SECOND DIVISION EDUARDO P. MANUEL, G.R. No. 165842 Petitioner, - versus PEOPLE OF THE PHILIPPINES, Respondent.

2005 DECISION CALLEJO, SR., J.: Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision[2] of the Regional Trial Court (RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel of bigamy in Criminal Case No. 19562-R. Eduardo was charged with bigamy in an Information filed on November 7, 2001, the accusatory portion of which reads: That on or about the 22nd day of April, 1996, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused EDUARDO P. MANUEL, being then previously and legally married to RUBYLUS [GAA] and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with TINA GANDALERA-MANUEL, herein complainant, who does not know the existence of the first marriage of said EDUARDO P. MANUEL to Rubylus [Gaa]. CONTRARY TO LAW. [3] November 29,

The prosecution adduced evidence that on July 28, 1975, Eduardo was married to Rubylus Gaa before Msgr. Feliciano Santos in Makati, which was then still a municipality of the Province of Rizal.[4] He met the private complainant Tina B. Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan, Dagupan City for two days looking for a friend. Tina was then 21 years old, a Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to Baguio City to visit her. Eventually, as one thing led to another, they went to a motel where, despite Tinas resistance, Eduardo succeeded in having his way with her. Eduardo proposed marriage on several occasions, assuring her that he was single. Eduardo even brought his parents to Baguio City to meet Tinas parents, and was assured by them that their son was still single. Tina finally agreed to marry Eduardo sometime in the first week of March 1996. They were married on April 22, 1996 before Judge Antonio C. Reyes, the Presiding Judge of the RTC of Baguio City, Branch 61.[5] It appeared in their marriage contract that Eduardo was single. The couple was happy during the first three years of their married life. Through their joint efforts, they were able to build their home in Cypress Point, Irisan, Baguio City. However, starting 1999, Manuel started making himself scarce and went to their house only twice or thrice a year. Tina was jobless, and whenever she asked money from Eduardo, he would slap her.[6] Sometime in January 2001, Eduardo took all his clothes, left, and did not return. Worse, he stopped giving financial support. Sometime in August 2001, Tina became curious and made inquiries from the National Statistics Office (NSO) in Manila where she learned that Eduardo had been previously married. She secured an NSO-certified copy of the marriage contract.[7] She was so embarrassed and humiliated when she learned that Eduardo was in fact already married when they exchanged their own vows.[8] For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she worked as a Guest Relations Officer (GRO). He fell in love with her and married her. He informed Tina of his previous marriage to Rubylus Gaa, but she nevertheless agreed to marry him. Their marital relationship was in order until this one time when he noticed that she had a love-bite on her neck. He then abandoned her. Eduardo further testified that he declared he was single in his marriage contract with Tina because he believed in good faith that his first marriage was invalid. He did not know that he had to go to court to seek for the nullification of his first marriage before marrying Tina. Eduardo further claimed that he was only forced to marry his first wife because she threatened to commit suicide unless he did so. Rubylus was charged with estafa in 1975 and thereafter imprisoned. He visited her in jail after three months and never saw her again. He insisted that he married Tina

believing that his first marriage was no longer valid because he had not heard from Rubylus for more than 20 years. After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty beyond reasonable doubt of bigamy. He was sentenced to an indeterminate penalty of from six (6) years and ten (10) months, as minimum, to ten (10) years, as maximum, and directed to indemnify the private complainant Tina Gandalera the amount of P200,000.00 by way of moral damages, plus costs of suit.[9] The trial court ruled that the prosecution was able to prove beyond reasonable doubt all the elements of bigamy under Article 349 of the Revised Penal Code. It declared that Eduardos belief, that his first marriage had been dissolved because of his first wifes 20-year absence, even if true, did not exculpate him from liability for bigamy. Citing the ruling of this Court in People v. Bitdu,[10] the trial court further ruled that even if the private complainant had known that Eduardo had been previously married, the latter would still be criminally liable for bigamy. Eduardo appealed the decision to the CA. He alleged that he was not criminally liable for bigamy because when he married the private complainant, he did so in good faith and without any malicious intent. He maintained that at the time that he married the private complainant, he was of the honest belief that his first marriage no longer subsisted. He insisted that conformably to Article 3 of the Revised Penal Code, there must be malice for one to be criminally liable for a felony. He was not motivated by malice in marrying the private complainant because he did so only out of his overwhelming desire to have a fruitful marriage. He posited that the trial court should have taken into account Article 390 of the New Civil Code. To support his view, the appellant cited the rulings of this Court in United States v. Pealosa[11] and Manahan, Jr. v. Court of Appeals.[12] The Office of the Solicitor General (OSG) averred that Eduardos defense of good faith and reliance on the Courts ruling in United States v. Enriquez[13] were misplaced; what is applicable is Article 41 of the Family Code, which amended Article 390 of the Civil Code. Citing the ruling of this Court in Republic v. Nolasco,[14] the OSG further posited that as provided in Article 41 of the Family Code, there is a need for a judicial declaration of presumptive death of the absent spouse to enable the present spouse to marry. Even assuming that the first marriage was void, the parties thereto should not be permitted to judge for themselves the nullity of the marriage; the matter should be submitted to the proper court for resolution. Moreover, the OSG maintained, the private complainants knowledge of the first marriage would not afford any relief since bigamy is an offense against the State and not just against the private complainant.

However, the OSG agreed with the appellant that the penalty imposed by the trial court was erroneous and sought the affirmance of the decision appealed from with modification. On June 18, 2004, the CA rendered judgment affirming the decision of the RTC with modification as to the penalty of the accused. It ruled that the prosecution was able to prove all the elements of bigamy. Contrary to the contention of the appellant, Article 41 of the Family Code should apply. Before Manuel could lawfully marry the private complainant, there should have been a judicial declaration of Gaas presumptive death as the absent spouse. The appellate court cited the rulings of this Court in Mercado v. Tan[15] and Domingo v. Court of Appeals[16] to support its ruling. The dispositive portion of the decision reads: WHEREFORE, in the light of the foregoing, the Decision promulgated on July 31, 2002 is hereby MODIFIED to reflect, as it hereby reflects, that accused-appellant is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to ten (10) years of prision mayor as maximum. Said Decision is AFFIRMED in all other respects. SO ORDERED.[17] Eduardo, now the petitioner, filed the instant petition for review on certiorari, insisting that: I THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT RULED THAT PETITIONERS FIRST WIFE CANNOT BE LEGALLY PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL CODE AS THERE WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE. II THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL DAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW.[18] The petitioner maintains that the prosecution failed to prove the second element of the felony, i.e., that the marriage has not been legally dissolved or, in case his/her spouse is absent, the absent spouse could not yet be presumed dead under the Civil Code. He avers that when he married Gandalera in 1996, Gaa

had been absent for 21 years since 1975; under Article 390 of the Civil Code, she was presumed dead as a matter of law. He points out that, under the first paragraph of Article 390 of the Civil Code, one who has been absent for seven years, whether or not he/she is still alive, shall be presumed dead for all purposes except for succession, while the second paragraph refers to the rule on legal presumption of death with respect to succession. The petitioner asserts that the presumptive death of the absent spouse arises by operation of law upon the satisfaction of two requirements: the specified period and the present spouses reasonable belief that the absentee is dead. He insists that he was able to prove that he had not heard from his first wife since 1975 and that he had no knowledge of her whereabouts or whether she was still alive; hence, under Article 41 of the Family Code, the presumptive death of Gaa had arisen by operation of law, as the two requirements of Article 390 of the Civil Code are present. The petitioner concludes that he should thus be acquitted of the crime of bigamy. The petitioner insists that except for the period of absences provided for in Article 390 of the Civil Code, the rule therein on legal presumptions remains valid and effective. Nowhere under Article 390 of the Civil Code does it require that there must first be a judicial declaration of death before the rule on presumptive death would apply. He further asserts that contrary to the rulings of the trial and appellate courts, the requirement of a judicial declaration of presumptive death under Article 41 of the Family Code is only a requirement for the validity of the subsequent or second marriage. The petitioner, likewise, avers that the trial court and the CA erred in awarding moral damages in favor of the private complainant. The private complainant was a GRO before he married her, and even knew that he was already married. He genuinely loved and took care of her and gave her financial support. He also pointed out that she had an illicit relationship with a lover whom she brought to their house. In its comment on the petition, the OSG maintains that the decision of the CA affirming the petitioners conviction is in accord with the law, jurisprudence and the evidence on record. To bolster its claim, the OSG cited the ruling of this Court in Republic v. Nolasco.[19] The petition is denied for lack of merit. Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads: Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon any

person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. The provision was taken from Article 486 of the Spanish Penal Code, to wit: El que contrajere Segundo o ulterior matrimonio sin hallarse legtimamente disuelto el anterior, ser castigado con la pena de prision mayor. xxx The reason why bigamy is considered a felony is to preserve and ensure the juridical tie of marriage established by law.[20] The phrase or before the absent spouse had been declared presumptively dead by means of a judgment rendered in the proper proceedings was incorporated in the Revised Penal Code because the drafters of the law were of the impression that in consonance with the civil law which provides for the presumption of death after an absence of a number of years, the judicial declaration of presumed death like annulment of marriage should be a justification for bigamy.[21] For the accused to be held guilty of bigamy, the prosecution is burdened to prove the felony: (a) he/she has been legally married; and (b) he/she contracts a subsequent marriage without the former marriage having been lawfully dissolved. The felony is consummated on the celebration of the second marriage or subsequent marriage.[22] It is essential in the prosecution for bigamy that the alleged second marriage, having all the essential requirements, would be valid were it not for the subsistence of the first marriage.[23] Viada avers that a third element of the crime is that the second marriage must be entered into with fraudulent intent (intencion fraudulente) which is an essential element of a felony by dolo.[24] On the other hand, Cuello Calon is of the view that there are only two elements of bigamy: (1) the existence of a marriage that has not been lawfully dissolved; and (2) the celebration of a second marriage. It does not matter whether the first marriage is void or voidable because such marriages have juridical effects until lawfully dissolved by a court of competent jurisdiction.[25] As the Court ruled in Domingo v. Court of Appeals[26] and Mercado v. Tan,[27] under the Family Code of the Philippines, the judicial declaration of nullity of a previous marriage is a defense. In his commentary on the Revised Penal Code, Albert is of the same view as Viada and declared that there are three (3) elements of bigamy: (1) an undissolved marriage; (2) a

