous.

It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which
has a logical relation to a particular, concrete offense; that, which is the beginning of the execution of
the offense by overt acts of the perpetrator, leading directly to its realization and consummation. The
attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is
ambiguous, is not a juridical fact from the standpoint of the Penal Code. There is no doubt that in the
case at bar it was the intention of the accused to enter Tan Yu's store by means of violence, passing
through the opening which he had started to make on the wall, in order to commit an offense which,
due to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its
execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively
performed constitute a mere beginning of execution; it is necessary to establish its unavoidable
connection, like the logical and natural relation of the cause and its effect, with the deed which, upon
its consummation, will develop into one of the offenses defined and punished by the Code; it is
necessary to prove that said beginning of execution, if carried to its complete termination following
its natural course, without being frustrated by external obstacles nor by the voluntary desistance of
the perpetrator, will logically and necessarily ripen into a concrete offense. Thus, in case of robbery,
in order that the simple act of entering by means of force or violence another person's dwelling may
be considered an attempt to commit this offense, it must be shown that the offender clearly intended
to take possession, for the purpose of gain, of some personal property belonging to another. In the
instant case, there is nothing in the record from which such purpose of the accused may reasonably
be inferred. From the fact established and stated in the decision, that the accused on the day in
question was making an opening by means of an iron bar on the wall of Tan Yu's store, it may only
be inferred as a logical conclusion that his evident intention was to enter by means of force said
store against the will of its owner. That his final objective, once he succeeded in entering the store,
was to rob, to cause physical injury to the inmates, or to commit any other offense, there is nothing
in the record to justify a concrete finding.
1avvp hil.ñe t

It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the
material damage is wanting, the nature of the action intended (accion fin) cannot exactly be
ascertained, but the same must be inferred from the nature of the acts executed (accion
medio). Hence, the necessity that these acts be such that by their very nature, by the facts to
which they are related, by the circumstances of the persons performing the same, and by the
things connected therewith, they must show without any doubt, that they are aimed at the
consummation of a crime. Acts susceptible of double interpretation , that is, in favor as well
as against the culprit, and which show an innocent as well as a punishable act, must not and
can not furnish grounds by themselves for attempted nor frustrated crimes. The relation
existing between the facts submitted for appreciation and the offense which said facts are
supposed to produce must be direct; the intention must be ascertained from the facts and
therefore it is necessary, in order to avoid regrettable instances of injustice, that the mind be
able to directly infer from them the intention of the perpetrator to cause a particular injury.
This must have been the intention of the legislator in requiring that in order for an attempt to
exist, the offender must commence the commission of the felony directly by overt acts, that is
to say, that the acts performed must be such that, without the intent to commit an offense,
they would be meaningless.

Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the
commission of the offense, are not punished except when they are aimed directly to its execution,
and therefore they must have an immediate and necessary relation to the offense."

Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in
order to declare that such and such overt acts constitute an attempted offense it is necessary
 that their objective be known and established, or that said acts be of such nature that they
themselves should obviously disclose the criminal objective necessarily intended, said
objective and finality to serve as ground for the designation of the offense: . . . .

In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does
not constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales,
59 Phil., 606, and decisions of the Supreme Court of Spain therein cited). Under article 280 of the
Revised Penal Code, this offense is committed when a private person shall enter the dwelling of
another against the latter's will. The accused may be convicted and sentenced for an attempt to
commit this offense in accordance with the evidence and the following allegation contained in the
information: "... the accused armed with an iron bar forced the wall of said store by breaking a board
and unfastening another for the purpose of entering said store ... and that the accused did not
succeed in entering the store due to the presence of the policeman on beat Jose Tomambing, who
upon hearing the noise produced by the breaking of the wall, promptly approached the accused ... ."
Under the circumstances of this case the prohibition of the owner or inmate is presumed. (U.S. vs.
Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21
Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused
must be taken into consideration the aggravating circumstances of nighttime and former convictions,
— inasmuch as the record shows that several final judgments for robbery and theft have been
rendered against him — and in his favor, the mitigating circumstance of lack of instruction. The
breaking of the wall should not be taken into consideration as an aggravating circumstance
inasmuch as this is the very fact which in this case constitutes the offense of attempted trespass to
dwelling.

The penalty provided by the Revised Penal Code for the consummated offense of trespass to
dwelling, if committed with force, is prision correccional in its medium and maximum periods and a
fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted
trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and medium
periods. Because of the presence of two aggravating circumstances and one mitigating
circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the same
Code, the accused is not entitled to credit for one-half of his preventive imprisonment.

Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of
attempted trespass to dwelling, committed by means of force, with the aforesaid aggravating and
mitigating circumstances and sentenced to three months and one day of arresto mayor, with the
accessory penalties thereof and to pay the costs.

G.R. No. 33463 December 18, 1930

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
BASILIO BORINAGA, defendant-appellant.

Paulo Jaro for appellant.

Attorney-General Jaranilla for appellee.

MALCOM, J.:
Sometime prior to March 4, 1929, an American by the name of Harry H. Mooney, a resident of the
municipality of Calubian, Leyte, contracted with one Juan Lawaan for the construction of a fish
corral. Basilio Borinaga was associated with Lawaan in the construction of the corral. On the
morning of March 4, 1929, Lawaan, with some of his men, went to Mooney's shop and tried to collect
from him the whole amount fixed by the contract, notwithstanding that only about two-thirds of the
fish corral had been finished. As was to be expected, Mooney refused to pay the price agreed upon
at that time. On hearing this reply of Mooney, Lawaan warned him that if he did not pay, something
would happen to him, to which Mooney answered that if they wanted to do something to him they
should wait until after breakfast, Lawaan then left with his men, and Mooney, after partaking of his
morning meal, returned to his shop.

On the evening of the same day, Mooney was in the store of a neighbor by the name of Perpetua
Najarro. He had taken a seat on a chair in front of the Perpetua, his back being to the window.
Mooney had not been there long when Perpetua saw Basilio Borinaga from the window strike with a
knife at Mooney, but fortunately for the latter, the knife lodged in the back of the chair on which
Mooney was seated. Mooney fell from the chair as a result of the force of the blow, but was not
injured. Borinaga ran away towards the market place. Before this occurred, it should be stated that
Borinaga had been heard to tell a companion: "I will stab this Mooney, who is an American brute."
After the attack, Borinaga was also heard to say that he did not hit the back of Mooney but only the
back of the chair. But Borinaga was persistent in his endeavor, and hardly ten minutes after the first
attack, he returned, knife in hand, to renew it, but was unable to do so because Mooney and
Perpetua were then on their guard and turned a flashlight on Borinaga, frightening him away. Again
the same night, Borinaga was overheard stating that he had missed his mark and was unable to give
another blow because of the flashlight. The point of the knife was subsequently, on examination of
the chair, found embedded in it.

The foregoing occurrences gave rise to the prosecution of Basilio Borinaga in the Court of First
Instance of Leyte for the crime of frustrated murder. The defense was alibi, which was not given
credence. The accused was convicted as charged, by Judge Ortiz, who sentenced him to fourteen
years, eight months, and one day of imprisonment, reclusion temporal, with the accessory penalties
and the costs.

The homicidal intent of the accused was plainly evidenced. The attendant circumstances
conclusively establish that murder was in the heart and mind of the accused. More than mere
menaces took place. The aggressor stated his purpose, which was to kill, and apologized to his
friends for not accomplishing that purpose. A deadly weapon was used. The blow was directed
treacherously toward vital organs of the victim. The means used were entirely suitable for
accomplishment. The crime should, therefore, be qualified as murder because of the presence of the
circumstance of treachery.

The only debatable question, not referred to in the briefs, but which must be decided in order to
dispose of the appeal, is: Do the facts constitute frustrated murder or attempted murder within the
meaning of article 3 of the Penal Code? Although no exact counterpart to the facts at bar has been
found either in Spanish or Philippine jurisprudence, a majority of the court answer the question
propounded by stating that the crime committed was that of frustrated murder. This is true
notwithstanding the admitted fact that Mooney was not injured in the least.

The essential condition of a frustrated crime, that the author perform all the acts of execution,
attended the attack. Nothing remained to be done to accomplish the work of the assailant
completely. The cause resulting in the failure of the attack arose by reason of forces independent of
the will of the perpetrator. The assailant voluntarily desisted from further acts. What is known as the
subjective phase of the criminal act was passed. (U. S. vs. Eduave [1917], 36 Phil., 209; People vs.
Mabugat [1926], 51 Phil., 967.)

No superfine distinctions need be drawn in favor of that accused to establish a lesser crime than that
of frustrated murder, for the facts disclose a wanton disregard of the sanctity of human life fully
meriting the penalty imposed in the trial court.

Based on foregoing considerations, the judgment appealed from will be affirmed, with the costs of
this instance against the appellant.

Avanceña, C.J., Villamor, Ostrand, Johns and Romualdez, JJ., concur. lawphi 1>n et

Separate Opinions

VILLA-REAL, J., dissenting:

We dissent from the opinion of the majority in so far as it finds the defendant-appellant guilty of the
crime of frustrated murder instead of that of an attempt to commit murder.

Article 3 of the Penal Code provides as follows:

ART. 3. Frustrated felonies and attempts to commit felonies are punishable, as well as those
which are consummated.

A felony is frustrated when the offender performs all the acts of execution which should
produce the felony as a consequence, but which, nevertheless, do no produce it by reason of
causes independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of the felony directly by
overt acts, and does not perform all the acts of execution which constitute the felony by
reason of some cause or accident other than his own voluntary desistance.

The pertinent facts as found by the court below and by this court are the following:

On the evening of the same day, Mooney was in the store of a neighbor by the name of Perpetua
Najarro. He had taken a seat on a chair in front of Perpetua, his back being to the window. Mooney
had not been there long when Perpetua saw Basilio Borinaga from the window strike with a knife at
Mooney, but fortunately for the latter, the knife lodged in the back of the chair on which Mooney was
seated. Mooney fell from the chair as a result of the force of the blow, but was not injured. Borinaga
ran away towards the market place. Before this occurred, it should be stated that Borinaga had been
heard to tell a companion: "I will stab this Mooney, who is an American brute." After the attack,
Borinaga was also heard to say that he did not hit the back of Mooney but only the back of the chair.
But Borinaga was persistent in his endeavor, and hardly ten minutes after the first attack, he
returned, knife in hand, to renew it, but was unable to do so because Mooney and Perpetua were
then on their guard and turned a flashlight on Borinaga, frightening him away. Again that same night,
Borinaga was overheard stating that he had missed his mark and was unable to give another blow
because of the flashlight. The point of the knife was subsequently, on examination of the chair, found
embedded in it.

Since the facts constituting frustrated felony and those constituting an attempt to commit felony are
integral parts of those constituting consummated felony, it becomes important to know what facts
would have been necessary in order that the case at bar might have been a consummated murder,
so that we may determine whether the facts proved during the trial constitute frustrated murder or
simply an attempt to commit murder.

In order that the crime committed by the defendant-appellant might have been a consummated
murder it would have been necessary for him to have inflicted a deadly wound upon a vital spot of
the body of Mooney, with treachery, as a result of which he should have died.

Since according to the definition given by the Code a frustrated felony is committed "when the
offender performs all the acts of execution which should produce the felony as a consequence, but
which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator"
let us examine the facts of record to find out whether the said defendant-appellant has performed all
the acts of execution which should produce the murder of Mooney as a consequence. The prisoner
at bar, intending to kill Mooney, approached him stealthily from behind and made movement with his
right hand to strike him in the back with a deadly knife, but the blow, instead of reaching the spot
intended, landed on the frame of the back of the chair on which Mooney was sitting at the time and
did not cause the slightest physical injury on the latter. The acts of execution performed by the
defendant-appellant did not produce the death of Mooney as a consequence nor could they have
produced it because the blow did not reach his body; therefore the culprit did not perform all the acts
of execution which should produce the felony. There was lacking the infliction of the deadly wound
upon a vital spot of the body of Mooney.

It is true that the frame of the back of the chair stood between the deadly knife and the back of
Mooney; but what it prevented was the wounding of said Mooney in the back and not his death, had
he been wounded. It is the preventing of death by causes independent of the will of the perpetrator,
after all the acts of execution which should produce the felony as a consequence had been
performed, that constitutes frustrated felony, according to the law, and not the preventing of the
performance of all the acts of execution which constitute the felony, as in the present case. The
interference of the frame of the back of the chair which prevented the defendant-appellant from
wounding Mooney in the back with a deadly knife, made his acts constitute an attempt to commit
murder; for he had commenced the commission of the felony directly by overt acts, and did not
perform all the acts of execution which constitute the felony by reason of a cause or accident other
than his own voluntary desistance.

The foregoing considerations force us to the conclusion that the facts alleged in the information and
proved during the trial are not sufficient to constitute the crime of frustrated murder, but simply the
crime of an attempt to commit murder.

G.R. Nos. L-39303-39305 March 17, 1934

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffs-appellee,

vs.
FELIPE KALALO, ET AL., defendants.
FELIPE KALALO, MARCELO KALALO, JUAN KALALO, and GREGORIO RAMOS, appellants.
Meynardo M. Farol and Feliciano Gomez for appellants.
Acting Solicitor-General Peña for appellee.

DIAZ, J.:

On November 10, 1932, the herein appellants Felipe Kalalo, Marcelo Kalalo, Juan Kalalo, and
Gregorio Ramos, were tried in the Court of First Instance of Batangas jointly with Alejandro Garcia,
Fausta Abrenica and Alipia Abrenica in criminal cases Nos. 6858, 6859 and 6860, the first two for
murder, and the last for frustrated murder. Upon agreement of the parties said three cases were
tried together and after the presentation of their respective evidence, the said court acquitted
Alejandro Garcia, Fausta Abrenica and Alipia Abrenica, and sentenced the appellants as follows:

In case No. 6858, for the alleged murder of Marcelino Panaligan, to seventeen years, four months
and one day of reclusion temporal, with the corresponding accessory penalties, and to indemnify the
heirs of the said deceased Marcelino Panaligan in the sum of P1,000, with the costs.

In case No. 6859, for the alleged murder of Arcadio Holgado, to seventeen years, four months and
one day of reclusion temporal, with the corresponding accessory penalties, and to indemnify the
heirs of the aforesaid victim, the deceased Arcadio Holgado, in the sum of P1,000, with the costs.

In the third case, that is, No. 6860, wherein the court a quo held that the crime committed was simply
that of discharge of firearm, not frustrated murder, the appellant Marcelo Kalalo was sentenced to
one year, eight months and twenty-one days of prision correccional and to pay the proportionate part
of the costs of the proceedings. Felipe Kalalo and Juan Kalalo, as well as their co-accused Fausta
and Alipia Abrenica, Gregorio Ramos and Alejandro Garcia, were acquitted of the charges therein.

The accused in the aforesaid three cases appealed from their respective sentences assigning six
alleged errors as committed by the trial court, all of which may be discussed jointly in view of the fact
that they raise only one question, to wit: whether or not said sentences are in accordance with law.

A careful study and examination of the evidence presented disclose the following facts: Prior to
October 1, 1932, the date of the commission of the three crimes alleged in the three informations
which gave rise to the aforesaid three cases Nos. 6858, 6859 and 6860, the appellant Marcelo
Kalalo or Calalo and Isabela Holgado or Olgado, the latter being the sister of the deceased Arcadio
Holgado and a cousin of the other deceased Marcelino Panaligan, had a litigation over a parcel of
land situated in the barrio of Calumpang of the municipality of San Luis, Province of Batangas. On
September 28, 1931, and again on December 8th of the same year, Marcelo Kalalo filed a complaint
against the said woman in the Court of First Instance of Batangas. By virtue of a motion filed by his
opponent Isabela Holgado, his first complaint was dismissed on December 7, 1931, and his second
complaint was likewise dismissed on February 5, 1932. Marcelo Kalalo cultivated the land in
question during the agricultural years 1931 and 1932, but when harvest time came Isabela Holgado
reaped all that had been planted thereon.

On October 1, 1932, Isabela Holgado and her brother Arcadio Holgado, one of the deceased,
decided to order the aforesaid land plowed, and employed several laborers for that purpose. These
men, together with Arcadio Holgado, went to the said land early that day, but Marcelo Kalalo, who
had been informed thereof, proceeded to the place accompanied by his brothers Felipe and Juan
Kalalo, his brother-in-law Gregorio Ramos and by Alejandro Garcia, who were later followed by
Fausta Abrenica and Alipia Abrenica, mother and aunt, respectively, of the first three.
The first five were all armed with bolos. Upon their arrival at the said land, they ordered those who
were plowing it by request of Isabela and Arcadio Holgado, to stop, which they did in view of the
threatening attitude of those who gave them said order. 1ªvvp hi1.n e+

Shortly after nine o'clock on the morning of the same day, Isabela Holgado, Maria Gutierrez and
Hilarion Holgado arrived at the place with food for the laborers. Before the men resumed their work,
they were given their food and not long after they had finished eating, Marcelino Panaligan, cousin of
said Isabela and Arcadio, likewise arrived. Having been informed of the cause of the suspension of
the work, Marcelino Panaligan ordered said Arcadio and the other laborers to again hitch their
respective carabaos to continue the work already began. At this juncture, the appellant Marcelo
Kalalo approached Arcadio, while the appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos, in
turn, approached Marcelino Panaligan. At a remark from Fausta Abrenica, mother of the Kalalos,
about as follows, "what is detaining you?" they all simultaneously struck with their bolos, the
appellant Marcelo Kalalo slashing Arcadio Holgado, while the appellants Felipe Kalalo, Juan Kalalo
and Gregorio Ramos slashed Marcelino Panaligan, inflicting upon them the wounds enumerated and
described in the medical certificates Exhibits I and H. Arcadio Holgado and Marcelino Panaligan died
instantly from the wounds received by them in the presence of Isabela Holgado and Maria Gutierrez,
not to mention the accused. The plowmen hired by Arcadio and Isabela all ran away.

Arcadio Holgado's body bore the following six wounds, to wit:

1. A cut wound on the ulnar side of right arm near the wrist, cutting the ulnar bone completely
and, the radius partially.

2. A cut wound on the anterior upper portion of the left arm measuring about 7 cm. long and
5 cm. wide extending to the bone and cutting the deltoid muscle across.

3. A penetrating wound on the left chest just below the clavicle going thru the first intercostal
space measuring about 8 cm. long and 2 cm wide.

4. A wound on the left side of the back about 20 cm. long following the 10th intercostal space
and injuring the lung, diaphragm, stomach and large intestine.

5. A small superficial cut wound about 2 cm. long and ½ cm. wide situated on the inner side
of the right scapula.

6. A superficial wound barely cutting the skin, about 4 cm. long in the lumbar region just to
the right of the spinal column. (Exhibit I.)

Marcelino Panaligan's body, in turn, bore the following fourteen wounds, to wit:

1. A penetrating cut wound in the epigastric region of the abdomen measuring about 7 cm.
long and 3 cm. wide cutting the omentum and injuring the lower portion of the stomach and a
portion of the transverse colon, but no actual perforation of either one of the two organs.

2. A cut wound on the head just above the forehead about 6 cm. long and 4 cm. wide lifting a
portion of scalp as a flap.

3. A cut wound on the left side of the head measuring about 7 cm. long and 2 cm. wide.
 4. A cut wound about 12 cm. long across the face just below the eyes extending from one
cheek bone to the other, perforating the left antrum and cutting the nasal bone.

5. A cut wound on the anterior portion of the left forearm extending to the bone with a flap of
skin and muscle which measures about 12 cm long and 6 cm. wide.

6. A cut wound across the dorsal side of the right hand about 5 cm. long and 2 cm. wide
cutting the bones of the hand.

7. A superficial wound about 6 cm. long and 4 cm. wide and 2 cm. deep situated in the left
axilla.

8. A cut wound about 6 cm. long and 2 cm. wide situated over the left scapula.

9. A cut wound on the right shoulder about 6 cm. long passing near the inner angle of the
scapula cutting the muscles of the shoulder.

10. A cut wound about 7 cm. long and 3 cm. wide situated near and almost parallel to the
inner border of the right scapula.

11. A wound on the back of the head, oval in shape, about 10 cm. long and 5 cm. wide from
which a flap of scalp was removed.

12. A wound across the back and left side of the neck about 12 cm. long and 7 cm. deep
cutting the vertebral column together with the great arteries and veins on the left side of the
neck.

13. A wound about 15 cm. long and 4 cm. wide on the left side of the back.

14. A small wound on the left thumb from which a portion of the bone and other tissues were
removed. (Exhibit H.)

The above detailed description of the wounds just enumerated discloses — and there is nothing of
record to contradict it all of them were caused by a sharp instrument or instruments.

After Arcadio Holgado and Marcelino Panaligan had fallen to the ground dead, the appellant Marcelo
Kalalo took from its holster on the belt of Panaligans' body, the revolver which the deceased carried,
and fired four shots at Hilarion Holgado who was then fleeing from the scene inorder to save his own
life.

The appellants attempted to prove that the fight, which resulted in the death of the two deceased,
was provoked by Marcelino Panaligan who fired a shot at Marcelo Kalalo upon seeing the latter's
determination to prevent Arcadio Holgado and his men from plowing the land in question. No such
firing, however, can be taken into consideration, in the first place, because of the existence of
competent evidence such as the testimony of Maria Gutierrez, who is a disinterested witness, which
corroborates that of Isabela Holgado in all its details, showing that the said deceased was already
lying prostrate and lifeless on the ground when the appellant Marcelo Kalalo approached him to take
his revolver for the purpose of using it, as he in fact did, against Hilarion Holgado; in the second
place, because the assault and aggression of the said appellant were not directed against said
Marcelino Panaligan but exclusively against Arcadio Holgado, the evidence of record on this point
being overwhelming, and if his claim were true, he naturally should have directed his attack at the
person who openly made an attempt against his life; in the third place, because the evidence shows
without question that Panaligan was an expert shot with a revolver, and among the eight wounds
that the appellant Marcelo Kalalo received (Exhibit 3), not one appears to have been caused by
bullet, and similarly, none of the other appellants received any wound that might, in any way,
suggest the possibility of having been caused by bullet; and finally, because the fact that he and his
co-appellants, together with those who had been charged jointly with them, had gone to the place of
the crime armed with bolos, determined at any cost to prevent the Holgados from plowing the land in
dispute, cannot but disclose not only their determination to resort to violence or something worse,
but that they did not need any provocation in order to carry out their intent.

They likewise attempted to prove that the appellant Marcelo Kalalo alone fought against the
deceased Marcelino Panaligan and Arcadio Holgado and inflicted upon them the wounds which
resulted in their death, said appellant testifying that he was compelled to do so in defense of his own
life because both of the deceased attacked him first, the former with a revolver, firing three shots at
him, and the latter with a bolo. For the same reasons hereinbefore stated, such defense of the
appellants cannot be given credit. One man alone could not have inflicted on the two deceased their
multiple wounds, particularly when it is borne in mind that one of them was better armed, because
he carried a revolver, and that he was furthermore an expert shot and scarcely two arm-lengths from
Kalalo, according to the latter's own testimony. The two witnesses for the defense, who witnessed
the crime very closely, refuted such allegation saying that Marcelo Kalalo alone fought the deceased
Arcadio Holgado and that the other three appellants went after the other deceased. It is true that
Arcadio Holgado also used his bolo to defend himself from Marcelo Kalalo's aggression but it is no
less true that five of the principal wounds of the other deceased Marcelino Panaligan were inflicted
on him from behind, inasmuch as according to Exhibit H they were all found at the back of the head,
on the neck and on his back. Neither is it less true that all the wounds of the appellant Marcelo
Kalalo were inflicted on him from the front, which fact shows that it was not he alone who inflicted the
wounds on the two deceased because had he been alone Panaligan would not have exposed his
back to be thus attacked from behind, inasmuch as he was armed with a revolver, which
circumstance undoubtedly allowed him to keep at a distance from Kalalo; and in connection with the
testimony of Isabela Holgado and Maria Gutierrez, said circumstance shows furthermore that the
three appellants Felipe Kalalo, Juan Kalalo and Gregorio Ramos attacked said Panaligan with their
respective bolos at the same time that Marcelo Kalalo attacked Arcadio Holgado, in order that all
might act simultaneously in conformity with the common intent of the four and of their coaccused to
eliminate through violence and at any cost, without much risk to them, all those who wanted to plow
the land which was the cause of the dispute between the two parties. And it is not strange that the
three appellants, who inflicted the wounds upon Marcelino Panaligan, should act as they did,
because they knew that the latter carried a revolver in a holster on his belt.

Although it may seem a repetition or redundancy, it should be stated that Marcelo Kalalo's allegation
that he acted in self-defense is absolutely unfounded on the ground that, were it true that the
deceased Marcelino Panaligan succeeded in using his revolver, he would have wounded if not the
said appellant, at least the other appellants.

The trial court has acted correctly in not giving credit to the testimony of the appellants Juan and
Felipe Kalalo and Gregorio Ramos that they proceeded to the scene of the crime completely
unarmed, with the exception that one of them had a brush in his hand and the other a plane, after
Marcelino Panaligan and Arcadio Holgado had already expired, which is incredible and improbable
under the circumstances, knowing, as in fact they then knew, that their brother Marcelo Kalalo had
been attacked by armed men. This court cannot help but agree with the decision of the lower court
where it states:

It is improbable that after having been informed that their brother was engaged in a fight,
they went to the scene of the crime, one merely armed with a plane and the other with a
 brush. It is improbable that Felipe Kalalo also went to that place simply to follow Juan Kalalo
and Gregorio Ramos upon seeing them run unarmed in that direction. These improbabilities
of the defenses of the accused, in the face of the positive and clear testimony of the
eyewitnesses pointing to the said accused as the aggressors of the deceased Marcelino
Panaligan and Arcadio Holgado, cannot, of course, prevail against nor detract from the
weight of the evidence of the prosecution, particularly taking into consideration the numerous
wounds of each of the deceased and the positions thereof, which show that the said
deceased were attacked by several persons and that those several persons were the
defendants. Furthermore, the established fact that after the commission of the crime the said
defendants had been in hiding in order to avoid arrest, is corroborative evidence of their guilt.

It certainly is a fact of record that the said three appellants Felipe Kalalo, Juan Kalalo and Gregorio
Ramos were not arrested until after several days, because they had been hiding or, at least,
absenting themselves from their homes.

That the four appellants should all be held liable for the death of the two deceased leaves no room
for doubt. All of them, in going to the land where the killing took place, were actuated by the same
motive which was to get rid of all those who might insist on plowing the land which they believed
belonged to one of them, that is, to Marcelo Kalalo, a fact naturally inferable from the circumstance
that all of them went there fully armed and that they simultaneously acted after they had been
instigated by their mother with the words hereinbefore stated, to wit: "What is detaining you?"

The question now to be decided is whether the appellants are guilty of murder or of simple homicide
in each of cases G.R. No. L-39303 and G.R. No. L-39304. The Attorney-General maintains that they
are guilty of murder in view of the presence of the qualifying circumstance of abuse of superior
strength in the commission of the acts to which the said two cases particularly refer. The trial court
was of the opinion that they are guilty of simple homicide but with the aggravating circumstance of
abuse of superior strength.

It is true that under article 248 of the Revised Penal Code, which defines murder, the circumstance
of "abuse of superior strength", if proven to have been presented, raises homicide to the category of
murder; but this court is of the opinion that said circumstance may not properly be taken into
consideration in the two cases at bar, either as a qualifying or as a generic circumstance, if it is
borne in mind that the deceased were also armed, one of them with a bolo, and the other with a
revolver. The risk was even for the contending parties and their strength was almost balanced
because there is no doubt but that, under circumstances similar to those of the present case, a
revolver is as effective as, if not more than three bolos. For this reason, this court is of the opinion
that the acts established in cases Nos. 6858 and 6859 (G.R. Nos. L-39303 and 39304, respectively),
merely constitute two homicides, with no modifying circumstance to be taken into consideration
because none has been proved.

As to case No. 6860 (G.R. No. 39305), the evidence shows that Marcelo Kalalo fired four successive
shots at Hilarion Holgado while the latter was fleeing from the scene of the crime in order to be out of
reach of the appellants and their companions and save his own life. The fact that the said appellant,
not having contended himself with firing only once, fired said successive shots at Hilarion Holgado,
added to the circumstance that immediately before doing so he and his co-appellants had already
killed Arcadio Holgado and Marcelino Panaligan, cousin and brother-in-law, respectively, of the
former, shows that he was then bent on killing said Hilarion Holgado. He performed everything
necessary on his pat to commit the crime that he determined to commit but he failed by reason of
causes independent of his will, either because of his poor aim or because his intended victim
succeeded in dodging the shots, none of which found its mark. The acts thus committed by the said
appellant Marcelo Kalalo constitute attempted homicide with no modifying circumstance to be taken
into consideration, because none has been established.

Wherefore, the three appealed sentences are hereby modified as follows:

In case No. 6858, or G.R. No. 39303, the court finds that the crime committed by the appellants is
homicide and they hereby sentenced to fourteen years, eight months and one day of reclusion
temporal each, to jointly and severally indemnify the heirs of Marcelino Panaligan in the sum of
P1,000 and to pay the proportionate part of the costs of the proceedings of both instances; and by
virtue of the provisions of Act No. 4103, the minimum of the said penalty of reclusion temporal is
hereby fixed at nine years;

In case No. 6859, or G.R. No. 39304, the court likewise finds that the crime committed by the
appellants is homicide, and they are hereby sentenced to fourteen years, eight months and one day
of reclusion temporal each, to jointly and severally indemnify the heirs of Arcadio Holgado in the sum
of P1,000 and to pay the proportionate part of the costs of both instances; and in conformity with the
provisions of Act No. 4103, the minimum of the penalty of reclusion temporal herein imposed upon
them is hereby fixed at nine years;

In case No. 6860, or G.R. No. 39305, the court finds that the crime committed by the appellant
Marcelo Kalalo is attempted homicide, and he is hereby sentenced to two years, four months and
one day of prision correccional, it being understood that by virtue of the provisions of said Act No.
4103, the minimum of this penalty is six months, and he is furthermore sentenced to pay the costs of
the appeal in this case.