new marriage; and (3) fraudulent intention constituting the felony of the act.[28] He explained that: This last element is not stated in Article 349, because it is undoubtedly incorporated in the principle antedating all codes, and, constituting one of the landmarks of our Penal Code, that, where there is no willfulness there is no crime. There is no willfulness if the subject believes that the former marriage has been dissolved; and this must be supported by very strong evidence, and if this be produced, the act shall be deemed not to constitute a crime. Thus, a person who contracts a second marriage in the reasonable and well-founded belief that his first wife is dead, because of the many years that have elapsed since he has had any news of her whereabouts, in spite of his endeavors to find her, cannot be deemed guilty of the crime of bigamy, because there is no fraudulent intent which is one of the essential elements of the crime.[29] As gleaned from the Information in the RTC, the petitioner is charged with bigamy, a felony by dolo (deceit). Article 3, paragraph 2 of the Revised Penal Code provides that there is deceit when the act is performed with deliberate intent. Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as an intentional felony, it is deemed voluntary.[30] Although the words with malice do not appear in Article 3 of the Revised Penal Code, such phrase is included in the word voluntary.[31] Malice is a mental state or condition prompting the doing of an overt act without legal excuse or justification from which another suffers injury.[32] When the act or omission defined by law as a felony is proved to have been done or committed by the accused, the law presumes it to have been intentional.[33] Indeed, it is a legal presumption of law that every man intends the natural or probable consequence of his voluntary act in the absence of proof to the contrary, and such presumption must prevail unless a reasonable doubt exists from a consideration of the whole evidence.[34] For one to be criminally liable for a felony by dolo, there must be a confluence of both an evil act and an evil intent. Actus non facit reum, nisi mens sit rea.[35] In the present case, the prosecution proved that the petitioner was married to Gaa in 1975, and such marriage was not judicially declared a nullity; hence, the marriage is presumed

to subsist.[36] The prosecution also proved that the petitioner married the private complainant in 1996, long after the effectivity of the Family Code. The petitioner is presumed to have acted with malice or evil intent when he married the private complainant. As a general rule, mistake of fact or good faith of the accused is a valid defense in a prosecution for a felony by dolo; such defense negates malice or criminal intent. However, ignorance of the law is not an excuse because everyone is presumed to know the law. Ignorantia legis neminem excusat. It was the burden of the petitioner to prove his defense that when he married the private complainant in 1996, he was of the well-grounded belief that his first wife was already dead, as he had not heard from her for more than 20 years since 1975. He should have adduced in evidence a decision of a competent court declaring the presumptive death of his first wife as required by Article 349 of the Revised Penal Code, in relation to Article 41 of the Family Code. Such judicial declaration also constitutes proof that the petitioner acted in good faith, and would negate criminal intent on his part when he married the private complainant and, as a consequence, he could not be held guilty of bigamy in such case. The petitioner, however, failed to discharge his burden. The phrase or before the absent spouse has been declared presumptively dead by means of a judgment rendered on the proceedings in Article 349 of the Revised Penal Code was not an aggroupment of empty or useless words. The requirement for a judgment of the presumptive death of the absent spouse is for the benefit of the spouse present, as protection from the pains and the consequences of a second marriage, precisely because he/she could be charged and convicted of bigamy if the defense of good faith based on mere testimony is found incredible. The requirement of judicial declaration is also for the benefit of the State. Under Article II, Section 12 of the Constitution, the State shall protect and strengthen the family as a basic autonomous social institution. Marriage is a social institution of the highest importance. Public policy, good morals and the interest of society require that the marital relation should be surrounded with every safeguard and its severance only in the manner prescribed and the causes specified by law.[37] The laws regulating civil marriages are necessary to serve the interest, safety, good order, comfort or general welfare of the community and the parties can waive nothing essential to the validity of the proceedings. A civil marriage anchors an ordered society by encouraging stable relationships over transient ones; it enhances the welfare of the community. In a real sense, there are three parties to every civil marriage; two willing spouses and an approving State. On

marriage, the parties assume new relations to each other and the State touching nearly on every aspect of life and death. The consequences of an invalid marriage to the parties, to innocent parties and to society, are so serious that the law may well take means calculated to ensure the procurement of the most positive evidence of death of the first spouse or of the presumptive death of the absent spouse[38] after the lapse of the period provided for under the law. One such means is the requirement of the declaration by a competent court of the presumptive death of an absent spouse as proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the death of the first spouse. Indeed, men readily believe what they wish to be true, is a maxim of the old jurists. To sustain a second marriage and to vacate a first because one of the parties believed the other to be dead would make the existence of the marital relation determinable, not by certain extrinsic facts, easily capable of forensic ascertainment and proof, but by the subjective condition of individuals.[39] Only with such proof can marriage be treated as so dissolved as to permit second marriages.[40] Thus, Article 349 of the Revised Penal Code has made the dissolution of marriage dependent not only upon the personal belief of parties, but upon certain objective facts easily capable of accurate judicial cognizance,[41] namely, a judgment of the presumptive death of the absent spouse. The petitioners sole reliance on Article 390 of the Civil Code as basis for his acquittal for bigamy is misplaced. Articles 390 and 391 of the Civil Code provide Art. 390. After an absence of seven years, it being unknown whether or not, the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for

(2)

(3)

four years since the loss of the vessel or aeroplane; A person in the armed forces who has taken part in war, and has been missing for four years; A person who has been in danger of death under other circumstances and his existence has not been known for four years.

The presumption of death of the spouse who had been absent for seven years, it being unknown whether or not the absentee still lives, is created by law and arises without any necessity of judicial declaration.[42] However, Article 41 of the Family Code, which amended the foregoing rules on presumptive death, reads: Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Court for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.[43] With the effectivity of the Family Code,[44] the period of seven years under the first paragraph of Article 390 of the Civil Code was reduced to four consecutive years. Thus, before the spouse present may contract a subsequent marriage, he or she must institute summary proceedings for the declaration of the presumptive death of the absentee spouse,[45] without prejudice to the effect of the reappearance of the absentee spouse. As explained by this Court in Armas v. Calisterio:[46]

In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may exceptionally be considered valid, the following conditions must concur, viz.: (a) The prior spouse of the contracting party must have been absent for four consecutive years, or two years where there is danger of death under the circumstances stated in Article 391 of the Civil Code at the time of disappearance; (b) the spouse present has a well-founded belief that the absent spouse is already dead; and (c) there is, unlike the old rule, a judicial declaration of presumptive death of the absentee for which purpose the spouse present can institute a summary proceeding in court to ask for that declaration. The last condition is consistent and in consonance with the requirement of judicial intervention in subsequent marriages as so provided in Article 41, in relation to Article 40, of the Family Code. The Court rejects petitioners contention that the requirement of instituting a petition for declaration of presumptive death under Article 41 of the Family Code is designed merely to enable the spouse present to contract a valid second marriage and not for the acquittal of one charged with bigamy. Such provision was designed to harmonize civil law and Article 349 of the Revised Penal Code, and put to rest the confusion spawned by the rulings of this Court and comments of eminent authorities on Criminal Law. As early as March 6, 1937, this Court ruled in Jones v. Hortiguela[47] that, for purposes of the marriage law, it is not necessary to have the former spouse judicially declared an absentee before the spouse present may contract a subsequent marriage. It held that the declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse had been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.[48] In In Re Szatraw,[49] the Court declared that a judicial declaration that a person is presumptively dead, because he or she had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final; and that proof of actual death of the person presumed dead being unheard from in seven years, would have to be made in another proceeding to have such particular fact finally

determined. The Court ruled that if a judicial decree declaring a person presumptively dead because he or she had not been heard from in seven years cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken, for such presumption is still disputable and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner. The Court stated that it should not waste its valuable time and be made to perform a superfluous and meaningless act.[50] The Court also took note that a petition for a declaration of the presumptive death of an absent spouse may even be made in collusion with the other spouse. In Lukban v. Republic of the Philippines,[51] the Court declared that the words proper proceedings in Article 349 of the Revised Penal Code can only refer to those authorized by law such as Articles 390 and 391 of the Civil Code which refer to the administration or settlement of the estate of a deceased person. In Gue v. Republic of the Philippines ,[52] the Court rejected the contention of the petitioner therein that, under Article 390 of the Civil Code, the courts are authorized to declare the presumptive death of a person after an absence of seven years. The Court reiterated its rulings in Szatraw, Lukban and Jones. Former Chief Justice Ramon C. Aquino was of the view that the provision of Article 349 or before the absent spouse has been declared presumptively dead by means of a judgment reached in the proper proceedings is erroneous and should be considered as not written. He opined that such provision presupposes that, if the prior marriage has not been legally dissolved and the absent first spouse has not been declared presumptively dead in a proper court proceedings, the subsequent marriage is bigamous. He maintains that the supposition is not true.[53] A second marriage is bigamous only when the circumstances in paragraphs 1 and 2 of Article 83 of the Civil Code are not present.[54] Former Senator Ambrosio Padilla was, likewise, of the view that Article 349 seems to require judicial decree of dissolution or judicial declaration of absence but even with such decree, a second marriage in good faith will not constitute bigamy. He posits that a second marriage, if not illegal, even if it be annullable, should not give rise to bigamy.[55] Former Justice Luis B. Reyes, on the other hand, was of the view that in the case of an absent spouse who could not yet be presumed dead according to the Civil Code, the spouse present cannot be charged and convicted of bigamy in case he/she contracts a second marriage.[56] The Committee tasked to prepare the Family Code proposed the amendments of Articles 390 and 391 of the Civil Code to conform to Article 349 of the Revised Penal Code, in that, in a case where a spouse is absent for the requisite period, the present spouse may contract a subsequent marriage only after securing a judgment declaring the presumptive death of the

absent spouse to avoid being charged and convicted of bigamy; the present spouse will have to adduce evidence that he had a well-founded belief that the absent spouse was already dead.[57] Such judgment is proof of the good faith of the present spouse who contracted a subsequent marriage; thus, even if the present spouse is later charged with bigamy if the absentee spouse reappears, he cannot be convicted of the crime. As explained by former Justice Alicia Sempio-Diy: Such rulings, however, conflict with Art. 349 of the Revised Penal Code providing that the present spouse must first ask for a declaration of presumptive death of the absent spouse in order not to be guilty of bigamy in case he or she marries again. The above Article of the Family Code now clearly provides that for the purpose of the present spouse contracting a second marriage, he or she must file a summary proceeding as provided in the Code for the declaration of the presumptive death of the absentee, without prejudice to the latters reappearance. This provision is intended to protect the present spouse from a criminal prosecution for bigamy under Art. 349 of the Revised Penal Code because with the judicial declaration that the missing spouses presumptively dead, the good faith of the present spouse in contracting a second marriage is already established.[58] Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of Justice) who wrote that things are now clarified. He says judicial declaration of presumptive death is now authorized for purposes of remarriage. The present spouse must institute a summary proceeding for declaration of presumptive death of the absentee, where the ordinary rules of procedure in trial will not be followed. Affidavits will suffice, with possible clarificatory examinations of affiants if the Judge finds it necessary for a full grasp of the facts. The judgment declaring an absentee as presumptively dead is without prejudice to the effect of reappearance of the said absentee. Dean Pineda further states that before, the weight of authority is that the clause before the absent spouse has been declared presumptively dead x x x should be disregarded because of Article 83, paragraph 3 of the Civil Code. With the new law, there is a need to institute a summary proceeding for the declaration of the presumptive death of the absentee, otherwise, there is bigamy.[59]

According to Retired Supreme Court Justice Florenz D. Regalado, an eminent authority on Criminal Law, in some cases where an absentee spouse is believed to be dead, there must be a judicial declaration of presumptive death, which could then be made only in the proceedings for the settlement of his estate.[60] Before such declaration, it was held that the remarriage of the other spouse is bigamous even if done in good faith.[61] Justice Regalado opined that there were contrary views because of the ruling in Jones and the provisions of Article 83(2) of the Civil Code, which, however, appears to have been set to rest by Article 41 of the Family Code, which requires a summary hearing for the declaration of presumptive death of the absent spouse before the other spouse can remarry. Under Article 238 of the Family Code, a petition for a declaration of the presumptive death of an absent spouse under Article 41 of the Family Code may be filed under Articles 239 to 247 of the same Code.[62] On the second issue, the petitioner, likewise, faults the trial court and the CA for awarding moral damages in favor of the private complainant. The petitioner maintains that moral damages may be awarded only in any of the cases provided in Article 2219 of the Civil Code, and bigamy is not one of them. The petitioner asserts that the appellate court failed to apply its ruling in People v. Bondoc,[63] where an award of moral damages for bigamy was disallowed. In any case, the petitioner maintains, the private complainant failed to adduce evidence to prove moral damages. The appellate court awarded moral damages to the private complainant on its finding that she adduced evidence to prove the same. The appellate court ruled that while bigamy is not included in those cases enumerated in Article 2219 of the Civil Code, it is not proscribed from awarding moral damages against the petitioner. The appellate court ruled that it is not bound by the following ruling in People v. Bondoc: ... Pero si en dichos asuntos se adjudicaron daos, ello se debi indedublamente porque el articulo 2219 del Cdigo Civil de Filipinas autoriza la adjudicacin de daos morales en los delitos de estupro, rapto, violacin, adulterio o concubinato, y otros actos lascivos, sin incluir en esta enumeracin el delito de bigamia. No existe, por consiguiente, base legal para adjudicar aqu los daos de P5,000.00 arriba mencionados.[64]

The OSG posits that the findings and ruling of the CA are based on the evidence and the law. The OSG, likewise, avers that the CA was not bound by its ruling in People v. Rodeo. The Court rules against the petitioner. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission.[65] An award for moral damages requires the confluence of the following conditions: first, there must be an injury, whether physical, mental or psychological, clearly sustained by the claimant; second, there must be culpable act or omission factually established; third, the wrongful act or omission of the defendant is the proximate cause of the injury sustained by the claimant; and fourth, the award of damages is predicated on any of the cases stated in Article 2219 or Article 2220 of the Civil Code.[66] Moral damages may be awarded in favor of the offended party only in criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code and analogous cases, viz.: Art. 2219. Moral damages may be recovered in the following and analogous cases. (1) A criminal offense resulting in physical injuries; (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4) Adultery or concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned in article 309; (10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34 and 35. The parents of the female seduced, abducted, raped, or abused,

referred to in No. 3 of this article, may also recover moral damages. The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article in the order named. Thus, the law does not intend that moral damages should be awarded in all cases where the aggrieved party has suffered mental anguish, fright, moral anxieties, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury arising out of an act or omission of another, otherwise, there would not have been any reason for the inclusion of specific acts in Article 2219[67] and analogous cases (which refer to those cases bearing analogy or resemblance, corresponds to some others or resembling, in other respects, as in form, proportion, relation, etc.)[68] Indeed, bigamy is not one of those specifically mentioned in Article 2219 of the Civil Code in which the offender may be ordered to pay moral damages to the private complainant/offended party. Nevertheless, the petitioner is liable to the private complainant for moral damages under Article 2219 in relation to Articles 19, 20 and 21 of the Civil Code. According to Article 19, every person must, in the exercise of his rights and in the performance of his act with justice, give everyone his due, and observe honesty and good faith. This provision contains what is commonly referred to as the principle of abuse of rights, and sets certain standards which must be observed not only in the exercise of ones rights but also in the performance of ones duties. The standards are the following: act with justice; give everyone his due; and observe honesty and good faith. The elements for abuse of rights are: (a) there is a legal right or duty; (b) exercised in bad faith; and (c) for the sole intent of prejudicing or injuring another.[69] Article 20 speaks of the general sanctions of all other provisions of law which do not especially provide for its own sanction. When a right is exercised in a manner which does not conform to the standards set forth in the said provision and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be responsible.[70] If the provision does not provide a remedy for its violation, an action for damages under either Article 20 or Article 21 of the Civil Code would be proper. Article 20 provides that every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same. On the other hand, Article 21 provides that any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damages. The latter provision is adopted to remedy the

countless gaps in the statutes which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury should vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to prove for specifically in the statutes. Whether or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 of the Civil Code or other applicable provisions of law depends upon the circumstances of each case.[71] In the present case, the petitioner courted the private complainant and proposed to marry her. He assured her that he was single. He even brought his parents to the house of the private complainant where he and his parents made the same assurance that he was single. Thus, the private complainant agreed to marry the petitioner, who even stated in the certificate of marriage that he was single. She lived with the petitioner and dutifully performed her duties as his wife, believing all the while that he was her lawful husband. For two years or so until the petitioner heartlessly abandoned her, the private complainant had no inkling that he was already married to another before they were married. Thus, the private complainant was an innocent victim of the petitioners chicanery and heartless deception, the fraud consisting not of a single act alone, but a continuous series of acts. Day by day, he maintained the appearance of being a lawful husband to the private complainant, who changed her status from a single woman to a married woman, lost the consortium, attributes and support of a single man she could have married lawfully and endured mental pain and humiliation, being bound to a man who it turned out was not her lawful husband.[72] The Court rules that the petitioners collective acts of fraud and deceit before, during and after his marriage with the private complainant were willful, deliberate and with malice and caused injury to the latter. That she did not sustain any physical injuries is not a bar to an award for moral damages. Indeed, in Morris v. Macnab,[73] the New Jersey Supreme Court ruled: xxx The defendant cites authorities which indicate that, absent physical injuries, damages for shame, humiliation, and mental anguish are not recoverable where the actor is simply negligent. See Prosser, supra, at p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all recognize that where the wrong is willful rather than negligent, recovery may be had for the ordinary, natural, and proximate consequences though they consist of shame, humiliation, and mental anguish. See Spiegel v.

Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct. 1936); Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579, 591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here the defendants conduct was not merely negligent, but was willfully and maliciously wrongful. It was bound to result in shame, humiliation, and mental anguish for the plaintiff, and when such result did ensue the plaintiff became entitled not only to compensatory but also to punitive damages. See Spiegel v. Evergreen Cemetery Co., supra; Kuzma v Millinery Workers, etc., Local 24, supra. CF. Note, Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517 (1957). The plaintiff testified that because of the defendants bigamous marriage to her and the attendant publicity she not only was embarrassed and ashamed to go out but couldnt sleep but couldnt eat, had terrific headaches and lost quite a lot of weight. No just basis appears for judicial interference with the jurys reasonable allowance of $1,000 punitive damages on the first count. See Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. Div.[74] 1955). The Court thus declares that the petitioners acts are against public policy as they undermine and subvert the family as a social institution, good morals and the interest and general welfare of society. Because the private complainant was an innocent victim of the petitioners perfidy, she is not barred from claiming moral damages. Besides, even considerations of public policy would not prevent her from recovery. As held in Jekshewitz v. Groswald:[75] Where a person is induced by the fraudulent representation of another to do an act which, in consequence of such misrepresentation, he believes to be neither illegal nor immoral, but which is in fact a criminal offense, he has a right of action against the person so inducing him for damages sustained by him in consequence of his having done such act. Burrows v. Rhodes, [1899] 1 Q.B. 816. In Cooper v. Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that

a false representation by the defendant that he was divorced from his former wife, whereby the plaintiff was induced to marry him, gave her a remedy in tort for deceit. It seems to have been assumed that the fact that she had unintentionally violated the law or innocently committed a crime by cohabiting with him would be no bar to the action, but rather that it might be a ground for enhancing her damages. The injury to the plaintiff was said to be in her being led by the promise to give the fellowship and assistance of a wife to one who was not her husband and to assume and act in a relation and condition that proved to be false and ignominious. Damages for such an injury were held to be recoverable in Sherman v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339, 343, 8 Am. Rep. 336. Furthermore, in the case at bar the plaintiff does not base her cause of action upon any transgression of the law by herself but upon the defendants misrepresentation. The criminal relations which followed, innocently on her part, were but one of the incidental results of the defendants fraud for which damages may be assessed. [7] Actions for deceit for fraudulently inducing a woman to enter into the marriage relation have been maintained in other jurisdictions. Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of public policy would not prevent recovery where the circumstances are such that the plaintiff was conscious of no moral turpitude, that her illegal action was induced solely by the defendants misrepresentation, and that she does not base her cause of action upon any transgression of the law by herself. Such considerations distinguish this case from cases in which the court has refused to lend its aid to the enforcement of a contract illegal on its face or to one who has consciously and voluntarily become a party to an illegal act upon which the cause of action is founded. Szadiwicz v. Cantor, 257

Mass. 518, 520, 154 N.E. 251, 49 A. L. R. 958.[76] Considering the attendant circumstances of the case, the Court finds the award of P200,000.00 for moral damages to be just and reasonable. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision of the Court of Appeals is AFFIRMED. Costs against the petitioner.