In all other respects, the appealed sentences in the said three cases are hereby affirmed without
prejudice to crediting the appellants therein with one-half of the time during which they have
undergone preventive imprisonment, in accordance with article 29 of the Revised Penal Code. So
ordered.

G.R. No. 79123-25 January 9, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EMELIANO TRINIDAD, accused-appellant.

The Solicitor General for plaintiff-appellee.

Citizens Legal Assistance Office for accused-appellant.

MELENCIO-HERRERA, J.:

On the sole issue that the adduced evidence is insufficient to prove his guilt beyond reasonable
doubt of two crimes of Murder and one of Frustrated Murder with which he has been charged,
accused Emeliano Trinidad appeals from the judgment of the Regional Trial Court, Branch 7,
Bayugan, Agusan del Sur.

From the testimony of the principal witness, Ricardo TAN, the prosecution presents the following
factual version:
The deceased victim, Lolito Soriano, was a fish dealer based in Davao City. His helpers were TAN, a
driver, and the other deceased victim Marcial LAROA. On 19 January 1983, using a Ford Fiera, they
arrived at Butuan City to sell fish. In the morning of 20 January 1983 SORIANO drove the Fiera to
Buenavista, Agusan del Norte, together with LAROA and a helper of one Samuel Comendador. TAN
was left behind in Butuan City to dispose of the fish left at the Langihan market. He followed
SORIANO and LAROA, however, to Buenavista later in the morning.

While at Buenavista, accused Emeliano TRINIDAD, a member of the Integrated National Police,
assigned at Nasipit Police Station, and residing at Baan, Butuan City, asked for a ride to Bayugan,
Agusan del Sur, which is on the way to Davao City. TRINIDAD was in uniform and had two firearms,
a carbine, and the other, a side-arm .38 caliber revolver. SORIANO, LAROA, TAN, and TRINIDAD
then left Butuan on 20 January 1983 at about 5:20 P.M. bound for Davao City. TAN was driving the
Fiera. Seated to his right was SORIANO, LAROA and the accused TRINIDAD, in that order. When
they reached the stretch between El Rio and Afga, TRINIDAD advised them to drive slowly because,
according to him, the place was dangerous. All of a sudden, TAN heard two gunshots. SORIANO
and LAROA slumped dead. TAN did not actually see the shooting of LAROA but he witnessed the
shooting of SORIANO having been alerted by the sound of the first gunfire. Both were hit on the
head. TRINIDAD had used his carbine in killing the two victims.

TAN then hurriedly got off the Fiera, ran towards the direction of Butuan City and hid himself in the
bushes. The Fiera was still running slowly then but after about seven (7) to ten (10) meters it came
to a halt after hitting the muddy side of the road. TAN heard a shot emanating from the Fiera while
he was hiding in the bushes.

After about twenty (20) to thirty (30) minutes, when a passenger jeep passed by, TAN hailed it and
rode on the front seat. After a short interval of time, he noticed that TRINIDAD was seated at the
back. Apparently noticing TAN as well, TRINIDAD ordered him to get out and to approach him
(TRINIDAD) but, instead, TAN moved backward and ran around the jeep followed by TRINIDAD.
When the jeep started to drive away, TAN clung to its side. TRINIDAD fired two shots, one of which
hit TAN on his right thigh. As another passenger jeep passed by, TAN jumped from the first jeep and
ran to the second. However, the passengers in the latter jeep told him to get out not wanting to get
involved in the affray. Pushed out, TAN crawled until a member of the P.C. chanced upon him and
helped him board a bus for Butuan City.

TRINIDAD's defense revolved around denial and alibi. He contended that he was in Cagayan de Oro
City on the date of the incident, 20 January 1983. At that time, he was assigned as a policeman at
Nasipit Police Station, Agusan del Norte. He reported to his post on 19 January 1983 but asked
permission from his Station Commander to be relieved from work the next day, 20 January, as it was
his birthday. He left Baan, his Butuan City residence, at about 3:00 P.M. on 20 January 1983 and
took a bus bound for Cagayan de Oro City. He arrived at Cagayan de Oro at around 8:00 P.M. and
proceeded to his sister's house at Camp Alagar to get his subsistence allowance, as his sister was
working thereat in the Finance Section.

At his sister's house he saw Sgt. Caalim, Mrs. Andoy, one Paelmo, in addition to his sister. Sgt.
Caalim corroborated having seen TRINIDAD then.

Continuing, TRINIDAD claimed that he left Cagayan de Oro for Butuan at lunch time on 21 January
1983 arriving at the latter place around 6:00 P.M., and went to his house directly to get his service
carbine. He was on his way to Nasipit to report for duty on 21 January 1983 when he was arrested at
around 6:00 P.M. at Buenavista, Agusan del Norte.
After joint trial on the merits and unimpressed by the defense by the Trial Court** sentenced the
accused in an "Omnibus Decision", thus:

WHEREFORE PREMISES CONSIDERED, this Court finds Emeliano Trinidad

GUILTY beyond reasonable doubt of the crimes of Murder and Frustrated Murder.

In the Frustrated Murder, there being no mitigating circumstance, and taking into
account the provisions of the Indeterminate Sentence Law, accused Trinidad is
meted out a penalty of:

1) 8 years and 1 day to 12 years of prision mayor medium;

2) to indemnify the complainant the amount of P 5,000.00; and

3) to pay the costs.

Likewise, in the two murder cases, Trinidad is accordingly sentenced:

1) to a penalty of Reclusion Perpetua in each case;

2) to indemnify the heirs of Marcial Laroa and Lolito Soriano the amount of
P30,000.00 each; and

3) to pay the cost. (p. 14, RTC Decision, p. 28, Rollo).

Before us now, TRINIDAD claims that the Trial Court erred in giving full faith and credit to TAN's
testimony who, TRINIDAD alleges, was an unreliable witness. That is not so.

We find no variance in the statement made by TAN before the NAPOLCOM Hearing Officer that
when TRINIDAD boarded the Fiera in Buenavista, he (TAN) was not in the vehicle, and that made in
open Court when he said that he was with TRINIDAD going to Butuan City on board the Fiera. For
the facts disclose that when TRINIDAD boarded the Fiera in Buenavista, TAN was still in Langihan
distributing fish. The Fiera left for Buenavista, driven by SORIANO between 6:00 to 7:00 A.M., while
TAN followed only at 11:00, A.M. in another vehicle. So that when TRINIDAD boarded the Fiera in
Buenavista, TAN was not yet in that vehicle although on the return trip from Butuan City to Davao
City, TAN was already on board. In fact, TAN was the one driving. TAN's testimony clarifying this
point reads:

Q Did you not say in your direct examination that you

went to Buenavista, Agusan del Norte?

A We were in Langihan and since our fishes were not

consumed there, we went to Buenavista.

Q Now, what time did you leave for Buenavista from

Langihan?

A It was more or less at 6:00 to 7:00 o'clock.

Q You were riding the fish car which you said?

 A I was not able to take the fish car in going to
Buenavista because they left me fishes to be
dispatched yet.

Q In other words, you did not go to Buenavista on

January 20, 1983?

A I was able to go to Buenavista after the fishes were

consumed.

Q What time did you go to Buenavista?

A It was more or less from 11:00 o'clock noon.

Q What transportation did you take?

A I just took a ride with another fish car because they

were also going to dispatch fishes in Buenavista.

Q Now, who then went to Buenavista with the fish car

at about 7:00 o'clock in the morning of January 20,
1983?

A Lolito Soriano and Marcia Laroa with his helper.

xxxxxx

Q Now, when this fish car returned to Butuan City

who drove it?

A Lolito Soriano.

Q Were you with the fish car in going back to

Langihan?

A Yes, sir. (T.S.N., December 6, 1985, pp. 53-54).

Felimon Comendador, also a fish vendor, and a resident of Butuan City, testified that he saw
TRINIDAD riding in the Fiera on the front seat in the company of TAN, SORIANO and LAROA, when
the Fiera stopped by his house at Butuan City (TSN, November 5, 1985, pp. 32-33).

The other inconsistencies TRINIDAD makes much of, such as, that TAN was unsure before the
NAPOLCOM Hearing Officer whether TRINIDAD was wearing khaki or fatigue uniform but, in open
Court, he testified positively that TRINIDAD was in khaki uniform; and that while TAN declared that
TRINIDAD was wearing a cap, prosecution witness Felimon Comendador said that he was not but
was in complete fatigue uniform, are actually trivial details that do not affect the positive identification
of TRINIDAD that TAN has made nor detract from the latter's overall credibility.

Nor is there basis for TRINIDAD to contend that the absence of gunpowder burns on the deceased
victims negates TAN's claim that they were shot "point-blank." Actually, this term refers merely to the
"aim directed straight toward a target" (Webster's Third New International Dictionary) and has no
reference to the distance between the gun and the target. And in point of fact, it matters not how far
the assailant was at the time he shot the victims, the crucial factor being whether he did shoot the
victim or not.

TRINIDAD's defense of alibi is inherently weak and cannot prevail over the straightforward and
detailed descriptive narration of TAN, thus:

Q Now, from Butuan City, where did you proceed?

A We proceeded to Davao.

Q Did you in fact reach Davao on that date?

A No, sir.

Q Could you tell the Court why you failed to reach

Davao?

A Because we were held-up.

Q Who held-up you?

A Emeliano Trinidad, sir.

Q Are you referring to accused Emeliano Trinidad

whom you pointed to the court awhile ago?

A Yes, sir.

Q Will you tell the Court how did Emeliano Trinidad

holdup you?

A When we reach between El Rio and Afga, Trinidad

advised us to run slowly because this place is
dangerous. Then suddenly there were two gun bursts.

Q Now, you heard two gun bursts. What happened?

What did you see if there was any?

A I have found out that Lolito Soriano and Marcial

Laroa already fall.

Q Fall dead?

A They were dead because they were hit at the head.

Q You mean to inform the Court that these two died

because of that gun shot bursts?

A Yes, sir.
Q Did you actually see Trinidad shooting the two?

A I did not see that it was really Trinidad who shot

Laroa but since I was already alerted by the first
burst, I have seen that it was Trinidad who shot
Soriano.

Q What was the firearm used?

A Carbine, sir.

xxxxxx

Q Now, after you saw that the two fell dead, what did
you do?

A I got out from the Ford Fiera while it was running.

xxxxxx

Q From the place where you were because you said

you ran, what transpired next?

A I hid myself at the side of the jeep, at the bushes.

Q While hiding yourself at the bushes, what

transpired?

A I heard one gun burst.

Q From what direction was that gun bursts you

heard?

A From the Ford Fiera, sir.

Q After that, what happened?

A At around 20 to 30 minutes, I moved out from the

place where I hid myself because I wanted to go back
to Butuan, Then, I boarded the jeep and sat at the
front seat but I found out that Emeliano Trinidad was
at the back seat.

Q When you found out that Trinidad was at the back,

what happened?

A He ordered me to get out.

Q Now, when you got down, what happened?

A When I got out from the jeep, Trinidad also got out.

Q Tell the Court, what happened after you and

Trinidad got out from the jeep?

A He called me because he wanted me to get near

him.

Q What did you do?

A I moved backward.

'Q Now, what did Trinidad do?

A He followed me.

Q While Trinidad followed you, what happened?

A I ran away around the jeep.

Q Now, while you were running around the jeep, what

happened?

A The driver drove the jeep.

Q Now, after that, what did you do?

A I ran after the jeep and then I was able to take the
jeep at the side of it.

Q How about Trinidad, where was he at that time?

A He also ran, sir.

Q Now, when Trinidad ran after you what happened?

A Trinidad was able to catchup with the jeep and fired

his gun.

Q Were you hit?

A At that time I did not know that I was hit because it

was sudden.

Q When for the first time did you notice that you were
hit?

A At the second jeep.

 Q You mean to inform the Court that the jeep you first
rode is not the very same jeep that you took for the
second time?

A No, sir.

Q Now, when you have notice that you were hit, what
did you do?

A At the first jeep that I took I was hit, so I got out

from it and stood-up at the middle of the road so that I
can catch up the other jeep.' (TSN, December 6,
1985, pp. 44-49)

TAN's testimony remained unshaken even during cross- examination. No ill motive has been
attributed to him to prevaricate the truth. He was in the vehicle where the killing transpired was a
witness to the actual happening, and was a victim himself who managed narrowly to escape death
despite the weaponry with which TRINIDAD was equipped.

The defense is correct, however, in contending that in the Frustrated Murder case, TRINIDAD can
only be convicted of Attempted Murder. TRINIDAD had commenced the commission of the felony
directly by overt acts but was unable to perform all the acts of execution which would have produced
it by reason of causes other than his spontaneous desistance, such as, that the jeep to which TAN
was clinging was in motion, and there was a spare tire which shielded the other parts of his body.
Moreover, the wound on his thigh was not fatal and the doctrinal rule is that where the wound
inflicted on the victim is not sufficient to cause his death, the crime is only Attempted Murder, the
accused not having performed all the acts of execution that would have brought about death (People
vs. Phones, L-32754-5, July 21, 1978, 84 SCRA 167; People vs. Garcia, L-40106, March 13, 1980,
96 SCRA 497).

But while the circumstances do spell out the two crimes of Murder, the penalty will have to be
modified. For, with the abolition of capital punishment in the 1987 Constitution, the penalty for
Murder is now reclusion temporal in its maximum period to reclusion perpetua (People vs. Lopez, et
al. G.R. No. 71876-76, January 25, 1988 citing People vs. Gavarra, No. L-37673, October 30, 1987;
People vs. Masangkay, G.R. No. 73461, October 27, 1987). With no attending mitigating or
aggravating circumstance, said penalty is imposable in its medium period or from eighteen (18)
years, eight (8) months and one (1) day to twenty (20) years. The penalty next lower in degree for
purposes of the Indeterminate Sentence Law is prision mayor, maximum, to reclusion temporal,
medium, or from ten (10) years and one (1) day to seventeen (17) years and four (4) months (Article
61, parag. 3, Revised Penal Code).

WHEREFORE, the guilt of the accused Emeliano Trinidad for the crimes of Murder (on two counts)
and Attempted Murder, having been proven beyond reasonable doubt, his conviction is hereby
AFFIRMED and he is hereby sentenced as follows:

1) In each of Criminal Cases Nos. 79123-24 (Nos. 96 and 99 below) for Murder, he
shall suffer the indeterminate penalty of ten (10) years and one (1) day of prision
mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day of
reclusion temporal, as maximum; to indemnify the heirs of Marcial Laroa and Lolito
Soriano, respectively, in the amount of P30,000.00 each; and to pay the costs.
 2) In Criminal Case No. 79125 (No. 100 below) for Frustrated Murder, he is hereby
found guilty only of Attempted Murder and sentenced to an indeterminate penalty of
six (6) months and one (1) day of prision correccional, as minimum, to six (6) years
and one (1) day of prision mayor, as maximum; to indemnify Ricardo Tan in the sum
of P5,000,00; and to pay the costs.

SO ORDERED.

G.R. No. 168827 April 13, 2007

BENJAMIN P. MARTINEZ, Petitioner,

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

DECISION

CALLEJO, SR., J.:

This is a Petition for Review on Certiorari of the Decision1 and the Resolution2 of the Court of
Appeals (CA) in CA-G.R. CR No. 25436, affirming with modification the trial court’s judgment finding
Benjamin P. Martinez guilty beyond reasonable doubt of frustrated homicide.

The Antecedents

Dean Dongui-is was a teacher at the Tubao National High School, La Union. Petitioner Benjamin
Martinez was the husband of Dean’s co-teacher, Lilibeth Martinez. Petitioner eked out a living as a
tricycle driver.

On October 28, 1998, Dean and his wife Freda filed a complaint for damages against the spouses
Martinez in the Municipal Circuit Trial Court (MCTC) of Tubao, La Union. They alleged that in March
1998, petitioner, a suitor of Elvisa Basallo, had been peddling false reports that Dean and Elvisa had
illicit relations; he even told Freda that Elvisa was Dean’s mistress. This led to a quarrel between
Dean and Freda, and the latter was hospitalized for her heart ailment. Dean requested Lilibeth to
stop her husband from spreading lies, and she replied that Elvisa had been her husband’s mistress.
They prayed that they be awarded moral and exemplary damages and litigation fees in the total
amount of ₱100,000.00.3 The case was docketed as Civil Case No. 226.

For her part, Elvisa also filed a complaint against the spouses Martinez in the MCTC of Tubao for
damages anchored on Article 26 of the New Civil Code. She alleged that on several occasions,
petitioner went to the Shaltene Pawnshop and Pharmacy where she was employed and accused her
of having an illicit affair with Dean; on one occasion, he held her hand and forcibly pulled her
outside, which caused her to scratch his face and run after him with a knife; he also told her
husband’s cousin, Willy Ordanza, that she had an illicit affair with Dean; Willy, in turn, told her
mother-in-law about it; petitioner relayed the same rumors to her co-worker, Melba Dacanay, and his
wife spread to people in the Municipality, including Ramil Basallo, her brother-in-law. Elvisa also
prayed for damages in the total amount of ₱100,000.00. The case was docketed as Civil Case No.
227.4

The spouses Martinez filed a motion to dismiss the complaint in Civil Case No. 226 which was heard
in the morning of February 3, 1999. The court denied the motion.
At about 1:40 p.m. that day, Dean went to the Tubao Credit Cooperative (TCC) office to pick up the
dividend certificate of his wife who was a member of the cooperative. He left the building and walked
to his car which was parked in front. As he did, he read the dividend certificate of his wife. Dean was
about a step away from an L-300 van which was parked in front of the building when petitioner,
armed with a bolo, suddenly emerged from behind the vehicle and stabbed him on the left breast.
Dean instantly moved backward and saw his assailant. Dean fled to the bank office and was able to
gain entry into the bank. Petitioner ran after him and upon cornering him, tried to stab him again.
Dean was able to parry the blow with his right hand, and the bolo hit him on the right elbow. Dean
fell to the floor and tried to stand up, but petitioner stabbed him anew on his left breast. 5 Dean
managed to run to the counter which was partitioned by a glass. Unable to get inside the counter,
petitioner shouted at Dean: "Agparentomeng ka tatta ta talaga nga patayen ka tatta nga aldawen
(You kneel down because I will really kill you now this day)."6

Meantime, SPO1 Henry Sulatre was at the Tubao Police Station, about 100 meters away. He was
informed that a fight was going on in the bank. He rushed to the place on board the police car. When
he arrived at the scene, he saw Barangay Captain Rodolfo Oller and his son Nicky Oller. 7 Nicky
handed to him the bolo which petitioner had used to stab Dean.8 He and Rodolfo brought petitioner
to the police station. On the way, they passed by the loading area of tricycles, about 40 meters away
from the police station. Petitioner shouted: "Sinaksak kon pare, sangsangaili laeng isuna saan isuna
to agari ditoy Tubao (I stabbed him, he is just a visitor so he should not act like a king here in
Tubao)." SPO1 Sulatre placed Benjamin in jail. Benjamin kept on shouting: "Napatay kon, napatay
kon (I killed him, I killed him)."9

In the meantime, PO3 Valenzuela brought Dean to the Doña Gregoria Memorial Hospital in Agoo, La
Union. The victim was transferred to the Ilocos Regional Hospital (IRH) in San Fernando, La Union
where Dean was examined and operated on by Dr. Nathaniel Rimando, with the assistance of Dr.
Darius Pariñas.10 Dean sustained two stab wounds in the anterior chest, left, and a lacerated wound
in the right elbow, forearm. Had it not been for the blood clot that formed in the stab wound on the
left ventricle that prevented the heart from bleeding excessively, Dean would have died from profuse
bleeding.11

On February 7, 1999, Dean gave a sworn statement to SPO1 Sulatre.12 However, he deferred
swearing to the truth of his statement before the Public Prosecution because SPO1 Sulatre was
waiting for the permanent medical certificate to be issued by the hospital. SPO1 Sulatre deferred the
execution and submission of an arrest report also pending the issuance of the medical certificate.

Instead of issuing a permanent medical certificate, the IRH issued on February 8, 1999 the following
Temporary Certificate:

TO WHOM IT MAY CONCERN:

According to hospital record, DEAN N. DONGUI-IS, 30 years old, male, married, a resident of
Francia West, Tubao, La Union, was examined/treated/confined in this hospital on/from February 3-
20, 1999.

WITH THE FOLLOWING FINDINGS AND DIAGNOSIS:

– Stab Wound (L) Chest with Hemothorax (L), (L) Ventricular Perforation;

OPERATIONS:
– Exploratory Thoracotomy (L); Evacuation of Retained Blood Clots; Ventriculorrhaphy Decortication
2/11/99

and would need medical attendance for more than thirty (30) days barring complications. 13

On March 10, 1999, SPO1 Sulatre filed a criminal complaint for frustrated murder against petitioner
in the MCTC.14 The MCTC opted not to act on the crime pending the arrest report and SPO1
Sulatre’s submission of Dean’s sworn statement.

The IRH issued a medical certificate on February 28, 1999, stating that Dean’s wounds would need
medical attendance of more than 30 days.15 Barangay Captain Oller and SPO1 Sulatre executed an
affidavit on petitioner’s arrest.16 Dean had his affidavit sworn before the Public Prosecutor on March
30, 1999.

On September 13, 2000 the Provincial Prosecutor of La Union indicted Benjamin for frustrated
murder before the Regional Trial Court (RTC), Branch 31, of the same province. The accusatory
portion of the Information reads:

That on or about the 3rd day of February 1999, in the Municipality of Tubao, Province of La Union,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent
to kill, and with treachery and evident premeditation, being then armed with a small pointed bolo, did
then and there willfully, unlawfully and feloniously attack, assault and stab one DEAN DONGUI-IS y
Manalo, hitting him on his left breast and right elbow, and thereby inflicting on him injuries that would
have produced the crime of Murder as a consequence but which nevertheless, did not produce it by
reason of causes independent of the will of the accused, mainly the timely rendition of medical
assistance of on the said offended party, which prevented his death, to his damage and prejudice.

CONTRARY TO LAW.17

On October 13, 2000, the accused, assisted by counsel, was arraigned and entered a plea of not
guilty.

The Case for Petitioner

Petitioner declared that he merely defended himself against Dean’s assault. Dean was so jealous of
him because his mistress, Elvisa, had also been his mistress. Unknown to Dean, he had already
terminated his relation with Elvisa sometime in March 1997 when his wife Lilibeth discovered the
illicit relationship.18 Dean also suspected that he (petitioner) had been sending letters to his (Dean’s)
wife relative to the illicit relationship with Elvisa. Dean also suspected that he was responsible for the
raid conducted by the Criminal Investigation Service (CIS) of his house for possession of a gun. 19 As
a result, Dean filed a civil complaint against him for damages, docketed as Civil Case No. 266.
Before and after the filing of the civil case, Dean had hurled invectives at him in the presence of
Joselito Madriaga and other tricycle drivers.20 Dean even attempted to sideswipe him with his car.21

Petitioner declared that the criminal charge against him was Dean’s concoction, and intended solely
to harass him. He narrated that he went to the TCC office at about 1:30 p.m. on February 3, 1999.
His wife had earlier received a note from the cooperative to get the interest on her deposit. 22 He
parked his tricycle in front of the building on the left side of the railing going to the entrance of the
cooperative.23 Dean’s car was parked on the right side of the railing.24 On his way, he met his 82-
year-old uncle, Godofredo Sarmiento, who was also on his way to the cooperative to update his
passbook because he was intending to apply for a loan.25 He told Godofredo that they could go to
the TCC together. When they were about to pass through the entrance door, Dean was about to exit
from the cooperative. Dean thought that he was blocking his way and shouted invectives at him and
his uncle; Dean also spat on his breast and face; and threw a punch which he was able to parry with
his left elbow.26 Dean kept attacking him, forcing him to move backward through the railing and
towards his tricycle. Dean punched him again but he managed to parry the blow with his bolo which
he took from his tricycle. He stabbed Dean on his right elbow. 27 He swung his bolo at Dean which
forced the latter to run back into the office. He entered the office and stood by the entrance door to
see if Dean would get a weapon. Dean continued hurling invectives at him but was later pacified by
Patricio Alterado, an employee of the cooperative.28 When Barangay Captain Oller arrived, he
surrendered, along with his bolo.29 He never boasted on the way to the police station that he had
killed Dean.30

Godofredo partially corroborated the testimony of petitioner. He declared that Dean spat on the face
of petitioner.31By the time Dean and petitioner reached the place where the latter’s tricycle was
parked, he had left; he was afraid of being involved.32 He did not report the incident to the police
authorities.

Joselito Madriaga testified that he and petitioner were bosom buddies with a long history of
friendship. Dean had an axe to grind against petitioner because the two maintained a common
mistress, Elvisa.33

The Trial Court’s Decision

On April 30, 2001, the trial court rendered judgment34 convicting petitioner of frustrated homicide.
The fallo of the decision reads –

WHEREFORE, this Court, after a consideration of the evidence adduced in this case, finds accused
BENJAMIN MARTINEZ guilty of the crime of Frustrated Homicide as principal. Neither aggravating
circumstance nor mitigating circumstance has been appreciated. Applying the Indeterminate
Sentence Law, accused Benjamin Martinez is sentenced to suffer the penalty of imprisonment
ranging from FOUR (4) YEARS OF PRISION CORRECTIONAL MEDIUM as minimum to EIGHT (8)
YEARS and ONE (1) DAY OF PRISION MAYOR MEDIUM as maximum. He is also ordered to pay
DEAN DONGUI-IS the amount of ONE HUNDRED FIFTY THOUSAND (₱150,000.00) PESOS,
broken into the following:

(a) Ninety-Two Thousand (₱92,000.00) Pesos for medical expenses;

(b) Twenty-Six Thousand (₱26,000.00) Pesos, representing his salaries for two (2) months
when he could not attend to teach due to his injuries;

(c) Twenty-Two Thousand (₱22,000.00) Pesos as moral damages; and

(d) Ten Thousand (₱10,000.00) Pesos as complainant’s attorney’s fees.

SO ORDERED.35

The trial court gave credence and full probative weight to the testimony of Dean, Dr. Rimando, SPO1
Sulatre, and the documentary evidence of the prosecution. The court rejected petitioner’s twin
defenses of denial and self-defense. It declared that his version lacked strong corroboration, and
that his witnesses (a close relative and a friend) were biased.
Finding that the prosecution failed to prove the qualifying circumstances of treachery, the trial court
convicted petitioner of frustrated homicide. The court declared that the crime involved a "love
triangle,"36 and considered the protagonists’ history of personal animosity. There was no evident
premeditation because Dean had been "forewarned" of the attack.37

On appeal before the CA, petitioner raised the following issues:

I. THE TRIAL COURT COMMITTED SERIOUS ERRORS WHEN IT WRONGFULLY GAVE

CREDENCE TO THE FABRICATED CLAIMS OF THE SOLE WITNESS FOR THE PROSECUTION.

II. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT WRONGFULLY GAVE
CREDENCE TO THE FALSE AND SPECIOUS TESTIMONY OF THE COMPLAINANT.

III. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT CONVICTED THE ACCUSED
FOR FRUSTRATED HOMICIDE FOR INJURIES NOT ATTESTED BY ANY COMPETENT
MEDICAL CERTIFICATE.

IV. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT CONVICTED THE ACCUSED
FOR FRUSTRATED HOMICIDE WITHOUT ANY PROOF BEYOND REASONABLE DOUBT.

V. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT DISREGARDED THE

CONCLUSIVE EVIDENCE FOR THE DEFENSE WHICH COMPLETELY NEGATED ANY PROOF
FOR THE PROSECUTION AND WHICH DEFINITELY WARRANTED THE ACQUITTAL OF THE
ACCUSED.38

Maintaining his innocence, petitioner claimed that he had merely acted in self-defense when Dean
insulted him, spat on his face and assaulted him with fist blows on a mere suspicion that he
(petitioner) was blocking Dean’s way through the exit door of the cooperative.

The Decision of the Court of Appeals

On February 21, 2005, the CA rendered judgment affirming the assailed decision of the RTC with
modification. The fallo reads –

WHEREFORE, the appealed Decision dated April 30, 2001 of the trial court is affirmed, subject to
the afforested modification of the minimum period of the sentence. Loss of earnings in the amount of
₱26,000.00 and attorney’s fees in the amount of ₱10,000.00 are deleted, and the award of actual
damages is increased to ₱92,715.68.

SO ORDERED.39

The CA ruled that the case is more of a "retaliation" rather than a case of self-defense. It declared
that Dean sustained two fatal stab wounds in his left chest, a fact which belied petitioner’s defense
and confirmed the prosecution’s theory that he purposely and vigorously attacked the victim. The CA
ruled that when an unlawful aggression which has begun no longer exists, the one making the
defense has no more right to kill or even wound the aggressor. The appellate court pointed out that
in the case before it, the supposed unlawful aggression of Dean ceased from the moment he
retreated inside the cooperative building; there was no need for petitioner to follow Dean inside the
building and stab him with his bolo. Petitioner should have simply stood his ground and walked
away.
In discounting the qualifying circumstances of treachery and evident premeditation, the CA simply
adverted to the stipulation of facts contained in the Pre-Trial Order dated December 20, 2000 issued
by the RTC, stating "[t]hat the accused stabbed the private complainant when the latter assaulted
and boxed him (accused)."40 Petitioner’s plea of voluntary surrender was not appreciated in his favor.
However, the appellate court modified the minimum sentence imposed by the trial court to four (4)
years and two (2) months of prision correctional, as minimum.