G.R. No. 103119 October 21, 1992 SULPICIO INTOD, petitioner, vs. HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. CAMPOS, JR., J.: Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of Appeals 1 affirming in toto the judgment of the Regional Trial Court, Branch XIV, Oroquieta City, finding him guilty of the crime of attempted murder. From the records, we gathered the following facts. In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig went to Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go with them to the house of Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a meeting with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to be killed because of a land dispute between them and that Mandaya should accompany the four (4) men, otherwise, he would also be killed. At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the instance of his companions, Mandaya pointed the location of Palangpangan's bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said room. It turned out, however, that Palangpangan was in another City and her home was then occupied by her son-in-law and his family. No one was in the room when the accused fired the shots. No one was hit by the gun fire. Petitioner and his companions were positively identified by witnesses. One witness testified that before the five men left the premises, they shouted: "We will kill you (the witness) and especially Bernardina Palangpangan and we will come back if (sic) you were not injured". 2 After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as affirmed by the Court of Appeals, holding that Petitioner was guilty of attempted murder. Petitioner seeks from this Court a modification of the judgment by holding him liable only for an impossible crime, citing Article 4(2) of the Revised Penal Code which provides: Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal Responsibility shall be incurred:

xxx xxx xxx 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. Petitioner contends that, Palangpangan's absence from her room on the night he and his companions riddled it with bullets made the crime inherently impossible. On the other hand, Respondent People of the Philippines argues that the crime was not impossible. Instead, the facts were sufficient to constitute an attempt and to convict Intod for attempted murder. Respondent alleged that there was intent. Further, in its Comment to the Petition, respondent pointed out that: . . . The crime of murder was not consummated, not because of the inherent impossibility of its accomplishment (Art. 4(2), Revised Penal Code), but due to a cause or accident other than petitioner's and his accused's own spontaneous desistance (Art. 3., Ibid.) Palangpangan did not sleep at her house at that time. Had it not been for this fact, the crime is possible, not impossible. 3 Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the Old Penal Code where: . . . it was necessary that the execution of the act has been commenced, that the person conceiving the idea should have set about doing the deed, employing appropriate means in order that his intent might become a reality, and finally, that the result or end contemplated shall have been physically possible. So long as these conditions were not present, the law and the courts did not hold him criminally liable.
5

against person or against property. 8 The rationale of Article 4(2) is to punish such criminal tendencies. 9 Under this article, the act performed by the offender cannot produce an offense against person or property because: (1) the commission of the offense is inherently impossible of accomplishment: or (2) the means employed is either (a) inadequate or (b) ineffectual. 10 That the offense cannot be produced because the commission of the offense is inherently impossible of accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the offender must be by its nature one impossible of accomplishment. 11 There must be either impossibility of accomplishing the intended act 12 in order to qualify the act an impossible crime. Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. 13 Thus: Legal impossibility would apply to those circumstances where (1) the motive, desire and expectation is to perform an act in violation of the law; (2) there is intention to perform the physical act; (3) there is a performance of the intended physical act; and (4) the consequence resulting from the intended act does not amount to a crime. 14 The impossibility of killing a person already dead 15 falls in this category. On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime. 16 One example is the man who puts his hand in the coat pocket of another with the intention to steal the latter's wallet and finds the pocket empty. 17 The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would be, although in reality, the victim was not present in said place and thus, the petitioner failed to accomplish his end. One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused, with intent to kill, aimed and fired at the spot where he thought the police officer would be. It turned out, however, that the latter was in a different place. The accused failed to hit him and to achieve his intent. The Court convicted the accused of an attempt to kill. It held that:

This legal doctrine left social interests entirely unprotected. The Revised Penal Code, inspired by the Positivist School, recognizes in the offender his formidability, 7 and now penalizes an act which were it not aimed at something quite impossible or carried out with means which prove inadequate, would constitute a felony

The fact that the officer was not at the spot where the attacking party imagined where he was, and where the bullet pierced the roof, renders it no less an attempt to kill. It is well settled principle of criminal law in this country that where the criminal result of an attempt is not accomplished simply because of an obstruction in the way of the thing to be operated upon, and these facts are unknown to the aggressor at the time, the criminal attempt is committed. In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim because the latter did not pass by the place where he was lying-in wait, the court held him liable for attempted murder. The court explained that: It was no fault of Strokes that the crime was not committed. . . . It only became impossible by reason of the extraneous circumstance that Lane did not go that way; and further, that he was arrested and prevented from committing the murder. This rule of the law has application only where it is inherently impossible to commit the crime. It has no application to a case where it becomes impossible for the crime to be committed, either by outside interference or because of miscalculation as to a supposed opportunity to commit the crime which fails to materialize; in short it has no application to the case when the impossibility grows out of extraneous acts not within the control of the party. In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was nothing to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit: It being an accepted truth that defendant deserves punishment by reason of his criminal intent, no one can seriously doubt that the protection of the public requires the punishment to be administered, equally whether in the unseen depths of the pocket, etc., what was supposed to exist was really present or not. The community suffers from the mere alarm of crime. Again: Where the thing intended (attempted) as a crime and what is done is a sort to create alarm, in other words, excite apprehension that the evil; intention will be carried out, the incipient act which the law

of attempt takes cognizance of is in reason committed. In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that the latter was inside. However, at that moment, the victim was in another part of the house. The court convicted the accused of attempted murder. The aforecited cases are the same cases which have been relied upon by Respondent to make this Court sustain the judgment of attempted murder against Petitioner. However, we cannot rely upon these decisions to resolve the issue at hand. There is a difference between the Philippine and the American laws regarding the concept and appreciation of impossible crimes. In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and made the punishable. Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent regarding this matter. What it provided for were attempts of the crimes enumerated in the said Code. Furthermore, in said jurisdiction, the impossibility of committing the offense is merely a defense to an attempt charge. In this regard, commentators and the cases generally divide the impossibility defense into two categories: legal versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court held that: . . . factual impossibility of the commission of the crime is not a defense. If the crime could have been committed had the circumstances been as the defendant believed them to be, it is no defense that in reality the crime was impossible of commission. Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an attempt. In U.S. vs. Berrigan, 24 the accused was indicated for attempting to smuggle letters into and out of prison. The law governing the matter made the act criminal if done without knowledge and consent of the warden. In this case, the offender intended to send a letter without the latter's knowledge and consent and the act was performed. However, unknown to him, the transmittal was achieved with the warden's knowledge and consent. The lower court held the accused liable for attempt but the appellate court reversed. It held unacceptable the contention of the state that "elimination of impossibility as a defense to a charge of criminal attempt, as suggested by the Model Penal Code and the proposed federal legislation, is consistent with the overwhelming modern view". In disposing of this contention, the Court held that the federal statutes did not contain such provision, and thus, following the principle of legality, no person could be criminally liable for an act which was not made criminal by law. Further, it said:

Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the offense of attempt irrespective of legal impossibility until such time as such legislative changes in the law take place, this court will not fashion a new non-statutory law of criminal attempt. To restate, in the United States, where the offense sought to be committed is factually impossible or accomplishment, the offender cannot escape criminal liability. He can be convicted of an attempt to commit the substantive crime where the elements of attempt are satisfied. It appears, therefore, that the act is penalized, not as an impossible crime, but as an attempt to commit a crime. On the other hand, where the offense is legally impossible of accomplishment, the actor cannot be held liable for any crime neither for an attempt not for an impossible crime. The only reason for this is that in American law, there is no such thing as an impossible crime. Instead, it only recognizes impossibility as a defense to a crime charge that is, attempt. This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of accomplishing the criminal intent is not merely a defense, but an act penalized by itself. Furthermore, the phrase "inherent impossibility" that is found in Article 4(2) of the Revised Penal Code makes no distinction between factual or physical impossibility and legal impossibility. Ubi lex non distinguit nec nos distinguere debemos. The factual situation in the case at bar present a physical impossibility which rendered the intended crime impossible of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to make the act an impossible crime. To uphold the contention of respondent that the offense was Attempted Murder because the absence of Palangpangan was a supervening cause independent of the actor's will, will render useless the provision in Article 4, which makes a person criminally liable for an act "which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment . . ." In that case all circumstances which prevented the consummation of the offense will be treated as an accident independent of the actor's will which is an element of attempted and frustrated felonies. WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent Court of Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of an impossible crime as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Having in mind the social danger and degree of criminality shown by Petitioner, this Court sentences him to suffer the penalty of six (6) months of arresto mayor,

together with the accessory penalties provided by the law, and to pay the costs. SO ORDERED.