As to damages, the CA deleted the RTC’s award of loss of earning capacity and attorney fees,
holding that they lack factual and legal basis. It, however, increased the award of actual damages
from ₱92,000.00 to ₱92,715.68 reasoning that latter amount was duly receipted. The CA denied the
appellant’s motion for reconsideration.41

Before this Court, petitioner assigns the following errors allegedly committed by the CA –

I. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THEY AROSE
FROM MISAPPREHENSION OF FACTS THAT PROVE THAT THE PROCEEDINGS AND THE
FINDINGS MADE IN THE DECISION OF THE TRIAL COURT AS WELL AS IN THE ASSAILED
DECISION ITSELF, WERE BASED ON A FALSE CHARGE WHICH IS PATENTLY FABRICATED
BY A POLICE INVESTIGATOR AND WHICH COMPRISES MALICIOUS PROSECUTION.

II. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THEY ARE
BASED ON THE FABRICATED STATEMENT AS WELL AS ON THE SOLE, SELF-SERVING,
CONTRADICTORY AND UNCORROBORATED TESTIMONY OF THE COMPLAINANT, WHICH
ARE MANIFESTLY CONCOCTED AND CANNOT ESTABLISH THE GUILT OF THE ACCUSED
BEYOND REASONABLE DOUBT.

III. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SE[T] ASIDE, AS THERE IS
TOTAL ABSENCE OF EVIDENCE TO PROVE THE VACUOS CHARGE AS WELL AS THE SAID
DECISION AND RESOLUTION, FOR WHICH REASON THE GUILT OF THE ACCUSED WAS NOT
DULY PROVED BEYOND REASONABLE DOUBT[.]

IV. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THE SAME
WERE RENDERED IN ALL GRAVE ABUSE OF DISCRETION AND IN TOTAL DISREGARD OF
THE COMPETENT AND UNREBUTTED TESTIMONY FOR THE DEFENSE, WHICH NEGATE ANY
REASONABLE DOUBT ON THE GUILT OF THE ACCUSED.

V. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET ASIDE, AS THE

INFERENCES MADE ON THE UNDISPUTED FACTS ARE CONTRARY TO LAW AND
JURISPRUDENCE AND CANNOT JUSTIFY ANY FINDING OF ANY PROOF BEYOND
REASONABLE DOUBT.42

Petitioner insists that the criminal complaint filed by SPO1 Sulatre was a fabrication because the
latter never conducted a formal investigation of the stabbing incident or of any witness to the
incident. The police officer filed the criminal complaint against petitioner on the basis of a sworn
statement by Dean which was taken only on March 10, 1999, long after the criminal complaint was
filed in the MCTC. Worse, when he testified on cross-examination, Dean admitted that he did not
see the questions prepared by SPO1 Sulatre at the hospital, nor his answers to the policeman’s
questions. The affidavit dated March 10, 1999 was not typewritten in the hospital, and he was not
present when the affidavit was typewritten in the police station. Thus, the testimony of the victim was
self-serving and uncorroborated, tailored solely to support the charge filed by SPO1 Sulatre.
In its comment on the petition, respondent, through the Office of the Solicitor General (OSG), avers
that the issues raised by petitioner are factual, hence, inappropriate in a petition for review on
certiorari in this Court.

The OSG maintains that the Revised Rules of Criminal Procedure does not require that the affidavit
of the offended party or the witnesses to the crime charged be appended to the criminal complaint
filed in court. Moreover, the issue of the validity of the criminal complaint in the MCTC had became
moot and academic after the Information was filed in the trial court, and when petitioner was
arraigned, assisted by counsel, and entered a plea of not guilty.

It insists that Dean’s testimony, by itself, is sufficient to warrant the conviction of petitioner for
frustrated homicide. Petitioner’s conviction may be anchored on Dean’s testimony since the trial
court found it credible and entitled to full probative weight. Petitioner failed to prove his plea of self-
defense by clear and convincing evidence.

The Court’s Decision

The petition is denied for lack of merit.

Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal Procedure 43 provide:

Sec. 3. Procedure. – The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well as other supporting documents to
establish probable cause. They shall be in such number of copies as there are respondents,
plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before
any prosecutor or government official authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of whom must certify that he personally examined
the affiants and that he is satisfied that they voluntarily executed and understood their
affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either
dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint and its supporting affidavits and
documents.

It bears stressing that the officer conducting the preliminary investigation has to determine whether
to dismiss the complaint outright based on the averments of the complaint and the appendages
thereof if it finds no ground to continue with the investigation. If he finds ground to continue with the
investigation of the accused, a subpoena should be issued to the accused, appending thereto a copy
of the complaint and the supporting affidavits. Unless the affidavits of the witnesses named in the
complaint and supporting documents are appended to the complaint, the investigating officer may
not be able to determine whether to dismiss the complaint outright or to conduct an investigation and
issue a subpoena to the accused.44

We agree with petitioner that the criminal complaint filed by SPO1 Sulatre with the MCTC on March
10, 1999 was defective. As gleaned from the RTC records, the criminal complaint was not
accompanied by any medical certificate showing the nature and number of wounds sustained by the
victim, the affidavits of any of the witnesses listed at the bottom of the criminal complaint (particularly
the victim himself), and the arrest report of SPO1 Sulatre, Brgy. Capt. Rodolfo Oller, and his son
Nicky.
The MCTC had the option not to act one way or the other on the criminal complaint of SPO1 Sulatre
because the latter failed to comply with Section 3(a) and (b), Rule 112 of the Revised Rules of
Criminal Procedure; or to order SPO1 Sulatre to comply with the aforequoted rule; or to dismiss the
complaint without prejudice to its refiling with the requisite documents. However, the MCTC opted
not to act on the complaint until after SPO1 Sulatre shall have submitted the requisite
affidavits/medical certificate/arrest report. When SPO1 Sulatre filed with the MCTC, on March 10,
1999, the permanent medical certificate issued by the IRH, the affidavit of Dean and his and Brgy.
Capt. Oller’s affidavit of arrest of petitioner, the MCTC forthwith issued a subpoena to petitioner
appending thereto the said medical certificate, affidavit of Dean and the affidavit of arrest of SPO1
Sulatre.45 Hence, SPO1 Sulatre had complied with Section 3(a) and (b), Rule 112 of the Revised
Rules of Criminal Procedure.

Moreover, petitioner submitted his counter-affidavit without any protest. Neither did he assail the
validity of the criminal complaint or the tardy submission by SPO1 Sulatre of the medical certificate,
the affidavit of Dean and the affidavit of arrest of SPO1 Sulatre. Aside from this, petitioner was
arraigned in the RTC, assisted by counsel, and entered a plea of not guilty.

On the second issue, the rulings of the trial court and the appellate court are correct. Whether or not
petitioner acted in self-defense whether complete or incomplete is a question of fact, 46 the well-
entrenched rule is that findings of fact of the trial court in the ascertainment of the credibility of
witnesses and the probative weight of the evidence on record affirmed, on appeal, by the CA are
accorded high respect, if not conclusive effect, by the Court and in the absence of any justifiable
reason to deviate from the said findings.47

In this case, the trial court gave no credence and probative weight to the evidence of petitioner to
prove that he acted in self-defense, complete or incomplete. Petitioner failed to establish that the trial
court and the appellate court misconstrued, misappropriated or ignored facts and circumstances of
substance which, if considered, would warrant a modification or reversal of the decision of the CA
that petitioner failed to establish clear and convincing evidence that he acted in self-defense,
complete or incomplete.

Like alibi, petitioner’s claim of self-defense is weak; it is also settled that self-defense is easy to
fabricate and difficult to disprove. Such a plea is both a confession and avoidance. 48 One who
invokes self-defense, complete or incomplete, thereby admits having killed the victim by inflicting
injuries on him. The burden of evidence is shifted on the accused to prove the confluence of the
essential elements for the defense as provided in Article 11, paragraph 1 of the Revised Penal
Code:

x x x (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it;
and (3) lack of sufficient provocation on the part of the person defending himself. x x x 49

The accused must rely on the strength of his own evidence and not on the weakness of that of the
prosecution because even if the evidence of the prosecution is weak, the same can no longer be
disbelieved.50 The accused cannot escape conviction if he fails to prove the essential elements of
complete self-defense.

In Garcia v. People,51 the Court defined unlawful aggression:

x x x Unlawful aggression presupposes an actual, sudden and unexpected or imminent danger on

the life and limb of a person – a mere threatening or intimidating attitude is not sufficient. There must
be actual physical force or a threat to inflict physical injury. In case of a threat, it must be offensive
and positively strong so as to display a real, not imagined, intent to cause injury. Aggression, if not
continuous, does not constitute, aggression warranting self-defense.52

Aggression, if not continuous, does not constitute aggression warranting self-defense.53 When
unlawful aggression ceases, the defender no longer has any justification to kill or wound the original
aggressor. The assailant is no longer acting in self-defense but in retaliation against the original
aggressor.54

There can be no self-defense, complete or incomplete, unless the accused proves unlawful
aggression on the part of the victim.55 Unlawful aggression is a sudden and unexpected attack or an
imminent danger thereof, and not merely a threatening or an intimidating attitude. 56

Petitioner failed to discharge his burden.

First. Petitioner failed to surrender himself to the responding authorities who arrived at the
situs criminis, as well as the bolo he used in stabbing the victim. One who acted in self-
defense is expected to surrender, not only himself, but also the weapon he used to kill or
inflict physical injuries on the victim.57

Second. The victim sustained three stab wounds on different parts of his body. Two were
fatal stab wounds at his left chest. The presence of a large number of wounds on the part of
the victim, their nature and location disprove self-defense and instead indicate a determined
effort to kill the victim.58

Third. Petitioner testified that he was punched by the victim. However, there is not a scintilla
of evidence to show that petitioner suffered even a scratch as a result of the alleged fist
blows.

Neither can the RTC nor the CA be faulted for giving credence to the testimony of SPO1 Salutre. No
evidence was adduced by the defense to show that he harbored any ill-motive against petitioner to
charge him with such a crime. Absent any proof of improper motive, the prosecution witness who is
law enforcer is presumed to have regularly performed his duty in arresting and charging
petitioner.59 His testimony is thus entitled to full faith and credit. Moreover, the conviction of petitioner
was not based solely on the testimony of the SPO1 Salutre. The unimpeached testimony of Dean
categorically established the crime; this was corroborated by the testimony of Dr. Nathaniel
Rimando.

Petitioner’s argument that he should be acquitted because the criminal complaint against him was
not supported by the victim’s sworn statement or by an affidavit of any witness is totally untenable.
This issue should have been raised during the preliminary investigation. It is much too late in the day
to complain about this issue after a judgment of conviction has been rendered against him.

Contrary to petitioner’s stance, the testimonies of his corroborating witnesses are unimpressive. For
one, Godofredo’s testimony was limited only to the alleged fact that happened outside of the
cooperative building. He himself admitted that when the protagonists started fighting each other, for
fear for his life, he hurriedly flagged and boarded a tricycle which revved up to the highway; it was
from there that he saw petitioner slumped on his tricycle. In other words, he did not witness what
transpired thereafter or how the fight ended.

Joselito’s testimony did not fare any better. It was given neither credence nor weight by the trial
court. And even if it had been proved that the victim was rabid against petitioner, such evidence
would only have established a probability that he had indeed started an unlawful assault on
petitioner. This probability cannot, however, overcome the victim’s positive statement that petitioner
waylaid and assaulted him without any provocation. The theory that Dean may have started the fight
since he had a score to settle against petitioner is flimsy, at best. Furthermore, Joselito admitted that
he was petitioner’s best friend; hence, his bias cannot be discounted.

The Crime Committed by the Petitioner

Petitioner next argues that should he be convicted of any crime, it should be of less serious physical
injuries only, absence the element of intent to kill. He advances the argument that the single wound
suffered by the victim was not life threatening and that the latter was transferred to undergo
operation in another hospital only because the medical staff where he was first rushed bungled their
job. He makes much of the fact that Dr. Darius R. Pariñas who issued the Medical Certificate never
testified for the prosecution.

Again, the Court is not swayed. 1a\^/ phi1. net

If one inflicts physical injuries on another but the latter survives, the crime committed is either
consummated physical injuries, if the offender had no intention to kill the victim or frustrated or
attempted homicide or frustrated murder or attempted murder if the offender intends to kill the victim.
Intent to kill may be proved by evidence of the following: (a) motive; (b) the nature or number of
weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on the
victim; (d) the manner the crime was committed; and (e) words uttered by the offender at the time
the injuries are inflicted by him on the victim.60

Petitioner insists that he had no intent to kill Dean. However, the physical evidence belies petitioner’s
pose.

To begin with, as between petitioner and the victim, the former had more hatred to harbor arising
from the fact that the victim filed a lawsuit against him and his wife. Petitioner thus had more motive
to do harm than the victim. By his own account, he and Dean had a history of personal animosity.

Secondly, petitioner was armed with a deadly 14½-inch bolo.

Thirdly, if it were true that petitioner stabbed Dean merely to defend himself, it defies reason why he
had to stab the victim three times. Petitioner’s claim that Dean suffered only a single non-life
threatening wound is misleading. Dr. Rimando, who attended to and operated on Dean, testified that
the victim sustained three (3) stab wounds, two (2) of which penetrated his heart and lung, causing
massive blood clotting necessitating operation; the other lacerated Dean’s his right elbow. The
presence of these wounds, their location and their seriousness would not only negate self-defense;
they likewise indicate a determined effort to kill.61 Moreover, physical evidence is evidence of the
highest order. It speaks more eloquently than a hundred witnesses.62

Neither does the non-presentation of Dr. Darius R. Pariñas, the doctor who signed the medical
certificate, would dent a bit the evidence for the prosecution. This is so because Dr. Pariñas, who
assisted Dr. Rimaldo during the operation of Dean, would merely corroborate Dr. Rimaldo’s
testimony. As such, his testimony is not indispensable.

Fourthly, from the manner the crime was committed, there can hardly be any doubt that intent to kill
was present. It has been clearly established that petitioner ambushed Dean and struck him with a
bolo. Dean was defenseless and unarmed, while petitioner was deadly armed. 1ªvvphi1. nét
Lastly, the words of the petitioner while he was assaulting Dean were most revealing:

Atty. Atitiw:

Q : When you were in the counter, what was accused Benjamin doing?

A : When I was inside the counter and he’s outside and between us is a glass and there he
shouting at me telling in Ilocano that AGPARENTONG KA TATTA TA TALAGA NGA
PATAYEN KA TATTA NGA ALDAWEN "You kneel down because I will really kill you now." 63

xxxx

Atty. Atitiw:

Q : While passing through the loading area of the tricycle, do you remember anything that
transpired there at the loading area?

A : Yes, Sir.

Q : What is that, Mr. Witness?

A : While Benjamin Martinez, Barangay Captain Oller and I were walking proceeding to our
Police Station and when we were near the area, at the loading area if the tricycle, Benjamin
Martinez shouted and I quote: "SINAKSAK KON PARE, SANGSANGAILI LAENG ISUNA
SAAN NGA ISUNA TI AGARI DITOY TUBAO," that was the utterance, Sir.64

xxxx

Q : After bringing him to the Police Station, what did you do next?

A : We put him in jail, Sir.

Q : And while in jail do you remember whether accused Benjamin Martinez did anything
while in jail?

A : Yes, Sir.

Q : What is that, Mr. Witness?

A : He kept on shouting words, Sir.

Q : What are those words if you can remember?

A : He kept on shouting "NAPATAY KON, NAPATAY KON," Sir.65

Anent the allegation of negligence on the part of the medical staff of Doña Gregoria Memorial
Hospital where Dean was rushed, suffice it to say that this is a new theory being foisted by
petitioner. It was never raised in the two courts below and thus it will not be entertained here. At any
rate, this allegation finds no support in the records of the case.
It cannot be denied that petitioner had the intention to kill Dean. Petitioner performed all the acts of
execution but the crime was not consummated because of the timely medical intervention applied on
the victim.

An appeal in a criminal case opens the entire case for review on any question including one not
raised by the parties.66 In this regard, we find ample evidence to establish treachery. The CA’s
advertence to the stipulation of facts contained in the Pre-Trial Order dated December 20, 200067 is
misplaced. This alleged stipulation was stricken off the record on motion of the prosecution on the
ground that no stipulation of such fact was made.68

There is treachery when the offender commits any of the crimes against the person, employing
means, methods, or forms in the execution thereof which tend directly and specially to insure its
execution without risk to himself arising from the defense which the offended party might take. 69

In the present case, the prosecution had met the requisites for alevosia to be appreciated: (1) at the
time of the attack the victim was not in a position to defend himself; and (2) that the offender
consciously adopted the particular means, method, or form of the attack employed by him. 70 Dean
lived to tell about the swiftness of the attempt against his life:

Q : After getting the dividend certificate where did you proceed next?

A : I went out from the bank, sir. I was able to go to school.

Q : Where you able to go to the school?

A : No, Sir.

Q : Why were you not able to reach the school?

A : Because I was suddenly stabbed by Benjamin Martinez.

Q : Where did Benjamin Martinez stab you?

A : In front of the bank, Sir.

Q : And how did Benjamin Martinez stab you?

A : I was about to go to my car, Sir. I was reading the dividend certificate that I got from the
bank but when I was about one step away from the back of the L300 van that was parked in
front of the bank, I was suddenly stabbed by him.

Q : Where was Benjamin Martinez at that time when he was stabbed you?

A : Probably he was hiding at the back of the L300 van, Sir.71

When Dean was attacked he was unarmed. He had just exited the cooperative building and had no
inkling that he would be waylaid as he made his way towards his car. Upon the other hand, petitioner
was armed with a deadly 14½-inch bolo. The attacked on Dean was swift and unannounced;
undeniably, petitioner’s attack was treacherous.
Petitioner is guilty of frustrated murder under Article 248 in relation to Article 6, first paragraph of the
Revised Penal Code which reads:

A felony is consummated when all the elements necessary for its execution and accomplishment are
present; and it is frustrated when the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.

The essential elements of a frustrated felony are as follows:

1. The offender performs all the acts of execution;

2. All the acts performed would produce the felony as a consequence;

3. But the felony is not produced;

4. By reason of causes independent of the will of the perpetrator.72

A crime is frustrated when the offender has performed all the acts of execution which should result in
the consummation of the crime. The offender has passed the subjective phase in the commission of
the crime. Subjectively, the crime is complete. Nothing interrupted the offender while passing
through the subjective phase. He did all that is necessary to consummate the crime. However, the
crime was not consummated by reason of the intervention of causes independent of the will of the
offender. In homicide cases, the offender is said to have performed all the acts of execution if the
wound inflicted on the victim is mortal and could cause the death of the victim barring medical
intervention or attendance.73

The penalty for frustrated murder is one degree lower than reclusion perpetua to death, which is
reclusion temporal.74 The latter penalty has a range of 12 years and 1 day to 20 years. Applying the
Indeterminate Sentence Law, the maximum of the indeterminate penalty should be taken from
reclusion temporal, the penalty for the crime, taking into account any modifying circumstances in its
commission. The minimum of the indeterminate penalty shall be taken from the full range of prision
mayor which is one degree lower than reclusion temporal. Since there is no modifying circumstance
in the commission of frustrated murder, the appellants should be meted an indeterminate penalty of
from nine (9) years and four (4) months of prision mayor in its medium period as minimum, to
seventeen (17) years and four (4) months of reclusion temporal in its medium period, as maximum.

Petitioner, likewise, insists that he voluntarily surrendered to Barangay Captain Rodolfo Oller. He
faults the trial and appellate courts for relying on the prosecution’s Affidavit of Arrest, arguing that the
same is inadmissible as hearsay, the affiants not having testified to affirm their declarations.

For voluntary surrender to be appreciated, the following requisites should be present: (1) the
offender has not been actually arrested; (2) the offender surrendered himself to a person in authority
or the latter’s agent; and (3) the surrender was voluntary. The surrender must be spontaneous,
made in such a manner that it shows the interest of the accused to surrender unconditionally to the
authorities, either because he acknowledged his guilt or he wishes to save them the trouble and
expenses that would necessarily be incurred in the search and capture. 75

In the case at bar, SPO1 Salutre testified that petitioner did not voluntarily surrender but was forcibly
apprehended by Barangay Captain Oller, and thereafter turned over to him. Petitioner however
insists that said testimony is hearsay inasmuch as SPO1 Salutre was not the person who actually
arrested him. We disagree. During SPO1 Salutre’s testimony, petitioner failed to object to the
questions propounded to SPO1 Salutre regarding his apprehension. Consequently, he cannot now
claim that SPO1 Salutre’s testimony on the arrest was hearsay. Petitioner’s assertion of having
voluntarily surrendered to Barangay Captain Oller was not corroborated by any competent and
reliable evidence. Considering the damning averments in the Affidavit of Arrest, petitioner should
have at least called Barangay Captain Oller to the witness stand just to shed light on his alleged
voluntary surrender.

We agree with the trial court that the qualifying circumstance of evident premeditation has not been
adequately shown. To properly appreciate the same, it is necessary to establish: (1) the time when
the offender determined to commit the crime; (2) an act manifestly indicating that the culprit has
clung to this determination; and (3) a sufficient lapse of time between the determination and the
execution to allow him to reflect upon the consequences of his act. 76 Since there is dearth of
evidence on when petitioner first conceived of killing Dean and that he was afforded sufficient time to
reflect on the consequences of his contemplated crime before its final execution, the circumstance of
evident premeditation cannot be appreciated.

Civil Liabilities of Petitioner

The trial court awarded Dean the amount of ₱92,000.00 representing his hospitalization and medical
expenses which was increased by the CA to ₱92,715.68. To be entitled to actual damages, it is
necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon
competent proof and the best evidence obtainable to the injured party. 77 For Dean’s hospitalization
and medical expenses, the receipts submitted to support said claim amounted only to ₱56,275.48;
hence, Dean is entitled only to the said amount.

The Court awards exemplary damages in the amount of ₱25,000.00, inasmuch as the qualifying
circumstance of treachery attended the commission of the crime. In People v. Catubig,78 we
emphasized that insofar as the civil aspect of the crime is concerned, exemplary damages in the
amount of ₱25,000.00 is recoverable if there is present an aggravating circumstance, whether
qualifying or ordinary, in the commission of the crime.

The CA is correct in deleting Dean’s claim for lost salary while recuperating, since this was not
supported by evidence. However, the trial court’s award of ₱10,000.00 as attorney’s fees should be
reinstated, Dean having hired a private prosecutor to prosecute his case.

Lastly, for the suffering Dean endured from petitioner’s felonious act, the award of ₱22,000.00 moral
damages is increased to ₱25,000.00, in keeping with the latest jurisprudence. 79

IN LIGHT OF ALL THE FOREGOING, the assailed Decision is hereby AFFIRMED WITH
MODIFICATION. Petitioner is hereby found guilty beyond reasonable doubt of Frustrated Murder
under Article 248 in relation to Article 6, first paragraph of the Revised Penal Code and is hereby
sentenced to suffer an indeterminate penalty from nine (9) years and four (4) months of prision
mayor in its medium period, as minimum, to seventeen (17) years and four (4) months of reclusion
temporal in its medium period, as maximum.

Petitioner is ordered to pay Dean Dongui-is the amount of ₱56,275.48 as actual damages; ₱25,000
as moral damages; ₱25,000.00 as exemplary damages; and ₱10,000.00 as attorney’s fees.

SO ORDERED.

G.R. No. L-17666 June 30, 1966

ISIDORO MONDRAGON, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES, respondent.

Jose Gaton for petitioner.

Assistant Solicitor General E. Umali and Solicitor N. P. Eduardo for respondent.

ZALDIVAR, J.:

The petitioner, Isidoro Mondragon, was prosecuted in the Court of First Instance of Iloilo of the crime
of frustrated homicide. After trial the Court of First Instance of Iloilo found him guilty of the crime of
attempted homicide and sentenced him to an indeterminate prison term of from 4 months and 21
days of arresto mayor to 2 years, 4 months and 1 day of prision correccional, with the accessory
penalties of the law and the costs. Mondragon appealed to the Court of Appeals, and the latter court
affirmed the decision of the Court of First Instance of Iloilo in all its parts, with costs. This case is
now before us on a petition for certiorari to review the decision of the Court of Appeals. No brief for
the respondent. The People of the Philippines, was filed by the Solicitor General.

The pertinent portion of the decision of the Court of Appeals, which embody the findings of fact and
conclusion of said court, is as follows:

At about 5:00 in the afternoon of July 11, 1954, while complainant Serapion Nacionales was opening
the dike of his ricefield situated in Antandan, Miagao, Iloilo, to drain the water therein and prepare
the ground for planting the next day, he heard a shout from afar telling him not to open the dike,
Nacionales continued opening the dike, and the same voice shouted again, "Don't you dare open the
dike." When he looked up, he saw Isidoro Mondragon coming towards him. Nacionales informed
appellant that he was opening the dike because he would plant the next morning. Without much ado,
Mondragon tried to hit the complainant who dodged the blow. Thereupon, appellant drew his bolo
and struck complainant on different parts of his body. Complainant backed out, unsheathed his own
bolo, and hacked appellant on the head and forearm and between the middle and ring fingers in
order to defend himself. The appellant retreated, and the complainant did not pursue him but went
home instead. The following day, the complainant was treated by Dr. Alfredo Jamandre, Municipal
Health Officer of Miagao, Iloilo, for the following lesions (Exhibit A):

"1. Incised wound about 2-1/2 inches long and 1/3 inches deep cutting diagonally across the
angle of the left jaw.

"2. Incised wound 1-1/2 inches long and cutting the bone underneath (3/4 centimeters deep)
below the right eye.

"3. Incised wound about 1 inch long at the lunar side of the left wrist.

"4. Incised wound about 3-1/2 inches long and 1/2 inch deep at the left side of the lower part
of the left arm.

"5. Incised wound about 1/2 inch long at the back of the left index, middle and ring fingers.

"6. Incised wound about 1 inch long of the palmar side of the left thumb.

"Barring complication the above lesions may heal from 20 to 25 days."

 xxx xxx xxx

Also upon the evidence, the offense committed is attempted homicide. Appellant's intention
to kill may be inferred from his admission made in court that he would do everything he could
to stop Nacionales from digging the canal because he needed the water. However, it was
established that the injuries received by the complainant were not necessarily fatal as to
cause the death of said complainant.

The issue raised by the petitioner in the present appeal is that the Court of Appeals erred in finding
him guilty of the crime of attempted homicide and not of the crime of less serious physical injuries. It
is the contention of the petitioner that the facts as found by the Court of Appeals do not show that
the petitioner had the intention to kill the offended party.
1äw phï1 .ñët

There is merit in the contention of the petitioner. We have carefully examined the record, and We
find that the intention of the petitioner to kill the offended party has not been conclusively shown. The
finding of the Court of Appeals that the petitioner had the intention to kill the offended party is simply
the result of an inference from an answer made by the petitioner while testifying in his own behalf.
Thus in the decision appealed from, it stated:

x x x Appellant's intention to kill may be inferred from his admission made in Court that he
would do everything he could to stop Nacionales from digging the canal because he needed
the water.

The facts as found by the Court of Appeals, in our opinion, do not establish the intent to kill on the
part of the petitioner. Rather, We gather that what happened was that the petitioner and the offended
party had a quarrel over the matter regarding the opening of the canal which would drain the water
away from the land of the petitioner, and because of this quarrel a fight between them took place.
The fight started with the petitioner first giving first blows to the offended party and later he drew his
bolo and inflicted on the offended party the injuries which the Court of Appeals found to be not
necessarily fatal and which were certified by a government medical officer that they would heal in
less than 30 days. The facts as found by the Court of Appeals also show that the offended party
drew his bolo and hit the petitioner on different parts of his body, and that the petitioner retreated
and did not insist on hitting the offended party with his bolo. It may be assumed that the petitioner
drew his bolo and hit the offended party with it only when the offended party had shown a defiant
attitude, considering that the offended party himself had a bolo, as in fact the offended party had
also drawn his bolo and hit the petitioner with it, We consider that under the circumstances
surrounding the fight between the petitioner and the offended party the intention of the petitioner to
kill the offended party was not manifest.

The Court of Appeals concluded that the petitioner had the intention to kill the offended party when
the petitioner answered in the affirmative the question as to whether he would do everything that he
could do to stop the offended party from digging the canal because he needed the water. We
reproduce here the transcript of the pertinent testimony:

xxx xxx xxx

ATTY. MORADA:

Q — In other words you want to tell us that you will do everything you could to stop
Nacionales digging the canal, because you need water?

ATTY. CANTO:
 I object to the question. It is misleading.

COURT:

Witness may answer.

WITNESS:

Yes, sir, because I need the water.

xxx xxx xxx

The foregoing statement or answer was made by the petitioner during the trial which took place on
January 14, 1959. The incident in question took place on July 11, 1954. The statement made by the
petitioner almost five years after the occurrence of the incident should not, in our opinion, be
considered as an accurate indication of what he had in his mind at the time of the incident. Besides,
that answer of the petitioner is not a categorical statement of an intention on his part to kill the
offended party. The term "will do everything" has a broad meaning and it should be construed in a
manner as to give the petitioner the benefit of the doubt as to what he really meant to do. At least it
cannot be said that when the petitioner answered "yes", when he was asked whether he would do
everything to stop Nacionales from digging the canal, the only way he had in mind to stop
Nacionales was to kill him. It must be noted that this answer of the petitioner was made to a
qualifying question propounded to him by the private prosecutor over the objection of his counsel on
the ground that the question was misleading. At most, that answer of the petitioner may only be
considered as an expression of opinion of what he would do under a given circumstance.

The intent to kill being an essential element of the offense of frustrated or attempted homicide, said
element must be proved by clear and convincing evidence. That element must be proved with the
same degree of certainty as is required of the other elements of the crime. The inference of intent to
kill should not be drawn in the absence of circumstances sufficient to prove such intent beyond
reasonable doubt (People vs. Villanueva, 51 Phil. 488).1

We hold that the facts brought out in the decision of the Court of Appeals in the present case do not
justify a finding that the petitioner had the intention to kill the offended party. On the contrary, there
are facts brought out by the decision appealed from which indicates that the petitioner had no
intention to kill, namely: the petitioner started the assault on the offended party by just giving him fist
blows; the wounds inflicted on the offended party were of slight nature, indicating no homicidal urge
on the part of the petitioner; the petitioner retreated and went away when the offended party started
hitting him with a bolo, thereby indicating that if the petitioner had intended to kill the offended party
he would have held his ground and kept on hitting the offended party with his bolo to kill him.

The element of intent to kill not having been duly established, and considering that the injuries
suffered by the offended party were not necessarily fatal and could be healed in less than 30 days,
We hold that the offense that was committed by the petitioner is only that of less serious physical
injuries.

The offense of less serious physical injuries, as defined in Article 265 of the Revised Penal Code, is
punishable by arresto mayor or imprisonment of from 1 month and 1 day to 6 months. The facts as
found by the Court of Appeals do not show any aggravating or mitigating circumstance that may be
considered in the imposition of the penalty on the petitioner. We, therefore, sentence the petitioner to
suffer the penalty of three (3) months and fifteen (15) days of arresto mayor.
In view of the foregoing, the decision of the Court of Appeals appealed from should be, as it is
hereby, modified in the sense that the petitioner is declared guilty of the offense of less serious
physical injuries and he is sentenced to suffer the penalty of three (3) months and fifteen (15) days
of arresto mayor, with costs.

G.R. No. L-5848 April 30, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SY PIO, alias POLICARPIO DE LA CRUZ, defendant-appellant.

Exequiel Zaballero, Jr. for appellant.

Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio Villamor for appellee.

LABRADOR, J.:

This is an appeal from a judgment of the Court of First Instance of Manila finding the defendant-
appellant herein Sy Pio, alias Policarpio de la Cruz, guilty of frustrated murder against the person of
Tan Siong Kiap, and sentencing him to suffer an indeterminate sentence of 6 years, 1 month, and 11
days of prision mayor, to 14 years, 8 months, and 1 day of reclusion temporal, to indemnify the
offended party Tan Siong Kiap in the sum of P350, without subsidiary imprisonment in case of
insolvency, and to pay the costs. The case was appealed to the Court of Appeals, but that court
certified it to this Court under the provisions of section 17 (4) of Republic Act No. 296, on the ground
that the crime charged was committed on the same occasion that the defendant-appellant had
committed crime of murder, with which the defendant-appellant was also charged.

The evidence for the prosecution shows that early in the morning of September 3, 1949, the
defendant-appellant entered the store at 511 Misericordia, Sta Cruz, Manila. Once inside he started
firing a .45 caliber pistol that he had in his hand. The first one shot was Jose Sy. Tan Siong Kiap,
who was in the store and saw the accused enter and afterwards fire a shot at Jose Sy, asked the
defendant-appellant, "What is the idea?" Thereupon defendant-appellant turned around and fired at
him also. The bullet fired from defendant-appellant's pistol entered the right shoulder of Tan Siong
Kiap immediately ran to a room behind the store to hide. From there he still heard gunshot fired from
defendant-appellant's pistol, but afterwards defendant-appellant ran away.

Tan Siong Kiap was brought to the Chinese General Hospital, where his wound was treated. He
stayed there from September 3 to September 12, 1949, when he was released upon his request and
against the physician's advice. He was asked to return to the hospital for further treatment, and he
did so five times for a period of more than ten days. Thereafter his wound was completely healed.
He spent the sum of P300 for hospital and doctor's fees.

The defendant-appellant shot two other persons in the morning of September 3, 1949, before
shooting and wounding Tan Siong Kiap; one was Ong Pian and the other Jose Sy. On September 5
information was received by the Manila Police Department that defendant-appellant was in custody
of the Constabulary in Tarlac, so a captain of the Manila police by the name of Daniel V. Lomotan
proceeded to Tarlac. There he saw the defendant-appellant and had a conversation with him. On
this occasion defendant-appellant and had a conversation with him. On this occasion defendant-
appellant admitted to Lomotan that his victims were Tan Siong Kiap, Ong Pian, and Jose Sy. The
Constabulary in Tarlac also delivered to Lomotan the pistol used by the defendant-appellant, marked
Exhibit C, and its magazine, Exhibit C-1, both of which the Constabulary had confiscated from the
defendant-appellant. The defendant-appellant was thereupon delivered to the custody of Lomotan,
and the latter brought him to Manila, where his statement was taken down in writing. This declaration
was submitted at the time of the trial as Exhibit D, and it contains all the details of the assaults that
defendant-appellant 3 against the persons of Tan Siong Kiap, Ong Pian, and Jose Sy. This written
statement was taken down on a typewriter and afterwards signed by the defendant-appellant in both
his Chinese and Filipino names, the latter being Policarpio de la Cruz.

According to the declaration of the defendant-appellant, some months prior to September 3, 1949,
he was employed as an attendant in a restaurant belonging to Ong Pian. Defendant-appellant's wife
by the name of Vicenta was also employed by Ong Pian's partner, Eng Cheng Suy. Prior to
September 3 the relatives of his wife had been asking the latter for help, because her father was
sick. Defendant-appellant asked money from Ong Pian, but the latter could only give him P1. His
wife was able to borrow P20 from her employer, and this was sent to his wife's parents in Cebu.
Afterwards defendant-appellant was dismissed from his work at the restaurant of Ong Pian, and he
became a peddler. Ong Pian presented a list of the sums that defendant-appellant had borrowed
from him, and these sums were deducted from the salary of his wife. Defendant-appellant did not
recognize these sums as his indebtedness, and so he resented Ong Pian's conduct.

As to Tan Siong Kiap, the confession states that a few days before September 3, 1949, defendant-
appellant had been able to realize the sum of P70 from the sales of medicine that he peddled. He
laid his money in a place in his room, but the following morning he found that it had disappeared
from the place in which he had placed it. Tan Siong Kiap and Jose Sy, upon the discovery of the loss
of money, told defendant-appellant that he must have given the money to his wife, and that nobody
had stolen it. After this incident of the loss, the defendant-appellant used to hear Tan Siong Kiap and
Jose Sy and other Chinamen say that the money had not been actually stolen, but that he lost it in
gambling. Because of these accusations against him, he nurtured resentment against both Tan
Siong Kiap and Jose Sy.

So early in the morning of September 3, while a Chinaman by the name of Ngo Cho, who the
possessor of a caliber .45 pistol, was away from his room, defendant-appellant got his pistol and
tucked it in his belt. With this pistol he went to the restaurant at 822 Ongpin, and there shot Ong
Pian. After shooting him, he proceeded to 511 Misericordia, in store where Jose Sy and Tan Siong
Kiap were, and there he fired at them. Then he escaped to Legarda Street, in Sampaloc, where he
borrowed P1 from his relatives. From there he went to Malabon, to the house of his mother, to whom
he told he had killed two persons and from he asked money.

The foregoing is the substance of the written declaration made by the defendant-appellant in Exhibit
D on September 6, 1949. At the time of the trial, however, he disowned the confession and
explained that he signed it without having read its contents. He declared that it was not he who shot
the three victims, but it was one by the name of Chua Tone, with whom he had previously connived
to kill the three other victims. He introduced no witnesses, however, to support his denial. Neither did
he deny that he admitted before Captain Lomotan having killed the three persons, or having been
found in Tarlac in possession of the caliber .45 pistol, Exhibit C, and its magazine, Exhibit C-1. In his
cross-examination he admitted many of the incidents mentioned in the confession, especially the
cause of his resentment against his victims Ong Pian, Jose Sy, and Tan Siong Kiap.

The trial court refused to believed his testimony, and therefore, found him guilty of the crime
charged.

On this appeal counsel for the defendant-appellant claims that the trial court erred in not finding that
Tan Siong Kiap received the shot accidentally from the same bullet that had been fired at Jose Sy,
and in finding that defendant-appellant has committed a crime distinct and separate from that of
murder for the slaying of Jose Sy. We find no merit in this contention. According to the
uncontradicted testimony of the offended party Tan Siong Kiap, when the latters saw defendant-
appellant firing shots he asked him why he was doing so, and the defendant-appellant, instead of
answering him, turned around and fired at him also. It is not true, therefore, that the shot which hit
him was fired at Sy.

It is also contended that the evidence is not sufficient to sustain the judgment of conviction. We also
find no merit in this contention. The evidence submitted to prove the charge consists of: the
uncontradicted testimony of the victim himself; the admissions made verbally by the defendant-
appellant before Captain Lomotan in Tarlac; the fact that the defendant-appellant had escaped and
was found in Tarlac; his possession of the .45 caliber pistol coupled with the fact, attested to by the
testimony of the physician who examined and treated the wounds of Tan Siong Kiap, that the
wounds found in his person must have been caused by the caliber .45 bullet; and, lastly, the
confession of the defendant-appellant himself, Exhibit D, which he was not able to impugn. As
against this mass of evidence, defendant-appellant has only made a very unbelievable story that it
was not he but another that had committed the crime charged. His admissions at the time of the trial
regarding the incidents, as well as the cause of his having assaulted his victims, coincide exactly
with the reasons given in his written confession. This shows that he had made the confession
himself, for nobody but himself could have known the facts therein stated. The claim that the offense
has not been proved beyond reasonable doubt must be dismissed.

The defendant-appellant lastly claims that the lower court also erred in sentencing him to pay an
indemnity of P350. The offended party testified that he actually spent P300 for hospital and doctor's
fees, and that he was confined in the hospital for nine days. The above facts stand uncontradicted.
This assignment of error must also be dismissed.

It is lastly contended that the defendant-appellant should be found guilty only of less serious physical
injuries instead of the crime of frustrated murder as defendant-appellant admitted in his confession in
the open court that he had a grudge against the offended party, and that he connived with another to
kill the latter. The intent to kill is also evident from his conduct in firing the shot directly at the body of
the offended party.

But while intent to kill is conclusively proved the wound inflicted was not necessarily fatal, because it
did not touch any of the vital organs of the body. As a matter of fact, the medical certification issued
by the physician who examined the wound of the offended party at the time he went to the hospital,
states that the wound was to heal within a period of fourteen days, while the offended party actually
stayed in the hospital for nine days and continued receiving treatment thereafter five time for the
period of more than ten days, or a total of not more than thirty days. The question that needs to be
determined, therefore, is: Did the defendant-appellant perform all the acts of execution necessary to
produce the death of his victim?

In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. Dagman, 47 Phil., 768 and People vs.
Borinaga, 55 Phil., 433, this Court has held that it is not necessary that the accused actually commit
all the acts of execution necessary to produce the death of his victim, but that it is sufficient that he
believes that he has committed all said acts. In the case of People vs. Dagman, supra, the victim
was first knocked down by a stone thrown at him, then attacked with a lance, and then wounded by
bolos and clubs wielded by the accused, but the victim upon falling down feigned death, and the
accused desisted from further continuing in the assault in the belief that their victim was dead. And in
the case of People vs. Borinaga, supra, the accused stabbed his intended victim, but the knife with
which he committed the aggression instead of hitting the body of the victim, lodged in the back of the
chair in which he was seated, although the accused believed that he had already harmed him. In
both these cases this Court held that of the crime committed was that of frustrated murder, because
the subjective phase of the acts necessary to commit the offense had already passed; there was full
and complete belief on the part of the assailant that he had committed all the acts of execution
necessary to produce the death of the intended victim.

In the case at bar, however, the defendant-appellant fired at his victim, and the latter was hit, but he
was able to escape and hide in another room. The fact that he was able to escape, which appellant
must have seen, must have produced in the mind of the defendant-appellant that he was not able to
his his victim at a vital part of the body. In other words, the defendant-appellant knew that he had not
actually all the acts of execution necessary to kill his victim. Under these circumstances, it can not
be said that the subjective phase of the acts of execution had been completed. And as it does not
appear that the defendant-appellant continued in the pursuit, and as a matter of fact, he ran away
afterwards a reasonable doubt exist in our mind that the defendant-appellant had actually believed
that he has committed all the acts of execution or passed the subjective phase of the said acts. This
doubt must be resolved in favor of the defendant-appellant.

We are, therefore, not prepared to find the defendant-appellant guilty of frustrated murder, as
charged in the information. We only find him guilty of attempted murder, because he did not perform
all the acts of execution, actual and subjective, in order that the purpose and intention that he had to
kill his victim might be carried out.

Therefore, the judgment appealed from should be, as it is hereby, modified and the defendant-
appellant is found guilty of the crime of attempted murder, and the sentence imposed upon him
reduced to an indeterminate penalty of from 4 years, 2 months, and 1 day of prision correccional to
10 years of prision mayor. In all other respects the judgment is affirmed. With costs against the
defendant-appellant.

G.R. No. 88724 April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CEILITO ORITA alias "Lito," defendant-appellant.

The Office of the Solicitor General for plaintiff-appellee.

C. Manalo for defendant-appellant.

MEDIALDEA, J.:

The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-
031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in
the said case reads as follows (p. 47, Rollo):

The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the
offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as
follows:

That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at
Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of
this Honorable Court, above named accused with lewd designs and by the use of a
Batangas knife he conveniently provided himself for the purpose and with threats and
 intimidation, did, then and there wilfully, unlawfully and feloniously lay with and succeeded in
having sexual intercourse with Cristina S. Abayan against her will and without her consent.

CONTRARY TO LAW.

Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the
witnesses for the People testified and the exhibits were formally offered and admitted, the
prosecution rested its case. Thereafter, the defense opted not to present any exculpatory evidence
and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the
dispositive portion of which reads (pp. 59-60, Rollo):

WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @
LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the
aggravating circumstances of dwelling and nightime (sic) with no mitigating circumstance to
offset the same, and considering the provisions of the Indeterminate Sentence Law, imposes
on accused an imprisonment of TEN (10) YEARS and ONE (1) DAY,PRISION MAYOR, as
minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S.
ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment
in case of insolvency, and to pay costs.

SO ORDERED.

Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29,
1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p.
102, Rollo):

WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty
of the crime of rape, and consequently, sentenced to suffer imprisonment of reclusion
perpetua and to indemnify the victim in the amount of P30,000.00.

SO ORDERED.

On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988
decision and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of
Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the
Judiciary Act of 1948.

The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):

Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's
College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier.

In the early morning of March 20, 1983, complainant arrived at her boarding house. Her
classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after
her classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a
sudden, somebody held her and poked a knife to her neck. She then recognized appellant
who was a frequent visitor of another boarder (pp. 8-9, ibid).

She pleaded with him to release her, but he ordered her to go upstairs with him. Since the
door which led to the first floor was locked from the inside, appellant forced complainant to
use the back door leading to the second floor (p. 77, ibid). With his left arm wrapped around
her neck and his right hand poking a "balisong" to her neck, appellant dragged complainant
up the stairs (p. 14, ibid). When they reached the second floor, he commanded her to look
for a room. With the Batangas knife still poked to her neck, they entered complainant's room.

Upon entering the room, appellant pushed complainant who hit her head on the wall. With
one hand holding the knife, appellant undressed himself. He then ordered complainant to
take off her clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and
panty (p. 20, ibid).

He ordered her to lie down on the floor and then mounted her. He made her hold his penis
and insert it in her vagina. She followed his order as he continued to poke the knife to her. At
said position, however, appellant could not fully penetrate her. Only a portion of his penis
entered her as she kept on moving (p. 23, ibid).

Appellant then lay down on his back and commanded her to mount him. In this position, only
a small part again of his penis was inserted into her vagina. At this stage, appellant had both
his hands flat on the floor. Complainant thought of escaping (p. 20, ibid).

She dashed out to the next room and locked herself in. Appellant pursued her and climbed
the partition. When she saw him inside the room, she ran to another room. Appellant again
chased her. She fled to another room and jumped out through a window (p. 27, ibid).

Still naked, she darted to the municipal building, which was about eighteen meters in front of
the boarding house, and knocked on the door. When there was no answer, she ran around
the building and knocked on the back door. When the policemen who were inside the
building opened the door, they found complainant naked sitting on the stairs crying. Pat.
Donceras, the first policeman to see her, took off his jacket and wrapped it around her. When
they discovered what happened, Pat. Donceras and two other policemen rushed to the
boarding house. They heard a sound at the second floor and saw somebody running away.
Due to darkness, they failed to apprehend appellant.

Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital
where she was physically examined.

Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical
Certificate (Exhibit "A") which states:

Physical Examination — Patient is fairly built, came in with loose clothing with no
under-clothes; appears in state of shock, per unambulatory.

PE Findings — Pertinent Findings only.

Neck- — Circumscribed hematoma at Ant. neck.

Breast — Well developed, conical in shape with prominent nipples; linear abrasions
below (L) breast.

Back — Multiple pinpoint marks.

Extremities — Abrasions at (R) and (L) knees.

 Vulva — No visible abrasions or marks at the perineal area or over the
vulva, errythematous (sic) areas noted surrounding vaginal orifice, tender, hymen
intact; no laceration fresh and old noted; examining finger can barely enter and with
difficulty; vaginal canal tight; no discharges noted.

As aforementioned, the trial court convicted the accused of frustrated rape.

In this appeal, the accused assigns the following errors:

1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the
witnesses; and

2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.

The accused assails the testimonies of the victim and Pat. Donceras because they "show
remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore
casted doubt to its candor, truth and validity." (p. 33, Rollo)

A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which
are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being
badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as
manifestations of truthfulness on material points. These little deviations also confirm that the
witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but
such honest lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-
37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution
witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such
spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16,
1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be a strong
indication of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June 27,
1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves a little discussion
which is, the testimony of the victim that the accused asked her to hold and guide his penis in order
to have carnal knowledge of her. According to the accused, this is strange because "this is the only
case where an aggressor's advances is being helped-out by the victim in order that there will be a
consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the
testimony of the victim ended there. The victim testified further that the accused was holding a
Batangas knife during the aggression. This is a material part of the victim's testimony which the
accused conveniently deleted.

We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court
on the credibility of witnesses should be accorded the highest respect because it has the advantage
of observing the demeanor of witnesses and can discern if a witness is telling the truth (People v.
Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding
the testimony of the victim (p 56, Rollo):

As correctly pointed out in the memorandum for the People, there is not much to be desired
as to the sincerity of the offended party in her testimony before the court. Her answer to
every question profounded (sic), under all circumstances, are plain and straightforward. To
the Court she was a picture of supplication hungry and thirsty for the immediate vindication
of the affront to her honor. It is inculcated into the mind of the Court that the accused had
wronged her; had traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is necessary to show
that rape was committed provided her testimony is clear and free from contradiction and her sincerity
and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA
487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol
G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that
she was raped but she testified convincingly on how the rape was committed. The victim's testimony
from the time she knocked on the door of the municipal building up to the time she was brought to
the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in the medical
certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude)
declared that the abrasions in the left and right knees, linear abrasions below the left breast, multiple
pinpoint marks, circumscribed hematoma at the anterior neck, erythematous area surrounding the
vaginal orifice and tender vulva, are conclusive proof of struggle against force and violence exerted
on the victim (pp. 52-53, Rollo). The trial court even inspected the boarding house and was fully
satisfied that the narration of the scene of the incident and the conditions therein is true (p.
54, Rollo):

. . . The staircase leading to the first floor is in such a condition safe enough to carry the
weight of both accused and offended party without the slightest difficulty, even in the manner
as narrated. The partitions of every room were of strong materials, securedly nailed, and
would not give way even by hastily scaling the same.

A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al.,
G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):

. . . And the jump executed by the offended party from that balcony (opening) to the ground
which was correctly estimated to be less than eight (8) meters, will perhaps occasion no
injury to a frightened individual being pursued. Common experience will tell us that in
occasion of conflagration especially occuring (sic) in high buildings, many have been saved
by jumping from some considerable heights without being injured. How much more for a
frightened barrio girl, like the offended party to whom honor appears to be more valuable
than her life or limbs? Besides, the exposure of her private parts when she sought
assistance from authorities, as corroborated, is enough indication that something not
ordinary happened to her unless she is mentally deranged. Sadly, nothing was adduced to
show that she was out of her mind.

In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We
ruled that:

What particularly imprints the badge of truth on her story is her having been rendered entirely
naked by appellant and that even in her nudity, she had to run away from the latter and
managed to gain sanctuary in a house owned by spouses hardly known to her. All these acts
she would not have done nor would these facts have occurred unless she was sexually
assaulted in the manner she narrated.

The accused questions also the failure of the prosecution to present other witnesses to corroborate
the allegations in the complaint and the non-presentation of the medico-legal officer who actually
examined the victim. Suffice it to say that it is up to the prosecution to determine who should be
presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court of
Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989).
As for the non-presentation of the medico-legal officer who actually examined the victim, the trial
court stated that it was by agreement of the parties that another physician testified inasmuch as the
medico-legal officer was no longer available. The accused did not bother to contradict this
statement.

Summing up, the arguments raised by the accused as regards the first assignment of error fall flat
on its face. Some were not even substantiated and do not, therefore, merit consideration. We are
convinced that the accused is guilty of rape. However, We believe the subject matter that really calls
for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial court
was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim
and thus convicted the accused of frustrated rape only.

The accused contends that there is no crime of frustrated rape. The Solicitor General shares the
same view.

Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:

Art. 335. When and how rape is committed. — Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious and

3. When the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.

xxx xxx xxx

Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman
(Black's Law Dictionary. Fifth Edition, p. 193).

On the other hand, Article 6 of the same Code provides:

Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well

as those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence but which, nevertheless, do not
produce it by reason of causes independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a felony directly by
overt acts, and does not perform all the acts of execution which should produce the felony by
reason of some cause or accident other than his own spontaneous desistance.

Correlating these two provisions, there is no debate that the attempted and consummated stages
apply to the crime of rape. Our concern now is whether or not the frustrated stage applies to the
1âwphi1

crime of rape.

The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution
which would produce the felony and (2) that the felony is not produced due to causes independent of
the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice
Moreland set a distinction between attempted and frustrated felonies which is readily understood
even by law students:

. . . A crime cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by some outside cause
from performing all of the acts which should produce the crime. In other words, to be an
attempted crime the purpose of the offender must be thwarted by a foreign force or agency
which intervenes and compels him to stop prior to the moment when he has performed all of
the acts which should produce the crime as a consequence, which acts it is his intention to
perform. If he has performed all of the acts which should result in the consummation of the
crime and voluntarily desists from proceeding further, it can not be an attempt. The essential
element which distinguishes attempted from frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts have been performed which
should result in the consummated crime; while in the former there is such intervention and
the offender does not arrive at the point of performing all of the acts which should produce
the crime. He is stopped short of that point by some cause apart from his voluntary
desistance.

Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he
actually attains his purpose and, from that moment also all the essential elements of the offense
have been accomplished. Nothing more is left to be done by the offender, because he has
performed the last act necessary to produce the crime.Thus, the felony is consummated. In a long
line of cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras,
G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21,
1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect
penetration is not essential. Any penetration of the female organ by the male organ is sufficient.
Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina
is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the
female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States
v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt acts. Taking into account the nature,
elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly
conceivable how the frustrated stage in rape can ever be committed.

Of course, We are aware of our earlier pronouncement in the case of People v. Eriña 50 Phil. 998
[1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of
penetration of the genital organ of the offended party. However, it appears that this is a "stray"
decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are
aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a
homicide is committed by reason or on the occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead provision. The Eriña case, supra, might have
prompted the law-making body to include the crime of frustrated rape in the amendments introduced
by said laws.

In concluding that there is no conclusive evidence of penetration of the genital organ of the victim,
the trial court relied on the testimony of Dr. Zamora when he "categorically declared that the findings
in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to
the offended party the answer as to whether or not there actually was penetration." (p. 53, Rollo)
Furthermore, the trial court stated (p. 57, Rollo):
 . . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted
by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether
there was penetration or not. It is true, and the Court is not oblivious, that conviction for rape
could proceed from the uncorroborated testimony of the offended party and that a medical
certificate is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the
citations the people relied upon cannot be applicable to the instant case. The testimony of
the offended party is at variance with the medical certificate. As such, a very disturbing doubt
has surfaced in the mind of the court. It should be stressed that in cases of rape where there
is a positive testimony and a medical certificate, both should in all respect, compliment each
other, for otherwise to rely on the testimony alone in utter disregard of the manifest variance
in the medical certificate, would be productive of mischievous results.

The alleged variance between the testimony of the victim and the medical certificate does not exist.
On the contrary, it is stated in the medical certificate that the vulva was erythematous (which means
marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and tender.
It bears emphasis that Dr. Zamora did not rule out penetration of the genital organ of the victim. He
merely testified that there was uncertainty whether or not there was penetration. Anent this
testimony, the victim positively testified that there was penetration, even if only partially (pp. 302,
304, t.s.n., May 23, 1984):

Q Was the penis inserted on your vagina?

A It entered but only a portion of it.

xxx xxx xxx

Q What do you mean when you said comply, or what act do you referred (sic) to, when you
said comply?

A I inserted his penis into my vagina.

Q And was it inserted?

A Yes only a little.

The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of
the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA
65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo,
G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is
merely corroborative and is not an indispensable element in the prosecution of this case (People v.
Alfonso, supra).

Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused
because after a thorough review of the records, We find the evidence sufficient to prove his guilt
beyond reasonable doubt of the crime of consummated rape.

Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is
committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The
trial court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper
imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution
and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited
Constitutional provision did not declare the abolition of the death penalty but merely prohibits the
imposition of the death penalty, the Court has since February 2, 1987 not imposed the death penalty
whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion
perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua,
being a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of any
mitigating or aggravating circumstances (in relation to Article 63, paragraph 1, Revised Penal
Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano,
G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31,
1985, 136 SCRA 702).

ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito
Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced
to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00.

SO ORDERED.

G.R. No. 129433 March 30, 2000

PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
PRIMO CAMPUHAN Y BELLO accused.

BELLOSILLO, J.:

On 3 April 1990 this Court in People v. Orita 1 finally did away with frustrated rape 2 and allowed only
attempted rape and consummated rape to remain in our statute books. The instant case lurks at the
threshold of another emasculation of the stages of execution of rape by considering almost every
attempt at sexual violation of a woman as consummated rape, that is, if the contrary view were to be
adopted. The danger there is that that concept may send the wrong signal to every roaming lothario,
whenever the opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since
after all any attempted fornication would be considered consummated rape and punished as such. A
mere strafing of the citadel of passion would then be considered a deadly fait accompli, which is
absurd.

In Orita we held that rape was consummated from the moment the offender had carnal knowledge of
the victim since by it he attained his objective. All the elements of the offense were already present
and nothing more was left for the offender to do, having performed all the acts necessary to produce
the crime and accomplish it. We ruled then that perfect penetration was not essential; any
penetration of the female organ by the male organ, however slight, was sufficient. The Court further
held that entry of the labia or lips of the female organ, even without rupture of the hymen or
laceration of the vagina, was sufficient to warrant conviction for consummated rape. We
distinguished consummated rape from attempted rape where there was no penetration of the female
organ because not all acts of execution were performed as the offender merely commenced the
commission of a felony directly by overt acts. 3The inference that may be derived therefrom is that
complete or full penetration of the vagina is not required for rape to be consummated. Any
penetration, in whatever degree, is enough to raise the crime to its consummated stage.

But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or
lips of the female organ, even if there be no rupture of the hymen or laceration of the vagina, to
warrant a conviction for consummated rape. While the entry of the penis into the lips of the female
organ was considered synonymous with mere touching of the external genitalia, e.g., labia majora,
labia minora, etc.,4 the crucial doctrinal bottom line is that touching must be inextricably viewed in
light of, in relation to, or as an essential part of, the process of penile penetration, and not just mere
touching in the ordinary sense. In other words, the touching must be tacked to the penetration itself.
The importance of the requirement of penetration, however slight, cannot be gainsaid because
where entry into the labia or the lips of the female genitalia has not been established, the crime
committed amounts merely to attempted rape.

Verily, this should be the indicium of the Court in determining whether rape has been committed
either in its attempted or in its consummated stage; otherwise, no substantial distinction would exist
between the two, despite the fact that penalty-wise, this distinction, threadbare as it may seem,
irrevocably spells the difference between life and death for the accused — a reclusive life that is not
even perpetua but only temporal on one hand, and the ultimate extermination of life on the other.
And, arguing on another level, if the case at bar cannot be deemed attempted but consummated
rape, what then would constitute attempted rape? Must our field of choice be thus limited only to
consummated rape and acts of lasciviousness since attempted rape would no longer be possible in
light of the view of those who disagree with this ponencia?