VALENZUELA V. PEOPLE 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[1] rendered decades ago by the Court of Appeals, upholding the existence of frustrated theft of which the accused in both cases were found guilty. However, the rationale behind the rulings has never been affirmed by this Court. As far as can be told,2[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[3] A more cursory treatment of the question was followed in 1929, in People v. Sobrevilla,4[4] and in 1984, in Empelis v. IAC.5[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 Information6[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[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[8] The filched items seized from the duo were four (4) cases of Tide Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of detergent, the goods with an aggregate value of P12,090.00.9[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[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[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[12] Meanwhile, petitioner testified during trial that he and his cousin, a Gregorio Valenzuela,13[13] had been at the parking lot, walking beside the nearby BLISS complex and headed to ride a tricycle going to Pag-asa, when they saw the security guard Lago fire a shot. The gunshot caused him and the other people at the scene to start running, at which point he was apprehended by Lago and brought to the security office. Petitioner claimed he was detained at the security office until around 9:00 p.m., at which time he and the others were brought to the Baler Police Station. At the station, petitioner denied having stolen the cartons of detergent, but he was detained overnight, and eventually brought to the prosecutors office where he was charged with theft.14[14] During petitioners crossexamination, he admitted that he had been employed as a bundler of GMS Marketing, assigned at the supermarket though not at SM.15[15]

In a Decision16[16] promulgated on 1 February 2000, the Regional Trial Court (RTC) of Quezon City, Branch 90, convicted both petitioner and Calderon of the crime of consummated theft. They were sentenced to an indeterminate prison term of two (2) years of prision correccional as minimum to seven (7) years of prision mayor as maximum.17[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[18] but only petitioner filed a brief19[19] with the Court of Appeals, causing the appellate court to deem Calderons appeal as abandoned and consequently dismissed. Before the Court of Appeals, petitioner argued that he should only be convicted of frustrated theft since at the time he was apprehended, he was never placed in a position to freely dispose of the articles stolen.20[20] However, in its Decision dated 19 June 2003,21[21] the Court of Appeals rejected this contention and affirmed petitioners conviction.22[22] Hence the present Petition for Review,23[23] which expressly seeks that petitioners conviction be modified to only of Frustrated Theft.24[24]

In arguing that he should only be convicted of frustrated theft, petitioner cites26[26] two decisions rendered many years ago by the Court of Appeals: People v. Dio27[27] and People v. Flores.28[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.

Even in his appeal before the Court of Appeals, petitioner effectively conceded both his felonious intent and his actual participation in the theft of several cases of detergent with a total value of P12,090.00 of which he was charged.25[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.

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

II.

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

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

is completely passed in case of frustrated crimes, for in such instances, *s+ubjectively the crime is complete.34[34] III.

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

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.

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[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[40]

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.

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[31] After that point has been breached, the subjective phase ends and the objective phase begins.32[32] It has been held that if the offender never passes the subjective phase of the offense, the crime is merely attempted.33[33] On the other hand, the subjective phase

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.

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[35] Accepted in this jurisdiction as material in crimes mala in se,36[36] mens rea has been defined before as a guilty mind, a guilty or wrongful purpose or criminal intent,37[37] and essential for criminal liability.38[38] It

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

Art. 308. Who are liable for theft. Theft is committed by any person

who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latters consent. Theft is likewise committed by: 1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner; 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 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.

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.

2.

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[42]

3.

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[43] a definition similar to that by Paulus that a thief handles (touches, moves) the property of another.44[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[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[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[47] However, a conflicting line of cases decided by the Court of Appeals ruled, alternatively, that there must be permanency in the taking48[48] or an intent to permanently deprive the owner of the stolen property;49[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[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[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

Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which theft may be committed.41[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 SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction for only attempted theft would have afforded him.

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[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:

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[52] as to when a particular felony is not produced, despite the commission of all the acts of execution.

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

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[56]

U.S. v. Adiao53[53] apparently supports that notion. Therein, a customs inspector was charged with theft after he abstracted a leather belt from the baggage of a foreign national and secreted the item in his desk at the Custom House. At no time was the accused able to get the merchandise out of the Custom House, and it appears that he was under observation during the entire transaction.54[54] Based apparently on those two circumstances, the trial court had found him guilty, instead, of frustrated theft. The Court reversed, saying that neither

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[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[58] In rejecting the contention that only frustrated theft was established, the Court simply said, without further comment or elaboration:

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. 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[63]

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

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[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[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:

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

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[62]

Dio was decided by the Court of Appeals in 1949, some 31 years after Adiao and 15 years before Flores. The accused therein, a driver employed by the United States Army, had driven his truck into the port area of the South Harbor, to unload a truckload of materials to waiting U.S. Army personnel. After he had finished unloading, accused drove away his truck from the Port, but as he was approaching a checkpoint of the

Integrating these considerations, the Court of Appeals then concluded:

Dio thus laid down the theory that the ability of the actor to freely dispose of the items stolen at the time of apprehension is determinative as to whether the theft is consummated or frustrated. This theory was applied again by the Court of Appeals some 15 years later, in Flores, a case which according to the division of the court that decided it, bore no substantial variance between the circumstances [herein] and in [Dio+.64[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[65] The accused was prosecuted for theft qualified by abuse of

confidence, and found himself convicted of the consummated crime. Before the Court of Appeals, accused argued in the alternative that he was guilty only of attempted theft, but the appellate court pointed out that there was no intervening act of spontaneous desistance on the part of the accused that literally frustrated the theft. However, the Court of Appeals, explicitly relying on Dio, did find that the accused was guilty only of frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found no substantial variance between Dio and Flores then before it. The prosecution in Flores had sought to distinguish that case from Dio, citing a traditional ruling which unfortunately was not identified in the decision itself. However, the Court of Appeals pointed out that the said traditional ruling was qualified by the words is placed in a situation where *the actor+ could dispose of its contents at once.66[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[67] though no further qualification was offered what the effect would have been had that alternative circumstance been present instead.

menos momentaneamente. The qualifier siquiera sea mas o menos momentaneamente proves another important consideration, as it implies that if the actor was in a capacity to freely dispose of the stolen items before apprehension, then the theft could be deemed consummated. Such circumstance was not present in either Dio or Flores, as the stolen items in both cases were retrieved from the actor before they could be physically extracted from the guarded compounds from which the items were filched. However, as implied in Flores, the character of the item stolen could lead to a different conclusion as to whether there could have been free disposition, as in the case where the chattel involved was of much less bulk and more common x x x, *such+ as money x x x.68[68]

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[72]

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

There are at least two other Court of Appeals rulings that are at seeming variance with the Dio and Flores rulings. People v. Batoon73[73] involved an accused who filled a container with gasoline from a petrol pump within view of a police detective, who followed the accused onto a passenger truck where the arrest was made. While the trial court found the accused guilty of frustrated qualified theft, the Court of Appeals held that the accused was guilty of consummated qualified theft, finding that *t+he facts of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate that actual taking with intent to gain is enough to consummate the crime of theft.74[74]

Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to whether the crime of theft was produced is the ability of the actor to freely dispose of the articles stolen, even if it were only momentary. Such conclusion was drawn from an 1888 decision of the Supreme Court of Spain which had pronounced that in determining whether theft had been consummated, es preciso que so haga en circunstancias tales que permitan al sustractor de aquella, siquiera sea mas o

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[69]], theft is consummated upon the voluntary and malicious taking of property belonging to another which is realized by the material occupation of the thing whereby the thief places it under his control and in such a situation that he could dispose of it at once. This ruling seems to have been based on Viadas opinion that in order the theft may be consummated, es preciso que se haga en circumstancias x x x [70[70]+71[71]

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

any element of theft, is the use or benefit that the thieves expected from the commission of the offense.76[76]

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:

arrival of the owner, and not because of spontaneous desistance by the offenders.

In pointing out the distinction between Dio and Espiritu, Reyes wryly observes that *w+hen the meaning of an element of a felony is controversial, there is bound to arise different rulings as to the stage of execution of that felony.77[77] Indeed, we can discern from this survey of jurisprudence that the state of the law insofar as frustrated theft is concerned is muddled. It fact, given the disputed foundational basis of the concept of frustrated theft itself, the question can even be asked whether there is really such a crime in the first place. IV. The Court in 1984 did finally rule directly that an accused was guilty of frustrated, and not consummated, theft. As we undertake this inquiry, we have to reckon with the import of this Courts 1984 decision in Empelis v. IAC.78[78]

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[80]

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.

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

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[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

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[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

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

Son reos de hurto: 1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su dueo.

2.

Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la apropriaren co intencin de lucro. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado, salvo los casos previstos en los artculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y 3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617 y 618.

mannequin, and who then proceeded to throw away the garment as he fled.84[84]

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

3.

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[85] A few decades later, the esteemed Eugenio Cuello Caln pointed out the inconsistent application by the Spanish Supreme Court with respect to frustrated theft.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish Supreme Court decisions were handed down. However, the said code would be revised again in 1932, and several times thereafter. In fact, under the Codigo Penal Espaol de 1995, the crime of theft is now simply defined as [e]l que, con nimo de lucro, tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado82[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 questionanswer form in his 1926 commentaries on the 1870 Codigo Penal de Espaa. Therein, he raised at least three questions for the reader whether the crime of frustrated or consummated theft had occurred. The passage cited in Dio was actually utilized by Viada to answer the question whether frustrated or consummated theft was committed *e]l que en el momento mismo de apoderarse de la cosa ajena, vindose sorprendido, la arroja al suelo.83[83] Even as the answer was as stated in Dio, and was indeed derived from the 1888 decision of the Supreme Court of Spain, that decisions factual predicate occasioning the statement was apparently very different from Dio, for it appears that the 1888 decision involved an accused who was surprised by the employees of a haberdashery as he was abstracting a layer of clothing off a

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

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

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

This divergence of opinion convinces us, at least, that there is no weighted force in scholarly thought that obliges us to accept frustrated theft, as proposed in Dio and Flores. A final ruling by the Court that there is no crime of frustrated theft in this

jurisdiction will not lead to scholastic pariah, for such a submission is hardly heretical in light of Cuello Calns position.

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

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

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.

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

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[92] And long ago, we asserted in People v. Avila:93[93]

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[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[89]

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

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[94]

It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of

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

capable of free disposal at any stage, even after the taking has been consummated.

WHEREFORE, the petition is DENIED. Costs against petitioner.

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

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

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.

SO ORDERED. PEOPLE OF THE PHILIPPINES, appellee, vs. ARNULFO ORANDE y CHAVEZ, appellant. DECISION CORONA, J.: This is an appeal from the decision96[1] of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 97-159184, 97159185, 97-159186 and 97-159187, convicting appellant for two counts of simple rape, one count of statutory rape and one count of frustrated rape, and sentencing him to suffer three counts of reclusion perpetua for the simple and statutory rapes, and an indeterminate penalty of 8 years to 14 years and 8 months of imprisonment for the frustrated rape. Complainant Jessica Castro charged appellant with raping her four times between January 1994 and November 1996. The informations filed against appellant by the City Prosecutor read: In Criminal Case No. 97-159184 That on or about January 14, 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, by means of force and intimidation, that is, by threatening to kill said Jessica Castro, had carnal knowledge of the latter against her will. CONTRARY TO LAW.