On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the
court a quo to the extreme penalty of death, 5 hence this case before us on automatic review under
Art. 335 of the Revised Penal Code as amended by RA 7659. 6

As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in the
afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down
from the second floor of their house to prepare Milo chocolate drinks for her two (2) children. At the
ground floor she met Primo Campuhan who was then busy filling small plastic bags with water to be
frozen into ice in the freezer located at the second floor. Primo was a helper of Conrado Plata Jr.,
brother of Corazon. As Corazon was busy preparing the drinks, she heard one of her daughters cry,
"Ayo'ko, ayo'ko!" 7 prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan inside
her children's room kneeling before Crysthel whose pajamas or "jogging pants" and panty were
already removed, while his short pants were down to his knees.

According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified, she cursed the
accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and
pulled up his pants. He pushed Corazon aside when she tried to block his path. Corazon then ran
out and shouted for help thus prompting her brother, a cousin and an uncle who were living within
their compound, to chase the accused. 8 Seconds later, Primo was apprehended by those who
answered Corazon's call for help. They held the accused at the back of their compound until they
were advised by their neighbors to call the barangay officials instead of detaining him for his
misdeed. Physical examination of the victim yielded negative results. No evident sign of extra-genital
physical injury was noted by the medico-legal officer on Crysthel's body as her hymen was intact and
its orifice was only 0.5 cm. in diameter.

Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and
assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against
him for his refusal to run an errand for her. 9 He asserted that in truth Crysthel was in a playing mood
and wanted to ride on his back when she suddenly pulled him down causing both of them to fall
down on the floor. It was in this fallen position that Corazon chanced upon them and became
hysterical. Corazon slapped him and accused him of raping her child. He got mad but restrained
himself from hitting back when he realized she was a woman. Corazon called for help from her
brothers to stop him as he ran down from the second floor.

Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente
punched him and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the
house of Conrado Plata but Vicente followed him there. Primo pleaded for a chance to explain as he
reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo saw
Vicente holding a piece of lead pipe, Primo raised his hands and turned his back to avoid the blow.
At this moment, the relatives and neighbors of Vicente prevailed upon him to take Primo to the
barangay hall instead, and not to maul or possibly kill him.

Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty
of statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim
P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs.

The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He
argues that her narration should not be given any weight or credence since it was punctured with
implausible statements and improbabilities so inconsistent with human nature and experience. He
claims that it was truly inconceivable for him to commit the rape considering that Crysthel's younger
sister was also in the room playing while Corazon was just downstairs preparing Milo drinks for her
daughters. Their presence alone as possible eyewitnesses and the fact that the episode happened
within the family compound where a call for assistance could easily be heard and responded to,
would have been enough to deter him from committing the crime. Besides, the door of the room was
wide open for anybody to see what could be taking place inside. Primo insists that it was almost
inconceivable that Corazon could give such a vivid description of the alleged sexual contact when
from where she stood she could not have possibly seen the alleged touching of the sexual organs of
the accused and his victim. He asserts that the absence of any external signs of physical injuries or
of penetration of Crysthel's private parts more than bolsters his innocence.

In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she
saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and
panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthel's
vagina." The gravamen of the offense of statutory rape is carnal knowledge of a woman below
twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4)
years old when sexually molested, thus raising the penalty, from reclusion perpetuato death, to the
single indivisible penalty of death under RA 7659, Sec. 11, the offended party being below seven (7)
years old. We have said often enough that in concluding that carnal knowledge took place, full
penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen
necessary; the mere touching of the external genitalia by the penis capable of consummating the
sexual act is sufficient to constitute carnal knowledge. 10 But the act of touching should be understood
here as inherently part of the entry of the penis into the labias of the female organ and not mere
touching alone of the mons pubis or the pudendum.

In People v. De la Peña 11 we clarified that the decisions finding a case for rape even if the attacker's
penis merely touched the external portions of the female genitalia were made in the context of the
presence or existence of an erect penis capable of full penetration. Where the accused failed to
achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into the
victim's vagina, the Court nonetheless held that rape was consummated on the basis of the victim's
testimony that the accused repeatedly tried, but in vain, to insert his penis into her vagina and in all
likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her vulva, 12 or
that the penis of the accused touched the middle part of her vagina. 13 Thus, touching when applied to
rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight
brush or a scrape of the penis on the external layer of the victim's vagina, or the mons pubis, as in
this case. There must be sufficient and convincing proof that the penis indeed touched the labias or
slid into the female organ, and not merely stroked the external surface thereof, for an accused to be
convicted of consummated rape. 14 As the labias, which are required to be "touched" by the penis, are
by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with
the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that
touching the labia majora or the labia minora of the pudendum constitutes consummated rape.

The pudendum or vulva is the collective term for the female genital organs that are visible in the
perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal
orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is
instantly visible within the surface. The next layer is the labia majora or the outer lips of the female
organ composed of the outer convex surface and the inner surface. The skin of the outer convex
surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which
does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the
labia minora. 15 Jurisprudence dictates that the labia majora must be entered for rape to be
consummated, 16 and not merely for the penis to stroke the surface of the female organ. Thus, a
grazing of the surface of the female organ or touching the mons pubis of the pudendum is not
sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the
female organ, i.e., touching of either labia of the pudendum by the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.

Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the
female organ," 17but has also progressed into being described as "the introduction of the male organ
into the labia of the pudendum," 18 or "the bombardment of the drawbridge." 19 But, to our mild, the
case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a
"strafing of the citadel of passion.

A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of
proving that Primo's penis was able to penetrate Crysthel's vagina however slight. Even if we
grant arguendo that Corazon witnessed Primo in the act of sexually molesting her daughter, we
seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and
Crysthel. When asked what she saw upon entering her children's room Corazon plunged into saying
that she saw Primo poking his penis on the vagina of Crysthel without explaining her relative position
to them as to enable her to see clearly and sufficiently, in automotive lingo, the contact point. It
should be recalled that when Corazon chanced upon Primo and Crysthel, the former was allegedly
in a kneeling position, which Corazon described thus:

Q: How was Primo holding your daughter?

A: (The witness is demonstrating in such a way that the chest of the accused is pinning down
the victim, while his right hand is holding his penis and his left hand is spreading the legs of
the victim).

It can reasonably be drawn from the foregoing narration that Primo's kneeling position rendered an
unbridled observation impossible. Not even a vantage point from the side of the accused and the
victim would have provided Corazon an unobstructed view of Primo's penis supposedly reaching
Crysthel's external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and
arms of Primo would have hidden his movements from Corazon's sight, not to discount the fact that
Primo's right hand was allegedly holding his penis thereby blocking it from Corazon's view. It is the
burden of the prosecution to establish how Corazon could have seen the sexual contact and to
shove her account into the permissive sphere of credibility. It is not enough that she claims that she
saw what was done to her daughter. It is required that her claim be properly demonstrated to inspire
belief. The prosecution failed in this respect, thus we cannot conclude without any taint of serious
doubt that inter-genital contact was at all achieved. To hold otherwise would be to resolve the doubt
in favor of the prosecution but to run roughshod over the constitutional right of the accused to be
presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her
timely appearance, thus giving her the opportunity to fully witness his beastly act.

We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain where he is
and persist in satisfying his lust even when he knows fully well that his dastardly acts have already
been discovered or witnessed by no less than the mother of his victim. For, the normal behavior or
reaction of Primo upon learning of Corazon's presence would have been to pull his pants up to avoid
being caught literally with his pants down. The interval, although relatively short, provided more than
enough opportunity for Primo not only to desist from but even to conceal his evil design.

What appears to be the basis of the conviction of the accused was Crysthel's answer to the question
of the court —

Q: Did the penis of Primo touch your organ?

A: Yes, sir.

But when asked further whether his penis penetrated her organ, she readily said, "No." Thus —

Q: But did his penis penetrate your organ?

A: No, sir. 20

This testimony alone should dissipate the mist of confusion that enshrouds the question of whether
rape in this case was consummated. It has foreclosed the possibility of Primo's penis penetrating her
vagina, however slight. Crysthel made a categorical statement denying penetration, 27 obviously
induced by a question propounded to her who could not have been aware of the finer distinctions
between touching and penetration. Consequently, it is improper and unfair to attach to this reply of a
four (4)-year old child, whose vocabulary is yet as underdeveloped as her sex and whose language
is bereft of worldly sophistication, an adult interpretation that because the penis of the accused
touched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate the
victim's organ the penis of the accused touched the middle portion of her vagina and entered the
labia of her pudendum as the prosecution failed to establish sufficiently that Primo made efforts to
penetrate Crysthel. 22 Corazon did not say, nay, not even hint that Primo's penis was erect or that he
responded with an erection. 23 On the contrary, Corazon even narrated that Primo had to hold his
penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate
his victim.

Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied by the
child's own assertion that she resisted Primo's advances by putting her legs close
together; 24 consequently, she did not feel any intense pain but just felt "not happy" about what Primo
did to her. 25 Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where
penetration was not fully established, the Court had anchored its conclusion that rape nevertheless
was consummated on the victim's testimony that she felt pain, or the medico-legal finding of
discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or
the hymenal tags were no longer visible. 26 None was shown in this case. Although a child's testimony
must be received with due consideration on account of her tender age, the Court endeavors at the
same time to harness only what in her story appears to be true, acutely aware of the equally
guaranteed rights of the accused. Thus, we have to conclude that even on the basis of the testimony
of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to
death.1âw phi1
Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no
external signs of physical injuries on complaining witness' body to conclude from a medical
perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the
absence of complete penetration of the hymen does not negate the possibility of contact, she
clarified that there was no medical basis to hold that there was sexual contact between the accused
and the victim. 27

In cases of rape where there is a positive testimony and a medical certificate, both should in all
respects complement each other; otherwise, to rely on the testimonial evidence alone, in utter
disregard of the manifest variance in the medical certificate, would be productive of unwarranted or
even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in
reality entered the labial threshold of the female organ to accurately conclude that rape was
consummated. Failing in this, the thin line that separates attempted rape from consummated rape
will significantly disappear.

Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender
commences the commission of rape directly by overt acts, and does not perform all the acts of
execution which should produce the crime of rape by reason of some cause or accident other than
his own spontaneous desistance. All the elements of attempted rape — and only of attempted rape
— are present in the instant case, hence, the accused should be punished only for it.

The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the
offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower
is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years.
Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating
circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the
medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and
(1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the
penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one
(1) day to twelve (12) years, in any of its periods.

WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y
BELLO guilty of statutory rape and sentencing him to death and to pay damages is MODIFIED. He is
instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight
(8) years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen (14)
years ten (10) months and twenty (20) days of reclusion temporal medium as maximum. Costs de
oficio.

SO ORDERED. 1âwphi1.n êt

G.R. No. L-14128 December 10, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
SEVERINO VALDES Y GUILGAN, defendant-appellant.

Ariston Estrada for appellant.

Attorney-General Paredes for appellee.
TORRES, J.:

This cause was instituted by a complaint filed by the prosecuting attorney before the Court of First
Instance of this city, charging Severino Valdes y Guilgan and Hugo Labarro y Bunaladi, alias Hugo
Navarro y Bunadia, with the crime of arson, and, on the 20th of May of the present year, judgment
was rendered whereby Severino or Faustino Valdes u Guilgan was sentenced to six years and one
day of presidio mayor and to pay one-half of the costs. From this judgment this defendant appealed.
With respect to Hugo Labarro or Navarro, the proceedings were dismissed with the other half of the
costs de officio.

Between 8 and 9 o'clock in the morning of April 28th of this year, when M. D. Lewin was absent from
the house in which he was living his family, at No. 328, San Rafael Street, San Miguel, Mrs.
Auckback, who appears to have been a resident of the neighborhood, called Mrs. Lewin and told her
that much smoke was issuing from the lower floor of the latter's house, for until then Mrs. Lewin had
not noticed it, and as soon as her attention was brought to the fact she ordered the servant Paulino
Banal to look for the fire, as he did and he found, so asked with kerosene oil and placed between a
post of the house and a partition of the entresol, a piece of a jute sack and a rag which were burning.
At that moment the defendant Valdes was in the entresol, engaged in his work of cleaning, while, the
other defendant Hugo Labarro was cleaning the horses kept at the place.

On the same morning of the occurrence, the police arrested the defendants, having been called for
the purpose by telephone. Severino Valdes, after his arrest, according to the statement, Exhibit C,
drawn up in the police station, admitted before several policemen that it was he who had set the fire
to the sack and the rag, which had been noticed on the date mentioned. and he also who had
started the several other fires which had occurred in said house on previous days; that he had
performed such acts through the inducement of the other prisoner, Hugo Labarro, for they felt
resentment against, or had trouble with, their masters, and that, as he and his coaccused were
friends, he acted as he did under the promise on Labarro's part to give him a peso for each such fire
that he should start.l awphi1 .net

The defendant Severino Valdes admitted, in an affidavit, that he made declarations in the police
station, although he denied having placed the rag and piece of jute sack, soaked with kerosene, in
the place where they were found, and stated, that it was the servant Paulino who had done so. He
alleged that, on being arraigned, he stated that he had set fire to a pile of dry mango leaves that he
had gathered together, which is contrary to the statement he made in the police station, to wit, that
he had set the fire to the said rag and piece of sack under the house.

For lack of evidence and on his counsel's petition, the case was dismissed with respect to the other
defendant Hugo Labarro.

Owing to the repeated attempts made for about a month past, since Severino Valdes Began to serve
the Lewin family, to burn the house above mentioned. occupied by the latter and in which this
defendant was employed, some policemen were watching the building and one of them, Antonio
Garcia del Cid., one morning prior to the commission of the crime, according to his testimony, saw
the defendant Valdes climbing up the wall of the warehouse behind the dwelling house, in which
warehouse there was some straw that had previously been burned, and that, when the defendant
noticed the presence of the policeman, he desisted from climbing the wall and entering the
warehouse.

The fact of setting fire to a jute sack and a rag, soaked with kerosene oil and placed beside an
upright of the house and a partition of the entresol of the building, thus endangering the burning of
the latter, constitutes the crime of frustrated arson of an inhabited house, on an occasion when some
of its inmates were inside of it.. This crime of provided for and punished by article 549, in connection
with articles 3, paragraph 2, and 65 of the Penal Code, and the sole proven perpetrator of the same
by direct participation is the defendant Severino Valdes, for, notwithstanding his denial and
unsubstantiated exculpations, the record discloses conclusive proof that it was he who committed
the said unlawful act, as it was also he who was guilty of having set the other fires that occurred in
said house. In an affidavit the defendant admitted having made declarations in the police station,
and though at the trial he denied that he set fire to the sacks and the rag which were found soaked in
kerosene and burning, and, without proof whatever, laid the blame unto his codefendant, the fact is
that confessed to having set fire to a pile of dry leaves whereby much smoke arose from the lower
part of the house, but which, however, did not forewarn his mistress, Mrs. Lewin, though she should
have noticed it, and he allowed the sack and the rag to continue burning until Mrs. Auckback noticing
a large volume of smoke in the house, gave the alarm. No proof was submitted to substantiate the
accusation he made against the servant Paulino, who apparently is the same persons as the driver
Hugo Labarro.

The crime is classified only as frustrated arson, inasmuch as the defendant performed all the acts
conceive to the burning of said house, but nevertheless., owing to causes independent of his will, the
criminal act which he intended was not produced. The offense committed cannot be classified as
consummated arson by the burning of said inhabited house, for the reason that no part of the
building had yet commenced to burn, although, as the piece of sack and the rag, soaked in kerosene
oil, had been placed near partition of the entresol, the partition might have started to burn, had the
fire not been put out on time.

There is no extenuating or aggravating circumstance to be considered in a connection with the

commission of the crime, and therefore the penalty of presidio mayor immediately inferior in degree
to that specified in article 549 of the Penal Code, should be imposed in its medium degree.

For the foregoing reasons the judgment appealed from should be affirmed, with the modification
however, that the penalty imposed upon the defendant shall be given eight years and one day
of presidio mayor, with the accessory penalties prescribed in article 57 of the Code. The defendant
shall also pay the costs of both instances. So ordered.

G.R. No. 209464 July 1, 2015

DANDY L. DUNGO and GREGORIO A. SIBAL, JR., Petitioners,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

MENDOZA, J.:

The fraternal contract should not be signed in blood, celebrated with pain, marred by injuries, and
perpetrated through suffering. That is the essence of Republic Act (R.A.) No. 8049 or the Anti-
Hazing Law of 1995.

This is a petition for review on certiorari seeking to reverse and set aside the April 26, 2013
Decision1 and the October 8, 2013 Resolution2 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
05046, which affirmed the February 23, 2011 Decision3 of the Regional Trial Court, Branch 36,
Calamba City (RTC). The RTC found petitioners Dandy L. Dungo (Dungo) and Gregorio A. Sibal, Jr.
(Sibal), guilty beyond reasonable doubt of the crime of violation of Section 4 of R.A. No. 8049, and
sentenced them to suffer the penalty of reclusion perpetua.
 The Facts

On February 1, 2006, the Office of the City Prosecutor of Calamba, Laguna, filed the
Information4 against the petitioners before the R TC, the accusatory portion of which reads: That on
or about 2:30 in the early morning of January 14, 2006, at Villa Novaliches, Brgy. Pansol, Calamba
,City, Province of Laguna and within the jurisdiction of the Honorable Court, the above-named
accused, during an initiation rite and being then members of Alpha Phi Omega fraternity and present
thereat, in conspiracy with more or less twenty other members and officers, whose identity is not yet
known, did then and there willfully, unlawfully and feloniously assault and use personal violence
upon one M4-RLON VILLANUEVA y MEJILLA, a neophyte thereof and as condition for his
admission to the fraternity, thereby subjecting him to physical harm, resulting to his death, to the
damage and prejudice of the heirs of the victim.

CONTRARY TO LAW.

On February 7, 2006, upon motion, the RTC admitted the Amended Information 5 which reads:

That on or about 2:30 in the early morning of January 14, 2006, at Villa Novaliches, Brgy. Pansol,
Calamba City, Province of Laguna and within the jurisdiction of the Honorable Court, the above-
name accused, during a planned initiation rite and being then officers and members of Alpha Phi
Omega fraternity and present thereat, in conspiracy with more or less twenty other members and
officers, whose identity is not yet known, did then and there willfully, unlawfully and feloniously
assault and use personal violence upon one MARLON VILLANUEVA y MEJILLA, a neophyte thereof
and as condition for his admission to the fraternity, thereby subjecting him to physical harm, resulting
to his death, to the damage and prejudice of the heirs of the victim. CONTRARY TO LAW.

On February 7, 2006, Dungo filed a motion to quash for lack of probable cause, 6 but it was denied by
the trial court because the ground cited therein was not provided by law and jurisprudence. When
arraigned, the petitioners pleaded not guilty to the crime charged. 7 Thereafter, trial ensued.

Version of the Prosecution

The prosecution presented twenty (20) witnesses to prove the crime charged. Their testimonies are
summarized as follows:

At around 3:20 o'clock in the morning of January 14, 2006, the victim Marlon Villanueva (Villanueva)
was brought to the emergency room of Dr. Jose P. Rizal District Hospital (JP Rizal Hospital). Dr.
Ramon Masilungan (Dr. Masilungan), who was then the attending physician at the emergency room,
observed that Villanueva was motionless, not breathing and had no heartbeat. Dr. Masilungan tried
to revive Villlanueva for about 15 to 30 minutes. Villanueva, however, did not respond to the
resuscitation and was pronounced dead. Dr. Masilungan noticed a big contusion hematoma on the
left side of the victim's face and several injuries on his arms and legs. He further attested that
Villanueva 's face was cyanotic, meaning that blood was no longer running through his body due to
lack of oxygen; and when he pulled down Villanueva's pants, he saw large contusions on both legs,
which extended from the upper portion of the thighs, down to the couplexial portion, or back of the
knees.

Dr. Masilungan disclosed that two (2) men brought Villanueva to the hospital. The two told him that
they found Villanueva lying motionless on the ground at a store in Brgy. Pansol, Calamba City, and
brought him to the hospital. When he asked them where they came from, one of them answered that
they came from Los Baños, Laguna, en route to San Pablo City. He questioned them on how they
found Villanueva, when the latter was in Brgy. Pansol, Calamba City. One of the men just said that
they were headed somewhere else.

Dr. Masilungan reduced his findings in a medico-legal report.8 Due to the nature, extent and location
of the injuries, he opined that Villanueva was a victim of hazing. He was familiar with hazing injuries
because he had undergone hazing himself when he was a student, and also because of his
experience in treating victims of hazing incidents.

Dr. Roy Camarillo (Dr. Camarillo), Medico-Legal Officer of the Philippine National Police Crime
Laboratory (PNP-CL) in Region IV, Camp Vicente Lim, Canlubang, Calamba City, testified that he
performed an autopsy on the body of Villanueva on January 14, 2006 and placed down his findings
in an autopsy report.9 Upon examination of the body, he found various external injuries in the head,
trunk and extremities. There were thirty-three (33) external injuries, with various severity and nature.
He concluded that the cause of death was subdural hemorrhage due to head injury contusion-
hematoma. Based on multiple injuries and contusions on the body, and his previous examinations of
hazing injuries, Dr. Camarillo opined that these injuries were hazing-related. During the autopsy, he
retrieved two (2) matchsticks from the cadaver with the marking of Alpha Phi Omega (APO)
Fraternity.10

Susan Ignacio (Ignacio) was the owner of the sari-sari store located at Purok 5, Pansol, Calamba
City, in front of Villa Novaliches Resort, which was barely ten steps away. On January 13, 2006, at
around 8:30 to 9:00 o'clock in the evening, she was tending her store when she saw a jeepney with
more than twenty (20) persons arrive at the resort. Ignacio identified Dungo as the person seated
beside the driver of the jeepney.11 She estimated the ages of these persons in the group to be
between 20 to 30 years old. They were in civilian clothes, while the other men wore white long-
sleeved shirts. Before entering the resort, the men and women shook hands and embraced each
other. Three (3) persons, riding on a single motorcycle, also arrived at the resort.

Ignacio saw about fifteen (15) persons gather on top of the terrace of the resort who looked like they
were praying, and then the lights of the resort were turned off. Later that evening, at least three (3) of
these persons went to her store to buy some items. During her testimony, she was shown
photographs and she identified Christopher Braseros and Sibal as two of those who went to her
store.12 It was only on the morning of January 14, 2006 that she learned from the policemen visiting
the resort that the deceased person was Villanueva.

Donato Magat (Magat), a tricycle driver plying the route of Pansol, Calamba City, testified that at
around 3:00 o'clock in the morning of January 14, 2006, he was waiting for passengers at the comer
of Villa Novaliches Resort. A man approached him and told him that someone inside the resort
needed a ride. Magat went to the resort and asked the two (2) men at the gate who needed a ride.
Afterwards, he saw three (3) men in their 20's carrying another man, who looked very weak, like a
vegetable, towards his tricycle. Magat touched the body of the man being carried and sensed it was
cold.

Magat asked the men what happened to their companion. They replied that he had too much to
drink. Then they instructed Magat to go to the nearest hospital. He drove the tricycle to JP Rizal
Hospital. Upon their arrival, two of his passengers brought their unconscious companion inside the
emergency room, while their other companion paid the tricycle fare. Magat then left to go home.
Several days after, he learned that the person brought to the hospital had died.

Abelardo Natividad (Natividad) and Seferino Espina y Jabay (Espina) were the security guards on
duty at JP Rizal Hospital, from 11 :00 o'clock in the evening of January 13, 2006 until 7:00 o'clock in
the morning of January 14, 2006. In the early morning of January 14, 2006, two men, who signed on
the logbook13 under the names Brandon Gonzales and Jerico Paril, brought the lifeless body of a
person. Pursuant to the standard operating procedure of the hospital, the security guards did not
allow the two men to leave the hospital because they called the police station .so that an
investigation could be conducted. Two policemen arrived later at the hospital. During his testimony,
Natividad identified Sibal and Dupgo as the two persons who brought Villanueva to the hospital.

PO2 Alaindelon Ignacio (P02 Ignacio). testified that on January 14, 2006 at around 3:30 o'clock in
the early morning, Natividad called up the PNP Calamba City Station to report that a lifeless body of
a man was brought to JP Rizal Hospital. When P02 Ignacio arrived, he saw Villanueva' s corpse with
contusions and bite marks all over his body. P02 Ignacio and his policemen companions then
brought Dungo and Sibal to the police station. He asked them about what happened, but they
invoked their right to remain silent. The policemen then proceeded to Brgy. Pansol at around 9:00
o'clock in the morning. After finding Villa Novaliches Resort, they knocked on the door and the
caretaker, Maricel Capillan (Capillan), opened it.

The police asked Capillan if there were University of the Philippines Los Baños (UP Los Baños)
students who rented the resort on the evening of January 13, 2006. Capillan said yes and added that
about twenty (20) persons arrived onboard a jeepney and told her that they would be renting the
resort from 9:30 o'clock in the evening up to 7:00 o'clock the following morning.

Gay Czarina Sunga (Sunga) was a food technology student at UP Los Baños during the academic
year of 2005-2006 and a member of the Symbiosis UPLB Biological Society. Around 3:00 o'clock in
the afternoon of January 13, 2006, she was at their organization's tambayan in the UPLB Biological
Sciences Building, when she noticed three (3) men seated two meters away from her. She identified
the two of the three men as Sibal and Dungo.14 They were wearing black shirts with the logo of APO.
Later at 5:00 o'clock in the afternoon, two more men arrived and, with their heads bowed,
approached the three men. One of them was Villanueva, who was carrying a 5-gallon water
container. Dungo then stood up and asked Villanueva why the latter did not report to him when he
was just at their tambayan. Dungo then punched Villanueva twice, but the latter just kept quiet with
his head bowed. Fifteen minutes later, all the men left.

Joey Atienza (Atienza) had been a good friend of Villanueva since 2004. They were roommates at
the UP Los Baños Men's Dormitory and housemates at the DPS Apartment in Umali Subdivision,
Los Baños, Laguna. According to Atienza, on January 9, 2006, Villanueva introduced him to Daryl
Decena (Decena) as his APO - Theta Chapter batchmate, who was also to undergo final initiation
rites on January 13, 2006.

Severino Cuevas, Director of the Students Affairs at UP Los Baños, testified that Dungo and Sibal
were both members of the APO Fraternity, and that there was no record of any request for initiation
or hazing activity filed by the said fraternity.

McArthur Padua of the Office of the Registrar, UP Los Baños, testified that Villanueva was a B.S.
Agricultural Economics student at the UP Los Baños,15 as evidenced by his official transcript of
record.16

Atty. Eleno Peralta and Dina S. Carlos, officers of the Student Disciplinary Tribunal (SDT) of the UP
Los Baños, testified that an administrative disciplinary case was filed on March 31, 2006 against the
APO Fraternity regarding the death of Villanueva. They confirmed that Capilla of Villa Novaliches
Resort and Irene Tan (Tan) of APO Sorority Theta Chapter appeared as witnesses for the
complainant.17
Roman Miguel De Jesus, UP - Office of the Legal Aid (UP-OLA) supervising student, testified that he
met Tan of the APO Sorority sometime between July and August 2006 in UP Diliman: to convince
her to testify in the criminal case. Tan, however, refused because she feared for her safety. She said
that after testifying in the SDT hearing, her place in Imus, Cavite was padlocked and vandalized.

Evelyn Villanueva, mother of victim Villanueva, testified that, as a result of the death of her son, her
family incurred actual damages consisting of medical, burial and funeral expenses in the aggregate
amount of ₱140,000.00 which were evidenced by receipts.18 Her husband also incurred travel
expenses in the amount of ₱7,000.00 in returning to the Philippines to attend his son's wake and
burial, as supported by a plane ticket.19 She further attested that she experienced mental anguish,
sleepless nights, substantial weight loss, and strained family relationship as a result of her son's
death.

Version of the Defense

The defense presented seven (7) witnesses to prove the innocence of the petitioners. Their
testimonies are summarized as follow:

Richard Cornelio (Cornelio), an APO Fraternity member, testified that on January 13, 2006, around
4:00 to 4:30 o'clock in the afternoon, he met Dungo at the UP Los Baños Graduate School. Dungo
asked him if he would attend the initiation ceremony, and Cornelio answered in the negative
because he had other things to do. At 10:00 o'clock in the evening of the same day, Cornelio again
met Dungo and his girlfriend while eating a hamburger at the Burger Machine along Raymundo
Street, Umali Subdivision, Los Baños, Laguna (Raymundo Street). He asked Dungo if he would
attend the initiation ceremony. Dungo replied that he would not because he and his girlfriend had
something to do.

Ana Danife Rivera (Rivera), the girlfriend of Dungo, testified that on January 13, 2006 at around 1
:00 o'clock in the afternoon, Dungo came and visited her at her boarding house on Raymundo
Street. Around 4:00 o'clock of the same afternoon, they went to the UP Los Baños Graduate School
and saw Cornelio. Afterwards, they went back to her boarding house and stayed there from 5:00
o'clock in the afternoon to 7:00 o'clock in the evening. Then, they went to Lacxo Restaurant for
dinner and left at around 10:00 o'clock in the evening. On their way back to her boarding house, they
encountered Cornelio again at the Burger Machine. Dungo then stayed and slept at her boarding
house. Around 2:00 o'clock in the early morning of January 14, 2006, they were roused from their
sleep by a phone call from Sibal, asking Dungo to go to a resort in Pansol, Calamba City. Dungo
then left the boarding house.