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[95] since the Court would have carved a viable means for offenders to seek a mitigated penalty under applied circumstances that do not admit of easy classification. It is difficult to formulate definite standards as to when a stolen item is susceptible to free disposal by the thief. Would this depend on the psychological belief of the offender at the time of the commission of the crime, as implied in Dio? Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the property, the location of the property, the number and identity of people present at the scene of the crime, the number and identity of people whom the offender is expected to encounter upon fleeing with the stolen property, the manner in which the stolen item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would come into account, relevant as that would be on whether such property is

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

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

In Criminal Case No. 97-159185That on or about April 15, 1994, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, by means of force and intimidation, that is, by threatening JESSICA CASTRO Y DE LA CRUZ of death should she resist or report the matter to anybody, had carnal knowledge of said Jessica C. Castro, a minor, under 12 years of age, against her will.

CONTRARY TO LAW. In Criminal Case No. 97-159186 That on or about March 12, 1995, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, by means of force and intimidation, that is, by threatening Jessica Castro y de la Cruz of death should she resist or report the matter to anybody, had carnal knowledge of said Jessica C. Castro, a minor, under 12 years of age, against her will. CONTRARY TO LAW. In Criminal Case No. 97-159187That on or about November 17, 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, by means of force and intimidation, that is, by threatening to kill said Jessica Castro, had carnal knowledge of the latter against her will. CONTRARY TO LAW.97[2] Arraigned on September 5, 1997, appellant pleaded not guilty.98[3] Thereafter, trial on the merits ensued. However, the trial was subsequently postponed for eight months as Jessica was suffering from psychological and emotional trauma from her horrifying ordeal.99[4] The lower court ordered the suspension of the trial to enable her to undergo psychological therapy at the Child Protection Unit of the Philippine General Hospital. Trial resumed in November 1998 with the prosecution presenting Jessica as its first witness. Incidentally, prior to the filing of the aforementioned cases, Jessica also filed a criminal case against her mother, Girlie de la Cruz Castro, and the appellant for child abuse. The evidence of the prosecution showed that appellant was the common law husband of Jessicas mother Girlie. Appellant, a pedicab driver, started living with Girlie and her three children sometime in 1993 in a two-storey house in Paco, Manila owned by

Girlies mother. They occupied a room on the ground floor which served as their bedroom, kitchen and living room. The adjacent room was occupied by Girlies brother and his family while the room on the second floor was occupied by Girlies sister and her family. Girlie gave birth to two more children by appellant. To earn a living, Girlie sold fish at the Paco Market, buying her stock from the Navotas fish market late at night and sometimes in the early hours of the morning. The first incident of rape, subject of Criminal Case No. 97-159185, happened sometime in April 1994 when Girlie was at the fish market. Appellant was left in the house with Jessica, her siblings and appellants two children with Girlie. Jessica was then watching television while her brothers and sisters were sleeping beside her. Appellant grabbed Jessicas right hand and lasciviously jabbed her palm with his finger. He ordered her to undress which she obeyed out of fear as appellant was armed with a knife. Appellant then removed his pants, placed himself on top of complainant and succeeded in partially penetrating her. Jessica felt pain in her vagina and saw it smeared with blood and semen. She tried to leave the room but appellant locked the door and threatened to kill her if she told her mother what happened. Jessica was then only nine years and four months old, having been born on December 19, 1983.100[5] The second rape, subject of Criminal Case No. 97-159186, occurred on March 14, 1995 at around 11:00 a.m. when Jessica was 11 years and 3 months old. Girlie was in the market while Jessica and her siblings were left in the house watching television. Soon after, appellant arrived and sent the children, except Jessica, to play outside. Left alone with Jessica, appellant removed his clothes, pulled out a balisong and ordered Jessica to undress. He then held her by the shoulder and made her lie down. Then he mounted her. Appellant reached his orgasm shortly after penetrating her slightly. He stood up with semen still dripping from his penis. Apparently still not satisfied, he knelt down, kissed and fingered Jessicas vagina, then mashed her breasts. He only stopped what he was doing when someone knocked at the door. Appellant and Jessica hurriedly put on their clothes and, as appellant opened the door, Jessica went to the bathroom to wash herself. The third rape, subject of Criminal Case No. 97-159184, occurred on January 14, 1996, when Jessica was 12 years and 6 months old. She arrived from school at around 11:00 a.m. While she was changing her clothes, appellant ordered Jessicas brother and sister to visit their mother at the Paco Market and sent his

children to play outside the house. When appellant and Jessica were alone, he removed his pants, got his knife and ordered her to undress. Since she was afraid, Jessica was forced to remove her clothes. Appellant then told her they would do what they did before, pulled her towards him and made her lie down on the floor. While holding the knife, he kissed and fingered her vagina, then mashed her breasts. Thereafter, he placed himself on top of her, partially penetrated her until he ejaculated. When Jessicas brother and sister arrived, appellant hurriedly put on his clothes. Jessica did the same. She then went to the bathroom to wash herself and change her bloodstained underwear. The last rape, subject of Criminal Case No. 97-159187, occurred sometime in November 1996, at around 11:00 p.m. Girlie was again in the public market while Jessica was at home with her siblings who were all asleep. Appellant told Jessica that they would again do what they did before but she refused, saying that she might get pregnant. Appellant brandished his balisong and threatened to kill her. He then covered himself and Jessica with a blanket, removed his pants and her shorts, and placed himself on top of her. His penis slightly penetrated her vagina. He mashed her breasts, inserted his finger into her vagina and kissed it. Jessica pushed him away and told him she wanted to sleep. Then she put on her shorts. Appellant also put on his pants and told Jessica not to tell her mother what he did to her. He assured her that she would not get pregnant because she was not yet menstruating. Sometime in March 1997, a teacher of Jessica, Mrs. Adoracion Mojica, noticed the unusual treatment of Jessica by appellant. When confronted by Mrs. Mojica, Jessica admitted that appellant had raped her several times. Mrs. Mojica called up Jessicas aunt, Mrs. Antonina de la Cruz, and narrated to her what Jessica had confessed. Mrs. De la Cruz then accompanied Jessica to the police station to file a complaint and to the Philippine General Hospital (PGH), Child Protection Unit, to be examined. Dr. Bernadette J. Madrid, Director of the Child Protection Unit, examined Jessica and the findings revealed the following: Genital Examination: Hymen: Estrogenized, Attenuated from 1 oclock position to 4 o clock position and from 6 o clock to 12 o clock position Notch at 5 oclock Healed hymenal tear at the 6 o clock position Anus: Normal rectal tone, no pigmentation, no scars, normal rugae101[6]

For his defense, appellant advanced denial and alibi. He denied ever raping Jessica and testified that, during the alleged second rape incident, he was driving his pedicab. His live-in partner Girlie testified that, during the purported first and second incidents of rape, appellant was with her to buy fish in Navotas and sell them in Paco market. Appellant argued that since Jessica disapproved of his relationship with her mother, she had the motive to falsely accuse him of raping her. Further, he pointed out the improbability of the alleged first and fourth incidents of rape inasmuch as the make-up of the room made it impossible for Jessicas siblings not to wake up during the commission of the crime. Appellant further contended that Jessicas failure to cry out for help, knowing that her mothers relatives were in the same house, made her story of rape unbelievable. The trial court gave credence to the testimony of Jessica and convicted the appellant: WHEREFORE, in Criminal Case No. 97-159184, Accused Arnulfo Orande y Chavez is convicted of simple rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law. In Criminal Case No. 97-159185, the accused is also convicted of simple rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law. In Criminal Case No. 97-159186, the accused is likewise convicted of statutory rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua with all the accessory penalties provided by law. In Criminal Case No. 97-159187, the accused is convicted of frustrated rape under Article 335 of the Revised Penal Code and sentenced to suffer the indeterminate penalty of 8 years of prision mayor as minimum to 14 years and 8 months of reclusion temporal as maximum, and to pay the costs. On the civil liability of the accused in the four cases, he is ordered to pay the victim, Jessica Castro, moral, nominal and exemplary damages in the respective sums of P400,000.00, P200,000.00 and P100,000.00. SO ORDERED.102[7]

In this appeal, appellant assigns the following errors: I. THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONE COUNT OF STATUTORY RAPE, ONE COUNT OF FRUSTRATED RAPE AND TWO COUNTS OF SIMPLE RAPE. II. THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF FRUSTRATED RAPE DESPITE THE FACT THAT UNDER PREVAILING JURISPRUDENCE THERE IS NO SUCH CRIME.103[8] The Office of the Solicitor General argues that appellants convictions should be upheld as the prosecution was able to prove his guilt beyond reasonable doubt. The appeal is partly meritorious. This Court finds that the prosecution was able to prove beyond reasonable doubt appellants guilt for two counts of statutory rape and two counts of simple rape, there being no such crime as frustrated rape in this jurisdiction. After a thorough review of the records, we find no reason to deviate from the well-established rule that the credibility of witnesses is a matter best assessed by the trial court because of its unique opportunity to observe them firsthand and to note their demeanor, conduct and attitude.104[9] In the present case, the trial court found Jessicas testimony convincing, logical and credible. Moreover, the court a quo: xxx discerned from her demeanor the intense mental torture, embarrassment, emotional pain and bitterness she suffered whenever she was asked to recall and narrate the humiliating sexual ordeals she had gone through, and her ... desire for justice and the punishment of her defiler. She was continually in tears while testifying and the proceeding was interrupted several times to calm her down.105[10] No young woman would allow an examination of her private part and subject herself to the humiliation and rigor of a public trial if

the accusations were not true, or if her motive were other than a fervent desire to seek justice.106[11] We do not subscribe to appellants theory that the filing of the rape charges was motivated by Jessicas dislike for him. To charge appellant with rape for the sole purpose of exacting revenge, as appellant implies in his brief, takes a certain kind of psychiatric depravity which this Court does not see in Jessica. The fact that Jessica had to undergo psychological treatment107[12] after her first testimony in February 1998 belies appellants defense. The need for such counseling came about after the defilement she suffered in the hands of appellant. In fact, it was the incidents of rape that caused her psychological and emotional imbalance which required therapy at the Child Protection Unit of the Philippine General Hospital. The alleged inconsistencies and improbabilities in Jessicas testimony did not discredit her nor reveal any fabrication. Inconsistencies regarding minor details were attributable to the fact that she was recalling details of incidents that happened three years before, not to mention the fact that these details pertained to something she had very little knowledge of, being then only nine years and three months old when the first rape was committed. We have consistently ruled that errorless recollection of a harrowing experience cannot be expected of a witness (a very young one at that) specially when she is recounting details of an occurrence so humiliating, so painful and, in this case, so alien as rape.108[13] Appellant makes much of the fact that two incidents of rape happened inside the room where the other children were sleeping. This Court has repeatedly held that rape can be committed in the same room where other members of the family are also sleeping, in a house where there are other occupants or even in places which to many might appear unlikely and high-risk venues for its commission.109[14] Also, the failure of Jessica to cry out for help during the incidents in question, inspite of the physical proximity of her relatives, or to report to them what happened, did not at all make her testimony improbable inasmuch as it is not uncommon for a young girl of

tender age to be easily intimidated into silence and conceal for sometime the violation of her honor, even by the mildest threat to her life.110*15+ Besides, Girlie, Jessicas mother, had a rift with her siblings who lived in the same house and forbade Jessica to socialize with them. It was likewise highly probable that the strained relations between Jessicas mother, uncle and aunt prevented Jessica from confiding in them. In a number of cases, this Court has likewise ruled that delay, even of three years, in reporting the crime does not necessarily detract from the witness credibility as long as it is satisfactorily explained.111[16] Jessica was threatened by appellant that he would kill her mother and relatives if she reported the rape. A young girl like Jessica can easily be mesmerized by fear of bodily harm and, unlike a mature woman, cannot be expected to have the courage or confidence to immediately report a sexual assault on her, specially when a death threat hangs over her head.112[17] In view of the credible testimony of Jessica, appellants defenses of denial and alibi deserve no consideration. These weak defenses cannot stand against the positive identification and categorical testimony of a rape victim.113[18] The court a quo convicted appellant of one count of frustrated rape in Criminal Case No. 97-151987, the dispositive portion of which read: xxx xxx xxx.

SO ORDERED.114[19] However, we agree with the observation of the Solicitor General that the court a quo was referring to Criminal Case No. 97159185, and not Criminal Case No. 97-159187, in convicting appellant of frustrated rape: The trial court convicted appellant of simple rape in Criminal Case No. 97-159185. However, the factual basis thereof in the body of the decision reads: With regard to Criminal Case No. 97-159185, the Court has gathered that sometime in April, 1994, at around 11:00 p.m., Jessica and her two siblings together with the accused were in their house, while their mother, Girlie, was in Navotas buying fish. Jessica was watching TV in a lying position beside her two sleeping siblings, when the accused held Jessicas right hand and jabbed her palm with his finger. Then he told her to remove her short pants, panty and T-shirt, after which the accused removed his pants and with a balisong in his hand, he began kissing the sensitive parts of her body. Then he placed himself on top of her and tried to have sexual intercourse with her. He succeeded in nudging her sex organ with the tip of his penis, but was unable to accomplish penetration, due to the resistance offered by her by struggling and kicking him. Nonetheless, the accused had orgasm and Jessicas sex organ was smeared with his semen. (emphasis supplied, p. 2, Decision) Such was the only rape incident where the trial court concluded there was no penetration. On the other hand, the factual basis for the conviction in Criminal Case No. 97-159187 in the body of the trial courts decision reads: Anent Criminal Case No. 97-159187, the records further show that in November, 1996, at around 11:00 p.m., Jessica was watching TV while the other siblings were asleep and her mother was away, when accused again made sexual advances to her. She resisted and told accused she might become pregnant, but the accused persisted and threatened to kill her at that very moment if she would not submit to his lust. As in the previous occasions, he again succeeded in having carnal knowledge of the helpless and scared victim. After her defilement, the victim continually cried and the accused tried to calm her down by assuring her that she would not be impregnated, because she has not yet began to have menstruation (p. 3, Decision)

Consequently the conviction for frustrated rape should pertain to the incident in April 1994 described in Criminal Case No. 97159185 and not Criminal Case No. 97-159187 since this case refers to the November 1996 rape incident where the findings of the trial court was that there was carnal knowledge.115[20] Moreover, the oversight of the court a quo in interchanging Criminal Case Nos. 97-159185 and 97-159187 is further evidenced by the following paragraph found in page four of the trial court decision: In Criminal Case 97-159185 and 97-159184, the acts of the accused in having carnal knowledge of the victim by intimidation on two separate occasions in [the] early or middle part [of] 1996, and in November of the same year, constitute two separate crimes of qualified rape under R.A. 7659 and the penalty prescribed therefore is death by lethal injection.116[21] (Emphasis Ours) The rape incidents which occurred in 1996 were designated as Criminal Case Nos. 97-159184 and 97-159187, as borne out by the informations filed by the City Prosecutor.117[22] Thus, the conviction for frustrated rape should pertain to Criminal Case No. 97-159185 and not Criminal Case No. 97-159187. Regarding Criminal Case No. 97-159185 (the April 1994 rape incident), the Court sustains appellants contention that there is no such crime as frustrated rape, as we have ruled in a long line of cases.118[23] Recently, in People vs. Quinanola,119[24] we again reiterated the rule: Let it be said once again that, as the Revised Penal Code presently so stands, there is no such crime as frustrated rape. In People vs. Orita, the Court has explicitly pronounced: Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his purpose and, from that moment also all the essential elements of the

In Criminal Case No. 97-159187, the accused is convicted of frustrated rape under Article 335 of the Revised Penal Code and sentenced to suffer the indeterminate penalty of 8 years of prision mayor as minimum, and to pay the costs. xxx xxx xxx.

offense have been accomplished. Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases (People vs. Oscar, 48 Phil. 527; People vs. Hernandez, 49 Phil. 980; People vs. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People vs. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People vs. Tayaba, 62 Phil. 559; People vs. Rabadan, et al., 53 Phil. 694; United States vs. Garcia, 9 Phil. 434) because not all acts of execution was performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed. Of course, We are aware of our earlier pronouncement in the case of People vs. Eriia, 50 Phil. 998 [1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of penetration of the genital organ of the offended party. However, it appears that this is a stray decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead provision. The Eriia case, supra, might have prompted the lawmaking body to include the crime of frustrated rape in the amendments introduced by said laws. The Court is not unaware that Republic Act No. 7659, amending Article 335 of the Revised Penal Code, has retained the provision penalizing with reclusion perpetua to death an accused who commits homicide by reason or on the occasion of an attempted or frustrated rape. Until Congress sees it fit to define the term frustrated rape and thereby penalize it, the Court will see its continued usage in the statute book as being merely a persistent lapse in language. (emphasis ours) Thus, it was error for the trial court to convict appellant of frustrated rape. Besides, after a careful review of the records, we find that the rape was in fact consummated. Jessica initially testified that, although appellant did not succeed in inserting his penis in her vagina, she felt his sex organ touch hers and she saw and felt semen come out of his penis and smear her

vagina.120[25] In response to the clarificatory questions asked by the prosecutor, Jessica testified that the appellant was able to slightly penetrate her because she felt pain and her vagina bled.121[26] It has been held that, to be convicted of rape, there must be convincing and sufficient proof that the penis indeed touched the labia or slid into the female organ, and not merely stroked the external surface thereof.122[27] Nevertheless, we have also ruled in cases where penetration is not established that the rape is deemed consummated if the victim felt pain, or the medico-legal examination finds discoloration in the inner lips of the vagina, or the labia minora is already gaping with redness, or the hymenal tags are no longer visible.123[28] In the present case, the victim testified that she felt pain and her vagina bled, indisputable indications of slight penetration or, at the very least, that the penis indeed touched the labia and not merely stroked the external surface thereof. Thus, the appellant should be found guilty of (consummated) rape and not merely frustrated or attempted rape. Pursuant to Section 11 of RA 7659 or the Heinous Crimes Law, the penalty of death is imposed if rape is committed when the victim is under 18 years of age and the offender is the common-law spouse of the parent of the victim. However, the trial court was correct in not imposing the death penalty in Criminal Case Nos. 97-159184 and 97-159187 because the qualifying circumstances of age and relationship of the victim to the appellant were not alleged in the information.124[29] Thus, appellant can only be convicted of simple rape punishable by reclusion perpetua under Article 335 of the Revised Penal Code. However, in Criminal Case Nos. 97-159185 and 97-159186, the appellant can be convicted of statutory rape also punishable by reclusion perpetua under Article 335 of the Revised Penal Code inasmuch as the age of Jessica was alleged in the information125[30] and duly proven during the trial by the presentation of her birth certificate.126[31]

We award moral damages of P50,000 for each count of rape as moral damages are automatically awarded to rape victims without need of pleading or proof.127[32] We also award civil indemnity ex delicto of P50,000 for each count of rape in the light of the ruling that civil indemnity, which is distinct from moral damages, is mandatory upon the finding of the fact of rape.128[33] We likewise award exemplary damages of P25,000 for each count of rape consistent with the prevailing jurisprudence on the matter.129[34] WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 18, in Criminal Case Nos. 97-159 184 to 87 is AFFIRMED with the following MODIFICATIONS: 1. In Criminal Case No. 97-159 184, appellant is convicted of simple rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua. 2. In Criminal Case No. 97-159 185, appellant is convicted of statutory rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua. 3. In Criminal Case No. 97-159186, appellant is convicted of statutory rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua. 4. In Criminal Case No. 97-159187, appellant is convicted of simple rape under Article 335 of the Revised Penal Code and sentenced to suffer the penalty of reclusion perpetua. For each count of rape, appellant is ordered to pay complainant Jessica Castro P50,000 as moral damages, P50,000 as civil indemnity and P25,000 as exemplary damages, or a total of P500,000. Costs against appellant.

x----------------------------------------------------------------------------------------x PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee, - versus MONICO DE CHAVEZ y PERLAS, JUANITO MION y RODRIGUEZ, and ASUNCION MERCADO y MARCIANO, Accused-Appellants. DECISION