Dungo testified that around 1:00 o'clock in the early afternoon of January 13, 2006, he arrived at the
boarding house of his girlfriend, Rivera, on Raymundo Street. At around 4:00 o'clock in the
afternoon, they went to the UP Los Baños Graduate School and inquired about the requirements for
a master's degree. They walked back to the boarding house and met Cornelio. They talked about
their fraternity's ,final initiation ceremony for that night in Pansol, Calamba City. Dungo and Rivera
then reached the latter's boarding house around 5:00 o'clock in the afternoon. At around 7:00 o'clock
in the evening, they went out for dinner at the Lacxo Restaurant, near Crossing Junction, Los Baños.
They ate and stayed at the restaurant for at least one and a half hours. Then they walked back to the
boarding house of Rivera and, along the way, they met Cornelio again at the Burger Machine along
Raymundo Street. Cornelio asked Dungo if he would attend their fraternity's final initiation ceremony,
to which he replied in the negative. Dungo and Rivera reached the boarding house around 9:00
o'clock in the evening and they slept there.
Around 2:00 o'clock in the early morning of January 14, 2006, Dungo was roused from his sleep
because Sibal was palling him on his cellphone. Sibal asked for his help, requesting him to go to
Villa Novaliches Resort in Pansol, Calamba City. Upon Dungo 's arrival at the resort, Sibal led him
inside. There, he saw Rudolfo Castillo (Castillo), a fellow APO fraternity brother, and Villanueva, who
was unconscious. Dungo told them that they should bring Villanueva to the hospital. They all agreed,
and Castillo called a tricycle that brought them to JP Rizal Hospital. He identified himself before the
security guard as Jerico Paril because he was scared to tell his real name.

Gilbert Gopez (Gopez) testified that he was the Grand Chancellor of the APO -Theta Chapter for
years 2005-2006. At around 7:00 o'clock in the evening of January 13, 2006, he was at the
tambayan of their fraternity in UP Los Baños because their neophytes would be initiated that night.
Around 8:30 o'clock in the evening, they met their fraternity brothers in Bagong Kalsada, Los Baños.
He noticed that their neophyte, Villanueva, was with Castillo and that there was a bruise on the left
side of his face. Then they boarded a jeepney and proceeded to Villa Novaliches Resort in Pansol,
Calamba City. There, Gopez instructed Sibal to take Villanueva to the second floor of the resort. He
confronted Castillo as to what happened to Villanueva. Around 11:00 or 11:30 o'clock in the evening,
Gopez decided to cancel the final rites. He told Sibal to stay at the resort and accompany Villanueva
and Castillo. Together with the other neophytes, Gopez left the resort and went back to UP Los
Baños.

Sibal testified that he was a DOST Scholar at the UP Los Baños from 2002 to 2006, taking up B.S.
Agricultural Chemistry. He was a Brother Actuary of the APO - Theta Chapter, and was in charge of
fraternity activities, such as tree planting, free medical and dental missions, and blood donations. On
January 13, 2006, at around 6:00 o'clock in the evening, he was at the fraternity's tambayan for the
final initiation rites of their neophytes. After preparing the food for the initiation rites, Sibal, together
with some neophytes, went to Bagong Kalsada, Los Baños, where he saw fellow fraternity brother
Castillo with their neophyte Villanueva, who had a bruised face. Thereafter, they boarded a jeepney
and proceeded to Villa Novaliches Resort in Pansol, Calamba City. Once inside the resort, he
accompanied Villanueva upstairs for the latter to take a rest. A few minutes later, he went down and
confronted Castillo about the bruises on Villanueva's face. He was angry and irritated with Castillo.
He then stayed outside the resort until Gopez and the other neophytes came out and told him that
the final initiation rite was cancelled, and that they were returning to UP Los Baños. Sibal wanted to
go with them but ;he was ordered to stay with Villanueva and Castillo.

After the group of Gopez left, Sibal checked on the condition of Villanueva, who was sleeping on the
second; floor of the resort. Then he went outside for one hour, or until 1 :00 o 'dock in the early
morning of January 14, 2006. Sibal entered the resort again and saw Villanueva, who looked
unconscious, seated in one of the benc6es on the ground floor. Sibal inquired about Villanueva's
condition but he was ignored by Castillo. He then called Dungo for help. After Dungo arrived at the
resort, they hailed a tricycle and brought Villanueva to JP Rizal Hospital. There, he gave a false
name to the security guard as he heard that Dungo had done the same.

The RTC Ruling

On February 23, 2011, the RTC found Dungo and Sibal guilty of the crime of violating Section 4 of
the Anti-Hazing Law and sentenced them to suffer the penalty of reclusion perpetua. The trial court
stated that the prosecution established the presence of Dungo and Sibal (1) at the UP Los Banos
Campus on January 13, 2006 around 3:00 o'clock in the afternoon, by the testimony of Sunga and
(2) at the Villa Novaliches Resort around 9:00 o'clock in the evening of the same day by the
testimony of Ignacio. With the extensive testimonies of Dr. Masilungan and Dr. Camarillo, the
prosecution also proved that Villanueva died from hazing injuries.
According to the RTC, the evidence of the prosecution undeniably proved that Villanueva, a UP Los
Bafios student, was a neophyte of the APO - Theta Chapter Fraternity; that Dungo and Sibal were
members of the said fraternity; that on the evening of January 13, 2006, Dungo and Sibal, together
with the other fraternity members, officers and alumni, brought and transported Villanueva and two
other neophytes to Villa Novaliches Resort at Barangay Pansol, Calamba City, for the final initiation
rites; that the initiation rites were conducted inside the resort, performed under the cover of darkness
and secrecy; that due to the injuries sustained by Villanueva, the fraternity members and the other
two neophytes haphazardly left the resort; and that Dungo and Sibal boarded a tricycle and brought
the lifeless body of Villanueva to JP Rizal Hospital, where Villanueva was pronounced dead.

The RTC explained that even if there was no evidence that Dungo and Sibal participated to bodily
assault and harm the victim, it was irrefutable that they brought Villanueva to the resort for their final
initiation rites. Clearly, they did not merely induce Villanueva to attend the final initiation rites, but
they also brought him to Villa Novaliches Resort.

The RTC held that the defense of denial and alibi were self-serving negative assertions. The
defense of denial and alibi of Dungo, which was corroborated by the testimony of his girlfriend
Rivera and his co-fraternity brother, could not be given credence. The witnesses presented by the
defense were partial and could not be considered as disinterested parties. The defense of denial of
Sibal likewise failed. The corroborative testimonies of his fraternity brothers were suspect because
they had so much at stake in the outcome of the criminal action.

The decretal portion of the decision reads:

WHEREFORE, the Court finds the accused Dandy Dungo and Gregorio Sibal GUILTY of violating
Section 4 of the Anti-Hazing Law and sentenced them to suffer the penalty of RECLUSION
PERPETUA and order them to jointly and severally pay the family /heirs of Deceased Marlon
Villanueva the following sums of money:

1. ₱141,324.00 for and as actual damages;

2. ₱200,000.00 for and as moral damages;

3. ₱100,000.00 for and as exemplary damages; and

4. ₱50,000.00 for the death of Marlon Villanueva.

SO ORDERED.20

Aggrieved, the petitioners filed a notice of appeal. In their brief, they contended that the prosecution
failed to establish their guilt beyond reasonable doubt for violating R.A. No. 8049. They also assailed
the constitutionality of Section 4 of the said law, which stated that mere presence in the hazing was
prima facie evidence of participation therein, because it allegedly violated the constitutional
presumption of innocence of the accused.

The CA Ruling

The CA ruled that the appeal of Dungo and Sibal was bereft of merit. It stated that, in finding them
guilty of violating R.A. No. 8049, the RTC properly relied on circumstantial evidence adduced by the
prosecution. The CA painstakingly discussed the unbroken chain of circumstantial evidence to
convict Dungo and Sibal as principals in the crime of hazing.
It further found that the defense of denial and alibi of Dungo and Sibal failed to cast doubt on the
positive identification made by the prosecution witnesses; and that denial, being inherently weak,
could not prevail over the positive identification of the accused as the perpetrators of the crime. The
CA also stated that Dungo and Sibal were not only convicted based on their presence in the venue
of the hazing, but also in their act of bringing the victim to Villa Novaliches Resort for the final
initiation rites.

The dispositive portion of the decision reads:

WHEREFORE, premises considered, the February 23, 2011 Decision of the Regional Trial Court,
Branch 36 of Calamba City in CRIM. Case No. 13958-2006-C, finding accused-appellant guilty
beyond reasonable doubt of Violation of R.A. 8049 is hereby AFFIRMED in TOTO.

SO ORDERED.21

Dungo and Sibal moved for reconsideration but their motion was denied by the CA in the assailed
October 8, 2013 Resolution.

Hence, this petition.

SOLE ASSIGNMENT OF ERROR HE JUDGMENTS OF THE RTC AND THE CA A QUO

CONSTITUTE A VIOLATION OF THE CONSTITUTIONAL RIGHT OF THE ACCUSED TO BE
INFORMED OF THE NATURE AND CAUSE OF ACCUSATION AGAINST THEM BECAUSE THE
OFFENSE PROVED AS FOUND AND PRONOUNCED THEREBY IS DIFFERENT FROM THAT
CHARGED IN THE INFORMATION, NOR DOES ONE INCLUDE OR NECESSARILY INCLUDE
THE OTHER.22

Petitioners Dungo and Sibal argue that the amended information charged them as they "did then and
there willfully, unlawfully and feloniously assault and use personal violence upon one Marlon
Villanueva y Mejilla."23 Yet, both the RTC and the CA found them guilty of violating R.A. No. 8049
because they "[i]nduced the victim to be present" 24during the initiation rites. The crime of hazing by
inducement does not necessarily include the criminal charge of hazing by actual participation. Thus,
they cannot be convicted of a crime not stated or necessarily included in the information. By reason
of the foregoing, the petitioners contend that their constitutional right to be informed of the nature
and cause of accusation against them has been violated.

In its Comment,25 filed on May 23, 2014, the Office of the Solicitor General (DSG) asserted that
Dungo and Sibal were charged in the amended information with the proper offense and convicted for
such. The phrases "planned initiation" and "in conspiracy with more or less twenty members and
officers" in the amended information sufficiently cover "knowingly cooperated in carrying out the
hazing by inducing the victim to be present thereat." The planned initiation rite would not have been
accomplished were it not for the acts of the petitioners in inducing the victim to be present thereat
and it was obviously conducted in conspiracy with the others.26 In their Reply27 filed on September 10,
2014, Dungo and Sibal insisted that there was a variance between the, offense charged of "actually
participated in the infliction of physical harm," and the offense "knowingly cooperated in carrying out
the hazing by inducing the victim to be present thereat." 28 The prosecution, moreover, failed to
establish conspiracy because no act or circumstance was proved pointing to a joint purpose and
design between and among the petitioners and the other twenty accused.

The Court's Ruling

The petition lacks merit.

 Procedural Matter

An appeal is a proceeding undertaken to have a decision reconsidered by bringing it to a higher

court authority.29The right to appeal is neither a natural right nor is it a component of due process. It
is a mere statutory privilege, and may be exercised only in the manner and in accordance with the
provisions of law.30

Section 13(c), Rule 124 of the Revised Rules of Criminal Procedure, as amended by A.M. No. 00-5-
03, dated October 15, 2004, governs the procedure on the appeal from the CA to the Court when the
penalty imposed is either reclusion perpetua or life imprisonment. 31 According to the said provision,
"[i]n cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser
penalty, it shall render and enter judgment imposing such penalty. The judgment may be appealed
to the Supreme Court by notice of appeal filed with the Court of Appeals."

Hence, an accused, upon whom the penalty of reclusion perpetua or life imprisonment had been
imposed by the CA, can simply file a notice of appeal to allow him to pursue an appeal as a matter of
right before the Court. An appeal in a criminal case opens the entire case for review on any question
including one not raised by the parties.32Section 13(c), Rule 124 recognizes the constitutionally
conferred jurisdiction of the Court in all criminal cases in which the penalty imposed is reclusion
perpetua or higher.33

An accused, nevertheless, is not precluded in resorting to an appeal by certiorari to the Court via
Rule 45 under the Rules of Court. An appeal to this Court by petition for review on certiorari shall
raise only questions of law.34Moreover, such review is not a matter of right, but of sound judicial
discretion, and will be granted only when there are special and important reasons. 35 In other words,
when the CA imposed a penalty of reclusion perpetua or life imprisonment, an accused may: (1) file
a notice of appeal under Section 13( c ), Rule 124 to avail of an appeal as a matter of right before
the Court and open the entire case for review on any question; or (2) file a petition for review on
certiorari under Rule 45 to resort to an appeal as a matter of discretion and raise only questions of
law.

In this case, the CA affirmed the R TC decision imposing the penalty of reclusion perpetua upon the
petitioners. The latter opted to appeal the CA decision via a petition for certiorari under Rule 45.
Consequently, they could only raise questions of law. Oddly, the petitioners began to assail the
existence of conspiracy in their reply,36 which is a question of fact that would require an examination
of the evidence ;presented. In the interest of justice, however, and due to the novelty of the issue
presented, the Court deems it proper to open the whole case for review.37Substantive Matter

In our contemporary society, hazing has been a nightmare of parents who send their children to
college or university. News of deaths and horrible beatings primarily among college students due to
hazing injuries continue to haunt us. Horrid images of eggplant-like buttocks and thighs and pounded
arms and shoulders of young men are depicted as a fervent warning to those who dare undergo the
hazing rites. The meaningless death of these promising students, and the agony, cries and ordeal of
their families, resonate through the very core of our beings. But no matter how modem and
sophisticated our society becomes, these barbaric acts of initiation of fraternities, sororities and other
organizations continue to thrive, even within the elite grounds of the academe.

The history and phenomenon of hazing had been thoroughly discussed in the recent case of
Villareal v. People.38 It is believed that the fraternity system and its accompanying culture of hazing
were transported by the Americans to the Philippines in the late 19th century.39 Thus, a study of the
laws and jurisprudence of the United States (US) on hazing can enlighten the current predicament of
violent initiations in fraternities, sororities and other organizations.
 United States Laws and
Jurisprudence on Hazing

There are different definitions of hazing, depending on the laws of the states. 40 In the case of People
v. Lenti,41 the defendant therein challenged the constitutionality of the state law defining hazing on
the ground of vagueness. The court rejected such contention and held that it would have been an
impossible task if the legislature had attempted to define hazing specifically

because fraternal organizations and associations never suffered for ideas in contriving new forms of
hazing. Presently, the acceptable definition of hazing is the practice of physically or emotionally
abusing newcomers to an organization as a means of initiation. 42

Hazing can be classified into various categories including, but not limited to, acts of violence, acts of
humiliation, sexual-related acts, and alcohol-related acts.43 The physical form of hazing may include
beating, branding, paddling, excessive exercise, drinking, and using drugs. Sexual hazing have
included simulated sex acts, sodomy and forced kissing.44 Moreover, hazing does not only result in
physical injuries and hospitalization, but also lead to emotional damage and traumatic stress.45

Based on statistics and alarming frequency of hazing, states have attempted to combat hazing
through the passage of state laws that prohibit such acts.46 Forty-four states, with the exception of
Alaska, Hawaii, Montana, New Mexico, South Dakota, and Wyoming, have passed anti-hazing
laws.47 The severity of these laws can range from minor penalties to a prison sentence for up to six
years.48 In the states of Illinois, Idaho, Missouri, Texas, Virginia, Wisconsin, hazing that result in
death or "great bodily harm" is categorized as a felony.49

In Florida, the Chad Meredith Act,50 a law named after a student who died in a hazing incident, was
enacted on July 1, 2005. It provides that a person commits a third degree felony when he or she
intentionally or recklessly commits any act of hazing and the hazing results in serious bodily injury or
death. If a person only creates substantial risk of physical injury or death, then hazing is categorized
as a first degree misdemeanor. A similar provision can be observed in the Penal Law of New York.51

Interestingly, some states included notable features in their anti-hazing statute to increase its
effectiveness. In Alabama, Arkansas, Massachusetts, New Hampshire, South Carolina and Texas,
the law imposes a duty on school personnel to report hazing.52 In fact, in Alabama, no person is
allowed to knowingly permit, encourage, aid, or assist any person in committing the offense of
hazing, or willfully acquiesces in its commission.53

Also, some states enacted statutes that have been interpreted to mean that persons are guilty of
hazing even if they have the consent of the victim.54 In New Jersey, consent is not a defense to a
hazing charge, and its law permits the prosecution of offenders under other applicable criminal
statutes.55 By including these various provisions in their anti-hazing statutes, these states have
removed the subjective inquiry of consent from consideration, thus, presumably allowing courts to
effectively and properly adjudicate hazing cases.56

In the US, hazing victims can either file a criminal action, based on anti-hazing statutes, or a civil
suit, arising from tort law and constitutional law, against the members of the local fraternity, the
national fraternity and even against the university or college concerned. 57 Hazing, which threatens to
needlessly harm students, must be attacked from whatever legal means are possible.58

In State v. Brown,59 a member of the Alpha Kappa Alpha at Kent State University was indicted for
complicity to hazing. The group physically disciplined their pledges by forcing them to stand on their
heads, beating them with paddles, and smacking and striking initiates in the face and head. The
Ohio court held that evidence presented therein was more than sufficient to sustain a conviction.

Excessive intake of alcohol in the fraternity initiations can be considered as hazing. In Oja v. Grand
Chapter of Theta Chi Fraternity Inc.,60 a 17-year old college freshman died as a result of aspirating
his own vomit after consuming excessive amounts of alcohol in a fraternity initiation ritual. The
defendants in the said case contended that they only furnished the alcohol drinks to the victim. The
court denied the defense because such acts of the fraternity effectively contributed to the death of
the victim as part of their hazing.

Even in high school, hazing could exist. In Nice v. Centennial Area School District, 61 a tenth-grade
wrestler at William Tennet High School was subjected to various forms of hazing, including; a ritual
where the victim was forcibly held down, while a teammate sat on his face with his buttocks
exposed. The parents of the student sued the school because it failed to prevent the incident despite
its knowledge of the hazing rites. The court approved the settlement of the parties in the amount
ofUS$151,000.00.

More recently, the case of Yost v. Wabash College62 involved the hazing of an 18-year old freshman,
who suffered physical and mental injuries in the initiation rites conducted by the Phi Kappa Psi
fraternity. As a pledge, the victim was thrown into a creek and was placed in a chokehold, until he
lost consciousness. The court upheld that action against the local fraternity because, even if the
student consented, the fraternity had the duty to ensure the safety of its activities.

The US anti-hazing laws and jurisprudence show that victims of hazing can properly attain redress
before the court. By crafting laws and prosecuting offenders, the state can address the distinct
dilemma of hazing.

Anti-Hazing Law in the

Philippines

R.A. No. 8049, or the Anti-Hazing Law .of 1995, has been enacted to regulate hazing and other
forms of initiation rites in fraternities, sororities, and other organizations. It was in response to the
rising incidents of death of hazing victims, particularly the death of Leonardo "Lenny" Villa. 63 Despite
its passage, reports of deaths resulting from i hazing continue to emerge. Recent victims were Guillo
Servando of the College of St. Benilde, Marc Andre Marcos and Marvin Reglos of the San', Beda
College - Manila, and Cris Anthony Mendez of the University of the Philippines - Diliman. With the
continuity of these senseless tragedies, one question implores for an answer: is R.A. No. 8049 a
sufficient deterrent against hazing?

To answer the question, the Court must dissect the provisions of the law and scrutinize its effect,
implication and application.

Criminal law has long divided crimes into acts wrong in themselves called acts mala in se; and acts
which would not be wrong but for the fact that positive law forbids them, called acts mala prohibita.
This distinction is important with reference to the intent with which a wrongful act is done. The rule
on the subject is that in acts mala in se, the intent governs; but in acts mala prohibita, the only
inquiry is, has the law been violated? When an act is illegal, the intent of the offender is
immaterial.64 When the doing of an act is prohibited by law, it is considered injurious to public welfare,
and the doing of the prohibited act is the crime itself.65

A common misconception is that all mala in se crimes are found in the Revised Penal Code (RPC),
while all mala prohibita crimes are provided by special penal laws. In reality, however, there may be
mala in se crimes under special laws, such as plunder under R.A. No. 7080, as amended. 66 Similarly,
there may be mala prohibita crimes defined in the RPC, such as technical malversation. 67

The better approach to distinguish between mala in se and mala prohibita crimes is the
determination of the inherent immorality or vileness of the penalized act. If the punishable act or
.omission is immoral in itself, then it is a crime mala in se,- on the contrary, if it is not immoral in
itself, but there is a statute prohibiting its commission b)". reasons of public policy, then it is mala
prohibita. In the final analysis, whether or not a crime involves moral turpitude is ultimately a
question of fact and frequently depends on all the circumstances surrounding the violation of the
statute.68

The crime of hazing under R.A. No. 8049 is malum prohibitum. The Senate deliberations would
show that the lawmakers intended the anti-hazing statute to be ma/um prohibitum, as follows:
SENATOR GUINGONA: Most of these acts, if not all, are already punished under the Revised Penal
Code.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA If hazing is done at present and it results in death, the charge would be
murder or homicide.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. If it does not result in death, it may be frustrated homicide or serious
physical injuries.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. Or, if the person who commits sexual abuse does so it can be penalized
under rape or acts of lasciviousness.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. So, what is the rationale for making a new offense under this definition of
the crime of hazing?

SENATOR LINA. To discourage persons or group of persons either composing a sorority, fraternity
or any association from making this requirement of initiation that has already resulted in these
specific acts or results, Mr. President.

That is the main rationale. We want to send a strong signal across the land that no group or
association can require the act of physical initiation before a person can become a member without
being held criminally liable.

xxx xxx xxx

SENATOR GUINGONA. Yes, but what would be the rationale for that imposition? Because the
distinguished Sponsor has said that he is not punishing a mere organization, he is not seeking the
punishment of an initiation into a club or organization, he is seeking the punishment of certain acts
that resulted in death, etcetera as a result of hazing which are already covered crimes.
The penalty is increased in one, because we would like to discourage hazing, abusive hazing, but it
may be a legitimate defense for invoking two or more charges or offenses, because these very same
acts are already punishable under the Revised Penal Code

That is my difficulty, Mr. President.

SENATOR LINA. x x x

Another point, Mr. President, is this, and this is a very telling difference: When a person or group of
persons resort to hazing as a requirement for gaining entry into an organization, the intent to commit
a wrong is not visible or is not present, Mr. President. Whereas, in these specific crimes, Mr.
President, let us say there is death or there is homicide, mutilation, if one files a case, then the
intention to commit a wrong has to be proven. But if the crime of hazing is the basis, what is
important is the result from the act of hazing.

To me, that is the basic difference and that is what will prevent or deter the sororities or fraternities;
that they should really shun this activity called "hazing." Because, initially, these fraternities or
sororities do not even consider having a neophyte killed or maimed or that acts of lasciviousness are
even committed initially, Mr. President.

So, what we want to discourage, is the so-called initial innocent act. That is why there is need to
institute this kind of hazing. Ganiyan po ang nangyari. Ang fraternity o ang sorority ay magre-recruit.
Wala talaga silang intensiybng makamatay. Hindi ko na babanggitin at buhay pa iyong kaso. Pero
dito sa anim o pito na namatay nitong nakaraang taon, walang intensiyong patayin talaga iyong
neophyte. So, kung maghihintay pa tayo, na saka lamang natin isasakdal ng murder kung namatay
na, ay after the fact ho iyon. Pero, kung sasabihin natin sa mga kabataan na: "Huwag ninyong
gagawin iyong hazing. Iyan ay kasalanan at kung mamatay diyan, mataas ang penalty sa inyo."

xxx xxx xxx

SENATOR GUINGONA. I join the lofty motives, Mr. President, of the distinguished Sponsor. But I
am again disturbed by his statement that the prosecution does not have to prove the intent that
resulted in the death, that resulted in the serious physical injuries, that resulted in the acts of
lasciviousness or deranged mind. We do not have to prove the willful intent of the accused in proving
or establishing the crime of hazing. This seems, to me, a novel situation where we create the special
crime without having to go into the intent, which is one of the basic elements of any crime.

If there is no intent, there is no crime. If the intent were merely to initiate, then there is no offense.
And even the distinguished Sponsor admits that the organization, the intent to initiate, the intent to
have a new society or a new club is, per se, not punishable at all. What are punishable are the acts
that lead to the result. But if these results are not going to be proven by intent, but just because there
was hazing, I am afraid that it will disturb the basic concepts of the Revised Penal Code, Mr.
President.

SENATOR LINA. Mr. President, the act of hazing, precisely, is being criminalized because in the
context of what is happening in the sororities and fraternities, when they conduct hazing, no one will
admit that their intention is to maim or to kill. So, we are already criminalizing the fact of inflicting
physical pain. Mr. President, it is a criminal act and we want it stopped, deterred, discouraged.

If that occurs, under this law, there is no necessity to prove that the masters intended to kill or the
masters intended to maim. What is important is the result of the act of hazing. Otherwise, the
masters or those who inflict the physical pain can easily escape responsibility and say, "We did not
have the intention to kill. This is part of our initiation rites. This is normal. We do not have any
intention to kill or maim."

This is the lusot, Mr. President. They might as well have been charged therefore with the ordinary
crime of homicide, mutilation, etcetera, where the prosecution will have a difficulty proving the
elements if they are separate offenses.

xxx xxx xxx

SENATOR LINA. x x x

I am very happy that the distinguished Minority Leader brought out the idea of intent or whether it is
mala in se or mala prohibita. There can be a radical amendment if that is the point that he wants to
go to.

If we agree on the concept, then, maybe, we can just make this a special law on hazing. We will not
include this anymore under the Revised Penal Code. That is a possibility. I will not foreclose that
suggestion, Mr. President.69

[Emphases Supplied]

Having in mind the potential conflict between the proposed law and the core principle of mala in se
adhered to under the RPC, the Congress did not simply enact an amendment thereto. Instead, it
created a special law on hazing, founded upon the principle of mala prohibita. 70 In Vedana v.
Valencia,71 the Court noted that in our nation's very recent history, the people had spoken, through
the Congress, to deem conduct constitutive of hazing, an act previously considered harmless by
custom, as criminal.72 The act of hazing itself is not inherently immoral, but the law deems the same
to be against public policy and must be prohibited. Accordingly, the existence of criminal intent is
immaterial in the crime of hazing. Also, the defense of good faith cannot be raised in its
prosecution.73

Section 1 of R.A. No. 8049 defines hazing as an initiation rite or practice as a prerequisite for
admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or
applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly,
foolish and other similar tasks or activities or otherwise subjecting him to physical or psychological
suffering or injury. From the said definition, the elements of the crime of hazing can be determined:

1. That there is an initiation rite or practice as a prerequisite for admission into membership
in a fraternity, sorority or organization;

2. That there must be a recruit, neophyte or applicant of the fraternity, sorority or

organization; and

3. That the recruit, neophyte or applicant is placed in some embarrassing or humiliating

situations such as forcing him to do menial, silly, foolish and other similar tasks or activities
or otherwise subjecting him to physical or psychological suffering or injury.

From the said definition of hazing, it is apparent that there must be an initiation rite or practice
performed by the fraternities, sororities or organization. The law, however, did not limit the definition
of these groups to those formed within academic colleges and universities. 74 In fact, the second
paragraph of Section 1 provides that the term "organization" shall include any club or the Armed
Forces of the Philippines (AFP), Philippine National Police (PNP), Philippine Military Academy
(PMA), or officer and cadet corp of the Citizen's Military Training and Citizen's Army Training. Even
the president, manager, director or other responsible officer of a corporation engaged in hazing as a
requirement for employment are covered by the law.75 R.A. No. 8049 qualifies that the physical,
mental and psychological testing and training procedure and practices to determine and enhance the
physical, mental and psychological fitness of prospective regular members of the AFP and the PNP,
as approved by the Secretary of National Defense and the National Police Commission, duly
recommended by the Chief of Staff of the AFP and the Director General of the PNP, shall not be
considered as hazing.

And not all forms of initiation rites are prohibited by the law. Section 2 thereof provides that initiation
rites of fraternities, sororities or organizations shall be allowed provided that the following requisites
are met:

1. That the fraternity, sorority or organization has a prior written notice to the school
authorities or head of organization;

2. The said written notice must be secured at least seven (7) days before the conduct of
such initiation;

3. That the written notice shall indicate:

a. The period of the initiation activities, which shall not exceed three (3) days;

b. The names of those to be subjected to such activities; and

c. An undertaking that no physical violence be employed by anybody during such

initiation rites. Section 3 of R.A. No. 8049 imposes an obligation to the head of the
school or organization or their representatives that they must assign at least two (2)
representatives, as the case may be, to be present during these valid initiations. The
duty of such representative ,is to see to it that no physical harm of any kind shall be
inflicted upon a recruit, neophyte or applicant.

Noticeably, the law does not provide a penalty or sanction to fraternities, sororities or organizations
that fail to comply with the notice requirements of Section 2. Also, the school and organization
administrators do not have a clear liability for non-compliance with Section 3.

Any person who commits the crime of hazing shall be liable in accordance with Section 4 of the law,
which provides different classes of persons who are held liable as principals and accomplices.

The first class of principals would be the actual participants in the hazing. If the person subjected to
hazing or other forms of initiation rites suffers any physical injury or dies as a result thereof, the
officers and members of the fraternity, sorority or organization who actually participated in the
infliction of physical harm shall be liable as principals. Interestingly, the presence of any person
during the hazing is prima facie evidence of actual participation, unless he prevented the
commission of the acts punishable herein.76

The prescribed penalty on the principals depends on the extent of injury inflicted to the victim.77 The
penalties appear to be similar to that of homicide, serious physical injuries, less serious physical
injuries, and slight physical injuries under the RPC, 78 with the penalties for hazing increased one
degree higher. Also, the law provides several circumstances which would aggravate the imposable
penalty.79

Curiously, although hazing has been defined as consisting of those activities involving physical or
psychological suffering or injury, the penalties for hazing only covered the infliction of physical harm.
At best, the only psychological injury recognized would be causing insanity to the victim. Conversely,
even if the victim only sustained physical injuries which did not incapacitate him, there is still a
prescribed penalty.80

The second class of principals would be the officers, former officers, or alumni of the organization,
group, fraternity or sorority who actually planned the hazing. 81 Although these planners were not
present when the acts constituting hazing were committed, they shall still be liable as principals. The
provision took in consideration the non-resident members of the organization, such as their former
officers or alumni.

The third class of principals would ht; officers or members of an organization group, fraternity or
sorority who knowingly cooperated in carrying out the hazing by inducing the victim to be present
thereat.82 These officers or members are penalized, not because of their direct participation in the
infliction of harm, but due to their indispensable cooperation in the crime by inducing the victim to
attend the hazing.

The next class of principals would be the fraternity or sorority's adviser who was present when the
acts constituting hazing were committed, and failed to take action to prevent them from
occurring.83 The liability of the adviser arises, not only from his mere presence in the hazing, but also
his failure to prevent the same.

The last class of principals would be the parents of the officers or members of the fraternity, group,
or organization.84The hazing must be held in the home of one of the officers or members. The
parents must have actual knowledge of the hazing conducted in their homes and failed to take any
action to avoid the same from occurring.

The law also provides for accomplices in the crime of hazing. The school authorities, including
faculty members, who consented to the hazing or who have actual knowledge thereof, but failed to
take any action to prevent the same from occurring shall be punished as accomplices.85 Likewise, the
owner of the place where the hazing was conducted can also be an accomplice to the crime. 86 The
owner of the place shall be liable when he has actual knowledge of the hazing conducted therein
and he failed to take any steps to stop the same. Recognizing the malum prohibitum characteristic of
hazing, the law provides that any person charged with the said crime shall not be entitled to the
mitigating circumstance that there was no intention to commit so grave a wrong. 87 Also, the framers
of the law intended that the consent of the victim shall not be a defense in hazing. During the
discussion of whether sodomy shall be included as a punishable act under the law, the issue of
consent was tackled: SENATOR LINA x x x

But sodomy in this case is connected with hazing, Mr. President. Such that the act may even be
entered into with consent. It is not only sodomy. The infliction of pain may be done with the consent
of the neophyte. If the law is passed, that does not make the act of hazing not punishable because
the neophyte accepted the infliction of pain upon himself.

If the victim suffers from serious physical injuries, but the initiator said, "Well, he allowed it upon
himself. He consented to it." So, if we allow that reasoning that sodomy was done with the consent
of the victim, then we would not have passed any law at all. There will be no significance if we pass
this bill, because it will always be a defense that the victim allowed the infliction of pain or suffering.
He accepted it as part of the initiation rites.

But precisely, Mr. President that is one thing that we would want to prohibit. That the defense of
consent will not apply because the very act of inflicting physical pain or psychological suffering is, by
itself, a punishable act. The result of the act of hazing, like death or physical injuries merely
aggravates the act with higher penalties. But the defense of consent is not going to nullify the
criminal nature of the act.

So, if we accept the amendment that sodomy can only aggravate the offense if it is committed
without consent of the victim, then the whole foundation of this proposed law will collapse.

SENATOR BIAZON. Thank you, Mr. President.

SENATOR LINA. Thank you very much.

THE PRESIDENT. Is there any objection to the committee amendment? (Silence.) The Chair hears
none; the same is approved.88

[Emphasis supplied]

Further, the law acknowledges that the offended party in the crime of hazing can seek different
courses of action. n '.'provides that the responsible officials of the school or of the police, military or
citizen's army training organization, may impose the appropriate administrative sanctions on the
person or the persons charged under this provision even before their conviction. 89 Necessarily, the
offended party can file either administrative, civil, or criminal actions against the offenders. 90

The study of the provisions of R.A. No. 8049 shows that, on paper, it is complete and robust in
penalizing the crime of hazing. It was made malum prohibitum to discount criminal intent and
disallow the defense of good faith. It took into consideration the different participants and
contributors in the hazing activities. While not all acts cited in the law are penalized, the penalties
imposed therein involve various and serious terms of imprisonment to discourage would-be
offenders. Indeed, the law against hazing is ideal and profound. As to whether the law can be
effectively implemented, the Court begs to continue on the merits of the case.

The Information properly

charged the offense proved

The petitioners claim that the amended ,information avers a criminal charge of hazing by actual
participation, but the only offense proved during the trial was hazing by inducement. Their1
contention must fail. The Amended Information reads:

That on or about 2:30 in the early morning of January 14, 2006, at Villa Novaliches, Brgy. Pansol,
Calamba City, Province of Laguna and within the jurisdiction of the Honorable Court, the above-
named accused, during a planned initiation rite and being then officers and members of Alpha Phi
Omega fraternity and present thereat, in conspiracy with more or less twenty other members and
officers, whose identity is not yet known, did then and there willfully, unlawfully and feloniously
assault and use personal violence upon one MARLON VILLANUEVA y MEJILLA, a neophyte thereof
and as condition for his admission to the fraternity, thereby subjecting him to physical harm, resulting
to his death, to the damage and prejudice of the heirs of the victim. CONTRARY TO LAW. 91
On the manner of how the Information should be worded, Section 9, Rule 110 of the Rules of Court,
is enlightening:

Section 9. Cause of the accusation. The acts or omissions complained of as constituting the offense
and the qualifying and aggravating circumstances must be stated in ordinary and concise language
and not necessarily in the language used in the statute but in terms sufficient to enable a person of
common understanding to know what offense is being charged as well as its qualifying and
aggravating circumstances and for the court to pronounce judgment.

It is evident that the Information need not use the exact language of the statute in alleging the acts or
omissions complained of as constituting the offense. The test is whether it enables a person of
common understanding to know the charge against him, and the court to render judgment properly.92

The Court agrees with the OSG that the "planned initiation rite" as stated in the information included
the act of inducing Villanueva to attend it. In ordinary parlance, a planned event can be understood
to have different phases. Likewise, the hazing activity had different stages and the perpetrators had
different roles therein, not solely inflicting physical injury to the neophyte. One of the roles of the
petitioners in the hazing activity was to induce Villanueva to be present. Dungo and Sibal not only
induced Villanueva to be present at the resort, but they actually brought him there. They fulfilled their
roles in the planned hazing rite which eventually led to the death of Villanueva. The hazing would not
have been accomplished were it not for the acts of the petitioners that induced the victim to be
present.

Secrecy and silence are common characterizations of the dynamics of hazing.93 To require the
prosecutor to indicate every step of the planned initiation rite in the information at the inception of the
criminal case, when details of the clandestine hazing are almost nil, would be an arduous task, if not
downright impossible. The law does not require the impossible (lex non cognit ad impossibilia).

The proper approach would be to require the prosecution to state every element of the crime of
hazing, the offenders, and the accompanying circumstances in the planned initiation activity which
has been satisfied in the present case. Accordingly, the amended information sufficiently informed
the petitioners that they were being criminally charged for their roles in the planned initiation rite.

Conspiracy of the
offenders was duly proven

The petitioners assail that the prosecution failed to establish the fact of conspiracy.

The Court disagrees.

A conspiracy exists when two or more persons come to an agreement concerning the commission of
a felony and decide to commit it. To determine conspiracy, there must be a common design to
commit a felony.94 The overt act or acts of the accused may consist of active participation in the
actual commission of the crime itself or may consist of moral assistance to his co-conspirators by
moving them to execute or implement the criminal plan.95

In conspiracy, it need not be shown that the parties actually came together and agreed in express
terms to enter into and pursue a common design. The assent of the minds may be and, from the
secrecy of the crime, usually inferred from proof of facts and circumstances which, taken together,
indicate that they are parts of some complete whole.96Responsibility of a conspirator is not confined
to the accomplishment of a particular purpose of conspiracy but extends to collateral acts and
offenses incident to and growing out of the purpose intended. 97
The lawmakers deliberated on whether the prosecution was still obliged to prove the conspiracy
between the offenders under R.A. 8049, to wit:

SENATOR GUINGONA. Mr. President, assuming there was a group that initiated and a person died.
The charge is murder. My question is: Under this bill if it becomes a law, would the prosecution have
to prove conspiracy or not anymore?

SENATOR LINA. Mr. President, if the person is present during hazing x x x

SENATOR GUINGONA. The persons are present. First, would the prosecution have to prove
conspiracy? Second, would the prosecution have to prove intent to kill or not?

SENATOR LINA. No more. As to the second question, Mr. President, if that occurs, there is no need
to prove intent to kill.

SENATOR GUINGONA. But the charge is murder.

SENATOR LINA. That is why I said that it should not be murder. It should be hazing, Mr. President. 98

The Court does not categorically agree that, under R.A. No. 8049, the prosecution need not prove
conspiracy. Jurisprudence dictates that conspiracy must be established, not by conjectures, but by
positive and conclusive evidence. Conspiracy transcends mere companionship and mere presence
at the scene of the crime does not in itself amount to conspiracy. Even knowledge, acquiescence in
or agreement to cooperate, is not enough to constitute one as a party to a conspiracy, absent any
active participation in the commission of the crime with a view to the furtherance of the common
design and purpose.99

R.A. No. 8049, nevertheless, presents a novel provision that introduces a disputable presumption of
actual participation; and which modifies the concept of conspiracy. Section 4, paragraph 6 thereof
provides that the presence of any person during the hazing is prima facie evidence of participation
as principal, unless he prevented the commission of the punishable acts. This provision is unique
because a disputable presumption arises from the mere presence of the offender during the hazing,
which can be rebutted by proving that the accused took steps to prevent the commission of the
hazing.

The petitioners attempted to attack the constitutionality of Section 4 of R.A. No. 8049 before the CA,
hut did not succeed. "[A] finding of prima facie evidence x x x does not shatter the presumptive
innocence the accused enjoys because, before prima facie evidence arises, certain facts have still to
be proved; the trial court cannot depend alone on such evidence, because precisely, it is merely
prima facie. It must still satisfy that the accused is guilty beyond reasonable doubt of the offense
charged. Neither can it rely on the weak defense the latter may adduce." 100

Penal laws which feature prima facie evidence by disputable presumptions against the offenders are
not new, and can be observed in the following: (1) the possession of drug paraphernalia gives rise to
prima facie evidence of the use of dangerous drug;101 (2) the dishonor of the check for insufficient
funds is prima facie evidence of knowledge of such insufficiency of funds or credit; 102 and (3) the
possession of any good which has been the subject of robbery or thievery shall be prima facie
evidence of fencing.103

Verily, the disputable presumption under R.A. No. 8049 can be related to the conspiracy in the crime
of hazing. The common design of offenders is to haze the victim. Some of the overt acts that could
be committed by the offenders would be to (1) plan the hazing activity as a requirement of the
victim's initiation to the fraternity; (2) induce the victim to attend the hazing; and (3) actually
participate in the infliction of physical injuries.

In this case, there was prima facie evidence of the petitioners' participation in the hazing because of
their presence in the venue. As correctly held by the RTC, the presence of Dungo and Sibal during
the hazing at Villa Novaliches Resort was established by the testimony of Ignacio. She testified that
she saw Sibal emerge from the resort and approach her store, to wit:

MR. DIMACULANGAN

Q: And how many persons from this group did you see again?

WITNESS

A: Three (3), sir.

Q: Where did they come from, did they come out from the resort? Where did this 3 people or this
group of people coming from?

A: Inside the resort, sir.

Q: And around what time was this?

A: Around 9:00, sir.

Q: And what did they do if any if they came out of the resort?

A: They went to my store, sir.

xxxx

Q: Did you have any other visitors to your store that night?

xxxx

A: "Meron po".

Q: Who were these visitors?

A: I don't know their names but I recognize their faces, sir.

Q: If I show you pictures of these people, will you be able to identify them before this Court.

A: Yes, sir.

xxxx
Q: Mrs. Ignacio, I am showing you this picture of persons marked as Exhibit "L" in the Pre-Trial, can
you please look over this document carefully and see if any of the persons whom you said visited
your store is here?

xxxx

A: "Siya rin po."

COURT:

Make it of record that the witness pinpointed to the first picture appearing on the left picture on the
first row.

xxxx

ATIY. PAMAOS:

For the record, your Honor, we manifest that the picture and the name pointed by the witness has
been previously marked as Exhibit "L-3" and previously admitted by the defense as referring to
Gregorio Sibal, Jr., accused in this case…104

Ignacio, also positively identified Dungo as among the guests of Villa Novaliches Resort on the night
of the hazing, to wit:

COURT

Q: xx x Now, when you say other people you could identify who are not in the pictures then how
would you know that these people are indeed those people you could identify?

WITNESS

A: "Iyon pong ... di ba po nagkuwento ako na dumating sila tapos nag shake hands at saka iyong
nagyakapan po ... "

Q: And what will be the significance of the alleged embrace and shake hands for you to say that you
could identify those people?

A: "Hindi po. Noong dumating po sila nasa isang jeep, meron pong lalaki doon sa may tabi ng driver
bumaba siya tapos po noong bumaba siya tapos iyong mga kasamahan nya sa likod nagbaba-an
din, iyon po nagbati-an po sila."

Q: And from these greeting, how could you identify these people?

A: "Ngayon ko lang po napag masdan ang taong iyon, hindi ko po alam na akusado po sa kabila
iyon."

Q: And who was that person?

A: "Siya po, iyon po."

Q: Who are you pointing to?

A: "Iyon pong naka-dilaw na ... " (Witness pointing to Dandy Dungo)

Q: So, are you telling the Court that this person you positively saw seated beside the driver came out
and subsequently embraced and shook hands with the other people from the jeepney, is that your
testimony?

A: Yes, your Honor.105

The testimony of Ignacio was direct and straightforward. Her testimony was given great weight
because she was a disinterested and credible witness. The prosecution indubitably established the
presence of Dungo and Sibal during the hazing. Such gave rise to the prima facie evidence of their
actual participation in the hazing of Villanueva. They were given an opportunity to rebut and
overcome the prima facie evidence of the prosecution by proving that they prevented the
commission of the hazing, yet they failed to do so.

Because of the uncontroverted prima facie evidence against the petitioners, it was shown that they
performed an overt act in the furtherance of the criminal design of hazing. Not only did they induce
the victim to attend the hazing activity, the petitioners also actually participated in it based on the
prima facie evidence. These acts are sufficient to establish their roles in the conspiracy of hazing.

Hence, generally, mere presence at the scene of the crime does not in itself amount to
conspiracy.106 Exceptionally, under R.A. No. 8049, the participation of the offenders in the criminal
conspiracy can be proven by the prima facie evidence due to their presence during the hazing,
unless they prevented the commission of the acts therein.

The guilt of the

petitioners was proven
beyond reasonable doubt

Aside from inducing Villanueva to attend the initiation rites and their presence during the hazing, the
petitioners? guilt was proven beyond reasonable doubt by the sequence of circumstantial evidence
presented by the prosecution. Their involvement in the hazing of Villanueva is not merely based on
prima facie evidence but was also established by circumstantial evidence.

In considering a criminal case, it is critical to start with the law's own starting perspective on the
status of the accused - in all criminal prosecutions, he is presumed innocent of the charge laid
unless the contrary is proven beyond reasonable doubt.107 In criminal law, proof beyond reasonable
doubt does not mean such degree of proof that produces absolute certainty. Only moral certainty is
required or that degree of proof which produces conviction in an unprejudiced mind. 108

While it is established that nothing less than proof beyond reasonable doubt is required for a
conviction, this exacting standard does not preclude resort to circumstantial evidence when direct
evidence is not available. Direct evidence is not a condition sine qua non to prove the guilt of an
accused beyond reasonable doubt. For in the absence of direct evidence, the prosecution may
resort to adducing circumstantial evidence to discharge its burden. Crimes are usually committed in
secret and under conditions where concealment is highly probable. If direct evidence is insisted on
under all circumstances, the prosecution of vicious felons who commit heinous crimes in secret or
secluded places will be hard, if not impossible, to prove. 109 Needless to state, the crime of hazing is
shrouded in secrecy. Fraternities and sororities, especially the Greek organizations, are secretive in
nature and their members are reluctant to give any information regarding initiation rites. 110 The
silence is only broken after someone has been injured so severely that medical attention is required.
It is only at this point that the secret is revealed and the activities become public.111 Bearing in mind
the concealment of hazing, it is only logical and proper for the prosecution to resort to the
presentation of circumstantial evidence to prove it.

The rules on evidence and precedents to sustain the conviction of an accused through circumstantial
evidence require the existence of the following requisites: (1) there are more than one circumstance;
(2) the inference must be based on proven facts; and (3) the combination of all circumstances
produces a conviction beyond reasonable doubt of the guilt of the accused. 112 To justify a conviction
upon circumstantial evidence, the combination of circumstances must be such as to leave no
reasonable doubt in the mind as to the criminal liability of the accused. Jurisprudence requires that
the circumstances must be established to form an unbroken chain of events leading to one fair
reasonable conclusion pointing to the accused, to the exclusion of all others, as the author of the
crime.113

The CA meticulously wrote in detail the unbroken chain of circumstantial evidence which established
the petitioners' gult in the death of Villanueva as follows:

1. Marlon Villanueva is a neophyte of Alpha Phi Omega, as testified by his roommate Joey
Atienza.

2. At around 3:00 o'clock in the afternoon of January 13, 2006, Sunga was staying at their
tambayan, talking to her organization mates. Three men were seated two meters way from
her. She identified two of the men as appellants Sibal and Dungo, while she did not know the
third man. The three men were wearing black shirts with the seal of the Alpha Phi Omega.

3. Later at 5:00 o'clock in the afternoon, two more men coming from the entomology wing
arrived and approached the three men. Among the men who just arrived was the victim,
Marlon Villanueva. One of the men wearing black APO shirts handed over to the two
fraternity neophytes some money and told the men "Mamalengke na kayo." He later took
back the money and said, "Huwag na, kami na lang."

4. One of the men wearing a black APO shirt, who was later identified as appellant Dungo,
stood up and asked Marlon if the latter already reported to him, and asked him why he did
not report to him when he was just at the tambayan. Dungo then continuously punched the
victim on his arm. This went on for five minutes. Marlon just kept quiet with his head bowed
down. Fifteen minutes later, the men left going towards the Entomology wing.

5. The deceased Marlon Villanueva was 'last seen alive by Joey Atienza at 7:00 in the
evening of 13 January 2006, from whom he borrowed the shoes he wore at the initiation right
[sic]. Marlon told Joey that it was his "finals" night.

6. On January 13, 2006 at around 8:30 to 9:00 o'clock in the evening, Susan Ignacio saw
more than twenty (20) persons arrive at the Villa Novaliches Resort onboard a jeepney. She 1â wphi1

estimated the ages of these persons to be between 20 to 30 years old. Three (3) persons
riding a single motorcycle likewise arrived at the resort.

7. Ignacio saw about fifteen (15) persons gather on top of the terrace at the resort who
looked like they were praying. Later that evening, at least three (3) of these persons went to
her store to buy some items. She did not know their names but could identity [sic] their faces.
After she was shown colored photographs, she pointed to the man later identified as Herald
Christopher Braseros. She also pointed out the man later identified as Gregorio Sibal, Jr.
8. Donato Magat, a tricycle driver plying the route of Pansol, Calamba City, testified that
around 3:00 o'clock in the morning of January 14, 2006, he was waiting for passengers at
the corner of Villa Novaliches Resort when a man approached him and told him that
someone inside the resort needed a ride. Magat then went to the resort and asked the two
(2) men standing by the gate who will be riding his tricycle.

9. The four (4) men boarded his tricycle but Magat noticed that when he touched the body of
the man who was being carried, it felt cold. The said man looked very weak like a vegetable.

10. Seferino Espina y Jabay testified that he worked as a security guard at the J.P. Rizal
Hospital and was assigned at the emergency room. At around 3:00 o'clock in the early
morning of January 14, 2006, he was with another security guard, Abelardo Natividad and
hospital helper Danilo Glindo a.k.a. Gringo, when a tricycle arrived at the emergency room
containing four (4) passengers, excluding the driver. He was an arm's length away from said
tricycle. He identified two of the passengers thereof as appellants Dungo and Sibal. Espina
said he and Glinda helped the passengers unload a body inside the tricycle and brought it to
the emergency room.

11. Afterwards, Espina asked the two meq for identification cards. The latter replied that they
did not bring with them any I.D. or wallet. Instead of giving their true names, the appellants
1âwphi 1

listed down their names in the hospital logbook as Brandon Gonzales y Lanzon and Jericho
Paril y Rivera. Espina then told the two men not to leave, not telling them that they secretly
called the police to report the incident which was their standard operating procedure when a
dead body was brought to the hospital.

12. Dr. Ramon Masilungan, who was then the attending physician at the emergency room,
observed that Marlon was motionless, had no heartbeat and already cyanotic.

13. Dr. Masilungan tried to revive Marlon for about 15 to 20 minutes. However, the latter did
not respond to resuscitation and was pronounced dead. Dr. Masilungan noticed a big
contusion hematoma on the left side of the victim's face and several injuries on his arms and
legs. He further attested that Marlon's face was already cyanotic.

14. When Dr. Masilungan pulled down Marlon's pants, he saw a large contusion on both legs
which extended from the upper portion of his thigh down to the couplexial portion or the back
of the knee.

15. Due to the nature, extent and location of Marlon's injuries, Dr. Masilungan opined that he
was a victim of hazing. Dr. Masilungan is familiar with hazing injuries, having undergone
hazing when he was a student and also because of his experience treating victims of hazing
incidents.

16. Dr. Roy Camarillo, Medico-Legal Officer of the PNP Crime Laboratory in Region IV,
Camp Vicente Lim, Canlubang, Calamba City, testified that he performed an autopsy on the
cadaver of the victim on January 14j 2006; that the victim's cause of death was blunt head
trauma. From 1999 to 2006, he was able to conduct post-mortem examination of the two (2)
persons whose deaths were attributed to hazing. These two (2) persons sustained multiple
contusions and injuries on different parts of their body, particularly on the buttocks, on both
upper and lower extremities. Both persons died of brain hemorrhage. Correlating these two
cases to the injuries found on the victim's body, Dr. Camarillo attested that the victim, Marlon
Villanueva, sustained similar injuries to those two (2) persons. Based on the presence of
 multiple injuries and contusions on his body, he opined that these injuries were hazing-
related.114

Petitioners Dungo and Sibal, on the other hand, presented the defense of denial and alibi. These
defenses, however, must fail. Time and time again, this Court has ruled that denial and alibi are the
weakest of all defenses, because they are easy to concoct and fabricate. 115 As properly held by the
RTC, these defenses cannot prevail over the positive and unequivocal identification of the petitioners
by prosecution witnesses Sunga and Ignacio. The testimonies of the defense witnesses also lacked
credibility and reliability. The corroboration of defense witness Rivera was suspect because she was
the girlfriend of Dungo, and it was only logical and emotional that she would stand by the man she
loved and cared for. The testimonies of their fellow fraternity brothers, likewise, do not hold much
weight because they had so much at stake in the outcome of the case. Stated differently, the
petitioners did not present credible and. disinterested witnesses to substantiate their defenses of
denial and alibi.

After a careful review of the records, the Court agrees with the CA and the R TC that the
circumstantial evidence presented by the prosecution was overwhelming enough to establish the
guilt of the petitioners beyond a reasonable doubt. The unbroken chain of events laid down by the
CA leaves us no other conclusion other than the petitioners' participation in the hazing. They took
part in the hazing and, together; with their fellow fraternity officers and members, inflicted physical
injuries to Villanueva as a requirement of his initiation to the fraternity. The physical injuries
eventually took a toll on the body of the victim, which led to his death. Another young life lost.

With the fact of hazing, the identity ,of the petitioners, and their participation therein duly proven, the
moral certainty that produces conviction in an unprejudiced mind has been satisfied.

Final Note

Hazing has been a phenomenon that has beleaguered the country's educational institutions and
communities. News of young men beaten to death as part of fraternities' violent initiation rites
supposedly to seal fraternal bond has sent disturbing waves to lawmakers. Hence, R.A. No. 8049
was signed into to law on June 7, 1995. Doubts on the effectiveness of the law were raised. The
Court, however, scrutinized its provisions and it is convinced that the law is rigorous in penalizing the
crime of hazing.

Hopefully, the present case will serve as a guide to the bench and the bar on the application of R.A.
No. 8049. Through careful case-build up and proper presentation of evidence before the court, it is
not impossible for the exalted constitutional presumption of innocence of the accused to be
overcome and his guilt for the crime of hazing be proven beyond reasonable doubt. The prosecution
must bear in mind the secretive nature of hazing, and carefully weave its chain of circumstantial
evidence. Likewise, the defense must present a genuine defense and substantiate the same through
credible and reliable witnesses. The counsels of both parties must also consider hazing as a malum
prohibitum crime and the law's distinctive provisions.

While the Court finds R.A. No. 8049 adequate to deter and prosecute hazing, the law is far from
perfect. In Villareal v. People,116 the Court suggested that the fact of intoxication and the presence of
non-resident or alumni fraternity members during hazing should be considered as aggravating
circumstances that would increase the applicable penalties. Equally, based on the discussion earlier,
this Court suggests some further amendments to the law. First, there should be a penalty or liability
for noncompliance with Section 2, or the written notice requirement, and with Section 3, or the
representation requirement. Second, the penalties under Section 4 should also consider the
psychological harm done to the victim of hazing. With these additional inputs on R.A. No. 8049, the
movement against hazing can be invigorated. R.A. No. 8049 is a democratic response to the uproar
against hazing. It demonstrates that there must, and should, be another way of fostering
brotherhood, other than through the culture of violence and suffering. The senseless deaths of these
young men shall never be forgotten, for justice is the spark that lights the candles of their graves.

WHEREFORE, the petition is DENIED. The April 26, 2013 Decision and the October 8, 2013
Resolution of the Court of Appeals in CAG.R. CR-H.C. No. 05046 are hereby AFFIRMED in toto. Let
copies of this Decision be furnished to the Secretary of the Department of Justice as guidance for
the proper implementation and prosecution of violators of R.A. No. 8049; and to the Senate
President and the Speaker of the House of Representatives for possible consideration of the
amendment of the Anti-Hazing Law to include the penalty for noncompliance with its Section 2 and
3, and the :penalty for the psychological harms to the surviving victims of hazing.

SO ORDERED.

G.R. No. 121828. June 27, 2003

PEOPLE OF THE PHILIPPINES, Appellee, v. EDMAR AGUILOS, ODILON LAGLIBA Y ABREGON and
RENE GAYOT PILOLA, accused, RENE GAYOT PILOLA, Appellant.

DECISION

CALLEJO, SR., J.:

Before us is the appeal of appellant Rene Gayot Pilola for the reversal of the Decision1of the Regional
Trial Court (RTC) of Pasig City, Branch 164, convicting him of murder, sentencing him to
suffer reclusion perpetuaand ordering him to indemnify the heirs of the victim Joselito Capa y Rulloda
in the amount of P50,000 for the latters death.

The Indictment

On June 7, 1998, Edmar Aguilos, Odilon Lagliba y Abregon and appellant Rene Gayot Pilola were
charged with murder in an Information which reads:

That on or about the 5th day of February, 1988 in the Municipality of Mandaluyong, Metro Manila,
Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together with one Ronnie Diamante who is still at-large and no fixed
address and mutually helping and aiding with one another, armed with double-bladed knives and a
bolo and with intent to kill, treachery and taking advantage of superior strength, did then and there
willfully, unlawfully and feloniously attack, assault hack and stab one Joselito Capa y Rulloda, as a
result of which the latter sustained hack and stab wounds on the different parts of his body, which
directly caused his death.

CONTRARY TO LAW.2 cräläwvirt u alib räry

Of the three accused, Odilon Lagliba was the first to be arrested 3 and tried, and subsequently
convicted of murder.4 The decision of the trial court became final and executory. Accused Edmar
Aguilos remains at large while accused Ronnie Diamante reportedly died a month after the incident.
Meanwhile, herein appellant Rene Gayot Pilola was arrested. He was arraigned on March 9, 1994,
assisted by counsel, and pleaded not guilty to the charge.5Thereafter, trial of the case ensued.

The Evidence of the Prosecution[6

On February 5, 1988, at around 11:30 p.m., Elisa Rolan was inside their store at 613 Nueve de
Pebrero Street, Mandaluyong City, waiting for her husband to arrive. Joselito Capa and Julian Azul, Jr.
were drinking beer. Edmar Aguilos and Odilon Lagliba arrived at the store. Joselito and Julian invited
them to join their drinking spree, and although already inebriated, the two newcomers obliged. In the
course of their drinking, the conversation turned into a heated argument. Edmar nettled Julian, and
the latter was peeved. An altercation between the two ensued. Elisa pacified the protagonists and
advised them to go home as she was already going to close up. Edmar and Odilon left the store.
Joselito and Julian were also about to leave, when Edmar and Odilon returned, blocking their way.
Edmar took off his eyeglasses and punched Julian in the face. Elisa shouted: Tama na. Tama
na. Edmar and Julian ignored her and traded fist blows until they reached Aling Soteras store at the
end of the street, about twelve to fifteen meters away from Elisas store. For his part, Odilon
positioned himself on top of a pile of hollow blocks and watched as Edmar and Julian swapped
punches. Joselito tried to placate the protagonists to no avail. Joselitos intervention apparently did not
sit well with Odilon. He pulled out his knife with his right hand and stepped down from his perch. He
placed his left arm around Joselitos neck, and stabbed the latter. Ronnie and the appellant, who were
across the street, saw their gangmate Odilon stabbing the victim and decided to join the fray. They
pulled out their knives, rushed to the scene and stabbed Joselito. Elisa could not tell how many times
the victim was stabbed or what parts of his body were hit by whom. The victim fell in the canal. Odilon
and the appellant fled, while Ronnie went after Julian and tried to stab him. Julian ran for dear life.
When he noticed that Ronnie was no longer running after him, Julian stopped at E. Rodriguez Road
and looked back. He saw Ronnie pick up a piece of hollow block and with it bashed Joselitos head. Not
content, Ronnie got a piece of broken bottle and struck Joselito once more. Ronnie then fled from the
scene. Joselito died on the spot. Elisa rushed to Joselitos house and informed his wife and brother of
the incident.7cräläwvirt u alib räry

The next day, Dr. Bienvenido Muoz, Supervising Medico-Legal Officer of the National Bureau of
Investigation, conducted an autopsy on the cadaver of Joselito and prepared Autopsy Report No. N-
88-375,8with the following findings:

POSTMORTEM FINDINGS

Pallor, conjunctivae and integument, marked and generalized.

Contused abrasions: temple, right, 3.0 x 3.0 cm.; mandibular region, right, 2.0 x 8.0 cm.; back,
suprascapular region, left, 3.0 x 4.0 cm.; deltoid region, right, 1.0 x 3.0 cm.

Lacerated wound, scalp, occipital region, 4.0 cm.

Incised wounds: forehead, right side, 5.5 cm.; arm, left, upper third, posterior aspect, 1.5 cm.

Stab wounds:

1. Elliptical, 1.8 cm., oriented almost horizontally, edges are clean-cut, medial extremity is sharp,
lateral extremity is blunt; located at the anterior chest wall, level of 3 rdintercostal space, right, 5.0 cm.
from anterior median line; directed backward, upward and medially, non-penetrating, with an
approximate depth of 3.0 cm.;

2. Elliptical, 1.5 cm., oriented almost horizontally, edges are clean-cut, one extremity is sharp and the
other is blunt; located at the antero-lateral aspect of chest, level of 3rd intercostal space, left, 3.0 cm.
from anterior median line; directed backward, downward and medially, into the left thoracic cavity,
penetrating the left ventricle of the heart with an approximate depth of 10.0 cm.;

3. Elliptical, 3.0 cm., oriented almost horizontally, edges are clean-cut, one extremity is sharp and the
other is blunt; located at the antero-lateral aspect of chest, level of 4th intercostal space, 12.0 cm.
from anterior median line; directed backward, downward and medially, penetrating upper lobe of left
lung with an approximate depth of 9.0 cm.;
4. Elliptical, 2.0 cm., oriented almost horizontally, edges are clean-cut, one extremity is sharp and the
other is blunt; located at the antero-lateral aspect of chest, level of 5th intercostal space, left, 15.0 cm.
from anterior median line; directed backward, downward and medially, penetrating the left thoracic
cavity and then lower lobe of left lung and then penetrating the left ventricle of the heart with an
approximate depth of 11.0 cm.;

5. Elliptical, 1.3 cm., oriented almost horizontally, edges are clean-cut, one extremity is sharp and the
other is blunt; located at the lateral chest wall, level of 7thintercostal space, left, 16.0 cm. from
anterior median line; directed backward, upward and medially, into the left thoracic cavity and then
penetrating the lower lobe of left lung with an approximately depth of 10.0 cm.;

6. Elliptical, 4.0 cm., oriented almost horizontally, edges are clean-cut, one extremity is sharp and the
other is blunt; located at the lumbar region, left, 14.0 cm. from anterior median line; directed
backward, upward and medially, into the abdominal cavity and then penetrating ileum;

7. Elliptical, 1.5 cm., oriented almost vertically, edges are clean-cut, upper extremity is sharp, lower
extremity is blunt; located at the chest, lateral, level of 9thintercostal space, left; 14.0 cm. from
posterior median line; directed forward, upward and medially, non-penetrating with an approximate
depth of 4.0 cm.;

8. Elliptical, 2.0 cm., oriented almost vertically, edges are clean-cut, upper extremity is blunt, lower
extremity is sharp; located at the abdomen, postero-lateral aspect, 15.0 cm. from posterior median
line; directed forward, upward and laterally, into the abdominal cavity and then perforating the spleen
and pancreas with an approximate depth of 13.0 cm.;

9. Elliptical, 5.0 cm., oriented almost vertically, edges are clean-cut, upper extremity is blunt, lower
extremity is sharp; located at the left arm, upper third, anterior; directed backward, downward and
medially, involving skin and underlying soft tissues with an approximate depth of 6.0 cm.;

10. Elliptical, 2.3 cm., oriented almost vertically, edges are clean-cut, upper extremity is sharp, lower
extremity is blunt; located at the left forearm, upper third, anterior; directed backward, upward and
medially and communicating with another wound, arm, left, medial aspect, 2.0 cm.;

11. Elliptical, 2.0 cm., oriented almost vertically, edges are clean-cut, upper extremity blunt, lower
extremity, sharp; located at the left arm, lower third, posterior aspect, directed forward, downward
and medially, communicating with another wound, arm, left, lower third, posterior aspect, 1.5 cm.

Hemothorax, left 900 c.c.

Hemopericardium 300 c.c.

Hemoperitoneum 750 c.c.

Brain and other visceral organs, pale.

Stomach-filled with rice and other food particles.

CAUSE OF DEATH: Multiple stab wounds.

The Evidence of the Appellant

The appellant denied stabbing the victim and interposed the defense of alibi. He testified that at
around 11:00 p.m. of February 5, 1988, he was in the house of his cousin, Julian Cadion, at 606
Nueve de Pebrero Street, Mandaluyong City. He suddenly heard a commotion coming from outside.
Julian rushed out of the house to find out what was going on. The appellant remained inside the house
because he was suffering from ulcer and was experiencing excessive pain in his stomach. The
following morning, the appellant learned from their neighbor, Elisa Rolan, that Joselito had been
stabbed to death. The appellant did not bother to ask who was responsible for the stabbing. 9 cräläwvirt u alib räry

Julian alias Buboy Cadion corroborated the appellants testimony. He testified that the appellant was in
their house on the night of February 5, 1988, and was suffering from ulcer. The appellant stayed
home on the night of the incident.10 cräläwvirt u alib räry

Agripina Gloria, a female security guard residing at Block 30, Nueve de Pebrero, 612, Int. 4, Allison
St., Mandaluyong City, testified that on February 5, 1988 at around 11:00 p.m., she heard a
commotion outside. Momentarily, she saw Ronnie rush into the kitchen of the house of her niece
Teresita; he took a knife and run towards Nueve de Pebrero Street where Edmar and Julian were
fighting. She then followed Ronnie and saw Joselito trying to pacify the protagonists. Ronnie grabbed
Joselito and instantly stabbed the latter, who for a while retreated and fell down the canal. Not
content, Ronnie repeatedly stabbed Joselito. Thereafter, Ronnie ran towards the direction of the
mental hospital. Agripina did not see Odilon or the appellant anywhere within the vicinity of the
incident.11
cräläwv irt u alib räry

On May 3, 1995, the trial court rendered its assailed decision, the dispositive portion of which reads,
to wit:

WHEREFORE, this Court finds RENE GAYOT PILOLA of 606 Nueve de Febrero Street, Mandaluyong City,
GUILTY beyond reasonable doubt of Murder punished under Article 248 of the Revised Penal Code, and
there being no mitigating nor aggravating circumstances, he is hereby sentenced to reclusion
perpetua. Pilola is hereby ordered to indemnify the heirs of deceased Joselito Capa alias Jessie in the
amount of FIFTY THOUSAND PESOS (P50,000.00) as indemnity for his death jointly and solidarily with
Odilon Lagliba who was earlier convicted herein. With cost against the accused.12 cräläwvirt u alib räry

In the case at bar, the appellant assails the decision of the trial court contending that:

THE TRIAL COURT ERRED IN CONCLUDING THAT THERE WAS CONSPIRACY ANENT THE ASSAILED
INCIDENT.

II

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE UNRELIABLE AND INCONSISTENT
TESTIMONY OF PROSECUTION WITNESS ELISA ROLAN AND IN SETTING ASIDE THE EVIDENCE
PROFFERED BY ACCUSED-APPELLANT.

III

THE TRIAL COURT MANIFESTLY ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME

CHARGED DESPITE THE FACT THAT HIS GUILT WAS NOT PROVED BEYOND REASONABLE DOUBT.13 cräläwvirt u alib räry

The appellant avers that Elisa is not a credible witness and her testimony is barren of probative
weight. This is so because she contradicted herself when she testified on direct examination that
Ronnie struck the head of the victim with a hollow block. However, on cross-examination, she stated
that it was Edmar who struck the victim. The inconsistency in Elisas testimony impaired her credibility.

The contention of the appellant does not hold water.

First. The identity of the person who hit the victim with a hollow block is of de minimis importance.
The victim died because of multiple wounds. The appellant is charged with murder for the killing of the
victim with a knife, in conspiracy with the other accused.

Second. The perceived inconsistency in Elisas account of events is a minor and collateral detail that
does not affect the substance of her testimony, as it even serves to strengthen rather than destroy
her credibility.14
cräläwvirt u alib räry

Third. Elisa has been consistent in her testimony that the appellant was one of the men who stabbed
the victim, the others being Ronnie and Odilon. Elisas testimony is corroborated by the autopsy report
of Dr. Bienvenido Muoz and his testimony that the victim sustained eleven stab wounds. The doctor
testified that there were two or more assailants:

Q Could you tell the court what instrument could have been used by the perpetrator in inflicting those
two incise wounds?

A Those incise wounds were caused by a sharp instrument like a knife or any similar instrument.

Q Now you also found out from the body of the victim eleven stab wounds?

A Yes, sir.

Q Now, tell the court in which part of the body of the victim where these eleven stab wounds [are]
located?

A Shall I go one by one, all the eleven stab wounds?

Q All the eleven stab wounds?

A One stab wound was located at the front portion of the chest, right side. Another stab wound was
located also on the chest left side, another stab wound was located at the antero lateral aspect, its the
front of the chest almost to the side. And also another one, also at the chest, another stab wound was
at the left side of the chest and another one was at the lumbar region of the abdomen left side or
where the left kidney is located, lumbar area. Another one at the side of the chest, left side of the
chest. Another stab wound in the abdomen, another stab wound at the left arm. Another one at the
left forearm and the last one in the autopsy report is located at the left arm. These are all the eleven
stab wounds sustained by the victim.

A The instrument used was a sharp pointed edge or a single bladed instrument like a knife, kitchen
knife, balisong or any similar instrument.

Q Considering the number of stab wounds, doctor, will you tell us whether there were several
assailants?

A In my opinion, there were more than one assailants (sic) here because of the presence of different
types of stab wounds and lacerated wounds. This lacerated wound could not have been inflicted by the
one holding the one which inflicted the instrument . . (discontinued) which inflicted the stab wounds.

Q So there could have been two or three assailants?

A More than one.15 cräläwvirt u alib räry

The physical evidence is a mute but eloquent manifestation of the veracity of Elisas testimony. 16 cräläwvirt u alib räry
Fourth. Even the appellant himself declared on the witness stand that he could not think of any reason
why Elisa pointed to him as one of the assailants. In a litany of cases, we have ruled that when there
is no showing of any improper motive on the part of a witness to testify falsely against the accused or
to falsely implicate the latter in the commission of the crime, as in the case at bar, the logical
conclusion is that no such improper motive exists, and that the testimony is worthy of full faith and
credence.17 cräläwvirt u alib räry

Fifth. The trial court gave credence and full probative weight to Elisas testimony. Case law has it that
the trial courts calibration of the testimonial evidence of the parties, its assessment of the credibility of
witnesses and the probative weight thereof is given high respect, if not conclusive effect, by the
appellate court.

The appellant argues that the prosecution failed to prove that he conspired with Ronnie and Odilon in
stabbing the victim to death. He contends that for one to be a conspirator, his participation in the
criminal resolution of another must either precede or be concurrent with the criminal acts. He asserts
that even if it were true that he was present at the situs criminis and that he stabbed the victim, it
was Odilon who had already decided, and in fact fatally stabbed the victim. He could not have
conspired with Odilon as the incident was only a chance encounter between the victim, the appellant
and his co-accused. In the absence of a conspiracy, the appellant cannot be held liable as a principal
by direct participation. Elisa could not categorically and positively assert as to what part of the victims
body was hit by whom, and how many times the victim was stabbed by the appellant. He asserts that
he is merely an accomplice and not a principal by direct participation.

We are not persuaded by the ruminations of the appellant.

There is conspiracy when two or more persons agree to commit a felony and decide to commit
it.18 Conspiracy as a mode of incurring criminal liability must be proved separately from and with the
same quantum of proof as the crime itself. Conspiracy need not be proven by direct evidence. After
all, secrecy and concealment are essential features of a successful conspiracy. It may be inferred from
the conduct of the accused before, during and after the commission of the crime, showing that they
had acted with a common purpose and design.19 Conspiracy may be implied if it is proved that two or
more persons aimed by their acts towards the accomplishment of the same unlawful object, each
doing a part so that their combined acts, though apparently independent of each other, were, in fact,
connected and cooperative, indicating a closeness of personal association and a concurrence of
sentiment.20 There may be conspiracy even if an offender does not know the identities of the other
offenders,21and even though he is not aware of all the details of the plan of operation or was not in on
the scheme from the beginning.22 One need only to knowingly contribute his efforts in furtherance of
it.23 One who joins a criminal conspiracy in effect adopts as his own the criminal designs of his co-
conspirators. If conspiracy is established, all the conspirators are liable as co-principals regardless of
the manner and extent of their participation since in contemplation of law, the act of one would be the
act of all.24 Each of the conspirators is the agent of all the others. 25
cräläwvirt u alib räry

To hold an accused guilty as a co-principal by reason of conspiracy, he must be shown to have

performed an overt act in pursuance or furtherance of the conspiracy. 26 The mere presence of an
accused at the situs of the crime will not suffice; mere knowledge, acquiescence or approval of the act
without cooperation or agreement to cooperate on the part of the accused is not enough to make him
a party to a conspiracy. There must be intentional participation in the transaction with a view to the
furtherance of the common design and purpose.27Conspiracy to exist does not require an agreement
for an appreciable period prior to the occurrence. From the legal standpoint, conspiracy exists if, at
the time of the commission of the offense, the accused had the same purpose and were united in its
execution.28 As a rule, the concurrence of wills, which is the essence of conspiracy, may be deduced
from the evidence of facts and circumstances, which taken together, indicate that the parties
cooperated and labored to the same end.29 cräläwvirt u alib räry

Even if two or more offenders do not conspire to commit homicide or murder, they may be held
criminally liable as principals by direct participation if they perform overt acts which mediately or
immediately cause or accelerate the death of the victim, applying Article 4, paragraph 1 of the Revised
Penal Code:

Art. 4. Criminal liability. Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act done be different from that
which he intended.

In such a case, it is not necessary that each of the separate injuries is fatal in itself. It is sufficient if
the injuries cooperated in bringing about the victims death. Both the offenders are criminally liable for
the same crime by reason of their individual and separate overt criminal acts. 30 Absent conspiracy
between two or more offenders, they may be guilty of homicide or murder for the death of the victim,
one as a principal by direct participation, and the other as an accomplice, under Article 18 of the
Revised Penal Code:

Art. 18. Accomplices. Accomplices are the persons who, not being included in Article 17, cooperate in
the execution of the offense by previous or simultaneous acts.

To hold a person liable as an accomplice, two elements must concur: (a) the community of criminal
design; that is, knowing the criminal design of the principal by direct participation, he concurs with the
latter in his purpose; (b) the performance of previous or simultaneous acts that are not indispensable
to the commission of the crime.31 Accomplices come to know about the criminal resolution of the
principal by direct participation after the principal has reached the decision to commit the felony and
only then does the accomplice agree to cooperate in its execution. Accomplices do not decide whether
the crime should be committed; they merely assent to the plan of the principal by direct participation
and cooperate in its accomplishment.32 However, where one cooperates in the commission of the
crime by performing overt acts which by themselves are acts of execution, he is a principal by direct
participation, and not merely an accomplice. 33 cräläwv irt u alib räry

In this case, Odilon all by himself initially decided to stab the victim. The appellant and Ronnie were
on the side of the street. However, while Odilon was stabbing the victim, the appellant and Ronnie
agreed to join in; they rushed to the scene and also stabbed the victim with their respective knives.
The three men simultaneously stabbed the hapless victim. Odilon and the appellant fled from the
scene together, while Ronnie went after Julian. When he failed to overtake and collar Julian, Ronnie
returned to where Joselito fell and hit him with a hollow block and a broken bottle. Ronnie then
hurriedly left. All the overt acts of Odilon, Ronnie and the appellant before, during, and after the
stabbing incident indubitably show that they conspired to kill the victim.

The victim died because of multiple stab wounds inflicted by two or more persons. There is no
evidence that before the arrival of Ronnie and the appellant at the situs criminis, the victim was
already dead. It cannot thus be argued that by the time the appellant and Ronnie joined Odilon in
stabbing the victim, the crime was already consummated.

All things considered, we rule that Ronnie and the appellant conspired with Odilon to kill the victim;
hence, all of them are criminally liable for the latters death. The appellant is not merely an accomplice
but is a principal by direct participation.

Even assuming that the appellant did not conspire with Ronnie and Odilon to kill the victim, the
appellant is nevertheless criminally liable as a principal by direct participation. The stab wounds
inflicted by him cooperated in bringing about and accelerated the death of the victim or contributed
materially thereto.34 cräläwvirt u alib räry

The trial court correctly overruled the appellants defense of alibi. Alibi is a weak, if not the weakest of
defenses in a criminal prosecution, because it is easy to concoct but hard to disprove. To serve as
basis for acquittal, it must be established by clear and convincing evidence. For it to prosper, the
accused must prove not only that he was absent from the scene of the crime at the time of its
commission, but also that it was physically impossible for him to have been present then.35 In this
case, the appellant avers that at the time of the stabbing incident, he was resting in the house of his
cousin at 606 Nueve de Pebrero Street as he was suffering from stomach pain due to his ulcer. 36 But
the appellant failed to adduce any medical certificate that he was suffering from the ailment.
Moreover, Elisa positively identified the appellant as one of the men who repeatedly stabbed the
victim. The appellants defense of alibi cannot prevail over the positive and straightforward
identification of the appellant as one of the victims assailants. The appellant himself admitted that his
cousins house, the place where he was allegedly resting when the victim was stabbed, was merely ten
to fifteen meters away from the scene of the stabbing. Indeed, the appellants defense of denial and
alibi, unsubstantiated by clear and convincing evidence, are negative and self-serving and cannot be
given greater evidentiary weight than the positive testimony of prosecution eyewitness Elisa Rolan. 37 cräläwvirt u alib räry

The appellants defenses must crumble in the face of evidence that he fled from the situs criminis and
later left his house. The records show that despite being informed that he was sought after by the
authorities as a suspect for the killing of the victim, the appellant suddenly and inscrutably
disappeared from his residence at Nueve de Pebrero. As early as May 5, 1988, a subpoena for the
appellant was returned unserved because he was out of town.38 The appellants own witness, Julian
Cadion, testified that the appellant had left and was no longer seen at Nueve de Pebrero after the
incident, thus:

Q So, how long did you stay at 606 Nueve de Pebrero after February 5, 1988?

A One week only, sir, and then three weeks after, I returned to Nueve de Pebrero.

Q The whole week after February 5, 1988, was Rene Pilola still living at 606 Nueve de Pebrero?

A I did not see him anymore, sir.

Q And then three weeks thereafter, you went back to Nueve de Pebrero. Is that what you were then
saying?

A Yes, sir.

Q Now, at the time that you went back to 606 Nueve de Pebrero, was Rene Pilola there?

A I did not see him anymore, sir.39 cräläwv irt u alib räry

The records show that the appellant knew that he was charged for the stabbing of the victim.
However, instead of surrendering to the police authorities, he adroitly evaded arrest. The appellants
flight is evidence of guilt and, from the factual circumstances obtaining in the case at bar, no reason
can be deduced from it other than that he was driven by a strong sense of guilt and admission that he
had no tenable defense.40

The Crime Committed by the Appellant

and the Proper Penalty Therefor

The trial court correctly convicted the appellant of murder qualified by treachery. Abuse of superior
strength likewise attended the commission of the crime. There is treachery when the offender
commits any of the crimes against persons, employing means, methods or forms in the execution
thereof which tend directly and specially to insure its execution, without risk to himself arising from
the defense which the offended party might make. The essence of treachery is the swift and
unexpected attack on the unarmed victim without the slightest provocation on his part.41 In this case,
the attack on the unarmed victim was sudden. Odilon, without provocation, suddenly placed his arm
around the victims neck and forthwith stabbed the latter. The victim had no inkling that he would be
attacked as he was attempting to pacify Edmar and Julian. Ronnie and the appellant, both also armed
with deadly weapons, rushed to the scene and stabbed the victim, giving no real opportunity for the
latter to defend himself. And even as the victim was already sprawled on the canal, Ronnie bashed his
head with a hollow block. The peacemaker became the victim of violence.

Unquestionably, the nature and location of the wounds showed that the killing was executed in a
treacherous manner, preventing any means of defense on the part of the victim. As testified to by Dr.
Bienvenido Muoz, the victim was stabbed, not just once, but eleven times mostly on the chest and the
abdominal area. Six of the stab wounds were fatal, causing damage to the victims vital internal
organs.42cräläwvirt u alib räry

The aggravating circumstance of abuse of superior strength is absorbed by treachery. 43There is no

mitigating circumstance that attended the commission of the felony. The penalty for murder under
Article 248 of the Revised Penal Code is reclusion perpetua to death. Since no aggravating and
mitigating circumstances attended the commission of the crime, the proper penalty is reclusion
perpetua, conformably to Article 63 of the Revised Penal Code.

Civil Liabilities of the Appellant

The trial court correctly directed the appellant to pay to the heirs of the victim Joselita Capa the
amount of P50,000 as civil indemnity ex delicto, in accord with current jurisprudence.44 The said heirs
are likewise entitled to moral damages in the amount of P50,000, also conformably to current
jurisprudence.45 In addition, the heirs are entitled to exemplary damages in the amount
of P25,000.46 cräläwvirt u alib räry

WHEREFORE, the Decision, dated May 3, 1995, of Branch 164 of the Regional Trial Court of Pasig
City in Criminal Case No. 73615, finding appellant Rene Gayot Pilola GUILTY beyond reasonable doubt
of the crime of murder is AFFIRMED WITH MODIFICATION. The appellant is hereby directed to pay to
the heirs of the victim Joselito Capa the amount of P50,000 as civil indemnity; the amount of P50,000
as moral damages; and the amount of P25,000 as exemplary damages.

SO ORDERED.

People v. Pilola

G.R. No. 121828 June 27, 2003

Lessons Applicable:

Laws Applicable:

FACTS:
 February 5, 1988 11:30 pm: Elisa Rolan was inside their store waiting for her husband to
arrive. Joselito Capa and Julian Azul, Jr. were drinking beer. Although already drunk, Edmar
Aguilos and Odilon Lagliba joined them. Edmar had a heated argument with Julian. Elisa
pacified Edmar and advised them to go home as she was already going to close up. Edmar
and Odilon left then returned to block Joselito and Julian. Edmar took off his eyeglasses and
punched Julian in the face. Elisa shouted: “Tama na. Tama na” but she was ignored as they
continued until they reached the end of the street. Odilon positioned himself on top of a pile
of hollow blocks and watched as Edmar and Julian swapped punches. As Joselito tried to
stop the fight, Odilon pulled out his knife with his right hand and stepped down from his
perch. He placed his left arm around Joselito’s neck, and stabbed him. Ronnie and Rene
Gayot Pilola, who were across the street, saw their gangmate Odilon stabbing the victim and
decided to join the fray. Ronnie took a knife from the kitchen of Teresita and rushed together
 with Pilola to the scene and stabbed Joselito. As Joeslito was stabbed 11 times (6 fatal stab
wounds), he fell in the canal. Odilon and Pilola fled while Ronnie went after Julian who ran
dear life. When Julian noticed that Ronnie was no longer running after him, he looked back
and saw Ronnie pick up a piece of hollow block and bashed Joselito’s head. Then, Ronnie
got a piece of broken bottle and struck Joselito once more before fleing from the
scene. Joselito died on the spot. Elisa rushed to Joselito’s house and informed his wife and
brother of the incident.
 Agripina Gloria, a female security guard, saw Ronnie repeatedly stabbed Joselito and fled
towards the direction of the mental hospital. She did not see Odilon.
 Elisa cross-examination had an inconsistency, she stated that it was Edmar who struck the
victim (before it was Ronnie)
 RTC: Pilola GUILTY beyond reasonable doubt of Murder qualified by treachery and
sentenced to reclusion perpetua

ISSUE: W/N Pilola is guilty of murder

HELD: YES. Rene Gayot Pilola GUILTY beyond reasonable doubt of the crime of murder is
AFFIRMED WITH MODIFICATION

 The identity of the person who hit the victim with a hollow block is of de minimis
importance. Elisa’s testimony is corroborated by the autopsy report of Dr. Bienvenido
Muñoz. No showing of any improper motive on the part of a witness to testify falsely against
the accused or to falsely implicate the latter in the commission of the crime. The trial court
gave credence and full probative weight to Elisa’s testimony.
 There is conspiracy when two or more persons agree to commit a felony and decide to
commit it. Conspiracy as a mode of incurring criminal liability must be proved separately
from and with the same quantum of proof as the crime itself. Conspiracy need not be proven
by direct evidence. After all, secrecy and concealment are essential features of a successful
conspiracy. It may be inferred from the conduct of the accused before, during and after the
commission of the crime, showing that they had acted with a common purpose and design.
Conspiracy may be implied if it is proved that two or more persons aimed by their acts
towards the accomplishment of the same unlawful object, each doing a part so that their
combined acts, though apparently independent of each other, were, in fact, connected and
cooperative, indicating a closeness of personal association and a concurrence of sentiment.
There may be conspiracy even if an offender does not know the identities of the other
offenders, and even though he is not aware of all the details of the plan of operation or was
not in on the scheme from the beginning. One need only to knowingly contribute his efforts in
furtherance of it. One who joins a criminal conspiracy in effect adopts as his own the criminal
designs of his co-conspirators. If conspiracy is established, all the conspirators are liable as
co-principals regardless of the manner and extent of their participation since in contemplation
of law, the act of one would be the act of all. Each of the conspirators is the agent of all the
others.
 The mere presence of an accused at the situs of the crime will not suffice. There must be
intentional participation in the transaction with a view to the furtherance of the common
design and purpose.
 Even if two or more offenders do not conspire to commit homicide or murder, they may be
held criminally liable as principals by direct participation if they perform overt acts which
mediately or immediately cause or accelerate the death of the victim. Art. 4. Criminal
liability. – Criminal liability shall be incurred:
o 1. By any person committing a felony (delito) although the wrongful act done be different from that
which he intended.
 Art. 18. Accomplices. – Accomplices are the persons who, not being included in Article 17,
cooperate in the execution of the offense by previous or simultaneous acts.
o To hold a person liable as an accomplice, two elements must concur:
1. the community of criminal design; that is, knowing the criminal design of the principal by direct
participation, he concurs with the latter in his purpose;
2. the performance of previous or simultaneous acts that are not indispensable to the commission of the
crime
 Accomplices come to know about the criminal resolution of the principal by direct
participation after the principal has reached the decision to commit the felony and only then
does the accomplice agree to cooperate in its execution. Accomplices do not decide
whether the crime should be committed; they merely assent to the plan of the principal by
direct participation and cooperate in its accomplishment
 However, where one cooperates in the commission of the crime by performing overt acts
which by themselves are acts of execution, he is a principal by direct participation, and not
merely an accomplice
 Odilon all by himself initially decided to stab the victim. However, while Odilon was stabbing
the victim, the appellant and Ronnie agreed to join. All the overt acts of Odilon, Ronnie and
the Pilola before, during, and after the stabbing incident indubitably show that they conspired
to kill the victim. Since the victim is not yet dead, the crime is not yet consummated so Pilola
is a principal by direct participation.
 Alibi is a weak, if not the weakest of defenses in a criminal prosecution, because it is easy to
concoct but hard to disprove. To serve as basis for acquittal, it must be established by clear
and convincing evidence. For it to prosper, the accused must prove not only that he was
absent from the scene of the crime at the time of its commission, but also that it was
physically impossible for him to have been present then.
 Pilola knew that he was charged for the stabbing but instead of surrendering to the police
authorities, he evaded arrest and this flight is evidence of guilt
 There is treachery when the offender commits any of the crimes against persons, employing
means, methods or forms in the execution thereof which tend directly and specially to insure
its execution, without risk to himself arising from the defense which the offended party might
make. The essence of treachery is the swift and unexpected attack on the unarmed victim
without the slightest provocation on his part - attack on the unarmed victim was
sudden. The aggravating circumstance of abuse of superior strength is absorbed by
treachery