VELASCO, JR., J.: The Case This is an appeal130[1] by accused-appellants Juanito Mion y Rodriguez and Asuncion Mercado y Marciano seeking their acquittal by a reversal of the November 27, 2008 Decision131[2] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 002212 which affirmed with modification their earlier conviction by the Regional Trial Court (RTC), Branch 34 in Calamba, Laguna, of the crime of Kidnapping as defined and penalized under Art. 267 of the Revised Penal Code, as amended, in Criminal Case No. 6073-98-C. The Facts Criminal Case No. 6073-98-C of the court of origin traces its formal beginning in an Information132[3] charging accused-appellants Juanito Mion y Rodriguez (Juanito) and Asuncion Mercado y Marciano (Asuncion) together with Monico De Chavez y Perlas (Monico) and Joselito Lanip y Genebraldo (Joselito) with the crime of Kidnapping for Ransom as defined and penalized under Art. 267 of the Revised Penal Code (RPC), as amended, which reads as follows:

of this Honorable Court, the above-named Accused, conspiring, confederating and mutually helping one another and grouping themselves together, did then and there, by force and intimidation, willfully, unlawfully and feloniously take, carry away and deprive PAOLO EARVIN ALONZO y CLAUD of his liberty against his will for the purpose of extorting ransom and in fact a demand for ransom was made as a condition for his release in the amount of FOUR MILLION PESOS [P4,000,000] to the damage and prejudice of PAOLO EARVIN ALONZO y CLAUD in such amount and such other amounts as may be awarded to him under the provisions of the New Civil Code. CONTRARY TO LAW.133[4]

Paolo testified that on August 14, 1998 at around 3 p.m., he was at his school (Christian School International) in Los Baos when he was called to the door of his classroom where Asuncion, claiming to be someone from Zamboanga, told him that his grandfather had met an accident and wanted to talk to him. Paolo voluntarily went with the woman who brought him to a Ford Fiera where he saw three men, two of whom were Monico and Juanito. From Los Baos, they proceeded to the Jamboree site towards Calamba, then passed through the South Expressway and took the Calamba exit. Afterwards they stopped at a vacant lot where Monico bound him hand and foot and threatened him not to move; he was likewise blindfolded. He was placed at the front between the driver and another man. After several hours of travel, he was brought inside a house. He was able to talk to his grandmother, Corazon, three times telling her what his captors told him to say. He was held captive for 11 days until he was rescued at dawn on August 25, 1998.

Upon arraignment on October 5, 1998, Juanito, Asuncion, Monico and Joselito, assisted by their respective counsels, uniformly entered a plea of Not Guilty. After the termination of the pre-trial conference on October 19, 1998, trial ensued.

Version of the Prosecution

Corazon testified that one of Paolos captors called her in the evening of August 14, 1998 informing her that they have Paolo in custody. The next day, the man demanded a ransom of PhP 4M for Paolo. From August 15, 1998 until Paolos rescue, the man called her house about a dozen times. At around 4 a.m. on August 25, 1998, they were informed by one Col. Gamban that Paolo has been rescued and that they should proceed to Camp Crame. At Camp Crame at around 6:30 a.m., in the office of then PAOCTF Chief Gen. Lacson, they saw Paolo and the kidnappers. She recognized Monico, who is the husband of her niece, Julie Marquez de Chavez. She talked to Monico who answered that they *Alonzos+ are the only ones who could help him as he was heavily indebted in the amount of PhP 800,000.

That on or about August 14, 1998 at the Christian School International at U.P. Los Banos, and within the jurisdiction

To bolster its case against the four accused, the prosecution presented the testimonies of: (1) Paolo Earvin C. Alonzo (Paolo), the victim of the kidnapping; (2) Corazon Marquez Alonzo (Corazon), the grandmother of Paolo; (3) Dominador Alonzo (Dominador), the grandfather of Paolo; (4) Chief Inspector Asprinio Cabula (Chf. Insp. Cabula) of the Presidential AntiOrganized Crime Task Force (PAOCTF); and (4) Daisy Janope, an employee of Smart Telephone Co.

Dominador corroborated the testimony of Corazon, adding that Paolo was rescued in Nasugbu, Batangas; that previously, when asked by the police, he denied knowing a person named Myrna Mendoza of the Laguna Lake Development Authority (LLDA) since the cellphone used in calling their house was in her name. But when asked if he knows Monico, he told the police that Monico is the husband of his wifes niece who used to work for LLDA. He was also shown a cartographic sketch of a person he failed to identify. Finally, on November 11, 1998, while he was in his office at the Forest Products Research and Development Institute, Rex de Chavez, the eldest son of Monico, and Julie Marquez de Chavez came to see him and handed him a letter, and Rex asked for forgiveness on behalf of his father.

Chf. Insp. Cabula testified as to what happened from August 14, 1998 onwards on how the PAOCTF coordinated with the Los Baos police; meeting the grandparents of Paolo and how the team conducted surveillance activities; on how they tailed Joselito to a small house at 114 Brias St., Brgy. 2, Nasugbu, Batangas where they rescued Paolo at dawn on August 25, 1998; and the arrest of Monico and Joselito.

To rebut and discredit the alleged surveillance conducted by the PAOCTF operatives on August 22, 1998, when Monico and Joselito allegedly went to the house at 114 Brias St., Brgy. 2, Nasugbu, Batangas from Brgy. Putho, Tuntungin, Los Baos, Laguna, the defense presented the testimonies of Priscilla B. Cuevas, Danilo de Mesa Valencia, Sonny Atole and Gloria Penales.

Monico for his part merely testified that after his arrest, he met Paolo about eight times.

Upon cross-examination, however, Chf. Insp. Cabula was caught with glaring inconsistencies in his testimony and was shown not have been in the places where he claimed to be during the alleged surveillance of Joselito and Monico and the eventual rescue of Paolo.

Priscilla B. Cuevas, Records Officer of the Land Transportation and Franchising Regulatory Board (LTFRB) testified on the certification that, as per their records, there are no franchises granted on the route Calamba-Nasugbu as of March 7, 2000.

Defense counsel Atty. Conrado Manicad testified that it was impossible for Chf. Insp. Cabula to tail Joselito from the latters residence to the residence of Monico using 16 men, eight cars and four motorcycles for the width of the alley they have to traverse can only accommodate one person at a time. This was corroborated by Elmer Villanueva, a pre-school teacher of Brgy. Tuntungin, Los Baos, Laguna. The RTC Conviction

Finally, Daisy Janope, employee of Smart Telephone Co., testified that cellphone No. 0918-863-4179 is registered in the name of Myrna T. Mendoza and that in the billing statement for the period covering August 4 to September 3, 1998, it was used several times in calling telephone No. (049)-536-3351 with the calls originating from Batangas. The telephone No. (049)-5363351 is that of the house of Dominador and Corazon Alonzo, grandparents of Paolo.

Danilo de Mesa Valencia attested that he was together with Joselito and Monico in the afternoon of August 22, 1998 when they attended a meeting of the Samahang Pantubig in Purok 3 of Brgy. Putho, Tuntungin, Los Baos, Laguna. Sonny Atole testified playing cards with Monico at the store of Gloria Penales the whole day of August 22, 1998 except the period when Monico went with Joselito and Danilo de Mesa for the meeting. Gloria Penales, storekeeper, corroborated Sonny Atole, that Monico was playing with Sonny Atole in her store practically the whole day of August 22, 1998.

On May 7, 2001, RTC rendered a Decision134[5] convicting Monico, Asuncion and Juanito while acquitting Joselito, the fallo reads:

Version of the Defense The defense also presented Marcelo Villegas, the Barangay Chairman of Barangay III, Nasugbu, Batangas, who testified being awakened at around 2 a.m. on August 25, 1998 by operatives of the PAOCTF to witness the rescue operation. The officers who talked to him were one Capt. Dandan and one Col. Aquino. He attested that Chf. Insp. Cabula was not one of the officers who conducted the rescue operation and that during the ocular inspection conducted by the trial court on May 17, 1999, he was about two meters from Chf. Insp. Cabula but the latter could not identify him as the barangay chairman.

For its part, the defense presented the testimonies of 13 individuals, i.e., the four accused and that of Priscilla B. Cuevas, Danilo de Mesa Valencia, Sonny Atole, Marcelo Villegas, Gloria Penales, Benedicto Alborida, Apolinario Mamiit, Elmer Villanueva and Atty. Conrado Manicad, the counsel of Monico and Joselito.

ACCORDINGLY, this Court finds accused MONICO DECHAVEZ y PERLAS, JUANITO MION y RODRIGUEZ and ASUNCION MERCADO y MARCIANO GUILTY beyond reasonable doubt of the crime of Kidnapping as defined and penalized under Article 267 of the Revised Penal Code, as amended, and hereby sentences each one of them to suffer the penalty of DEATH. For failure of the prosecution to prove the guilt of the accused JOSELITO LANIP y GENEBRALDO beyond reasonable doubt, said accused is hereby ordered ACQUITTED. The Provincial Jail Warden of the Province of Laguna is hereby directed to release from detention accused Joselito Lanip y Genebraldo unless detained for some other valid cause.

Both Asuncion and Juanito, corroborating each other, attested that they have been misled and intimidated into committing the crime by Monico, who they similarly pointed to as the mastermind of the kidnapping; and that they were merely prevailed upon and compelled to follow Monico under pain of death.

Joselito testified on how he was arrested at around 9 p.m. of August 24, 1998. Benedicto Alborida averred that in the evening of August 24, 1998, he was with Joselito in a birthday celebration. Apolinario Mamiit corroborated Joselito and Benedicto Alborida as it was his childs birthday celebration in the evening of August 24, 1998 that the latter attended.

With costs against the convicted accused. SO ORDERED.135[6]

v. Mateo,138[9] we transferred this case to the CA on March 7, 2006,139[10] for appropriate action and disposition.

that the demand for ransom was duly proven. Besides, as to Asuncion and Juanito, it ratiocinated that aside from their bare testimonies no other evidence was presented to prove or corroborate them, more so when their bare assertions ran counter to the categorical and credible testimony of Paolo.

Affirmance of Conviction by the CA

The RTC noted that Monico merely used alibi for August 22, 1998 but could not and did not account for his whereabouts on August 14, 1998 when the kidnapping was committed. Besides, he did not explain his virtual confession, in the morning of August 25, 1998, to his auntie-in-law, Corazon.

As stated at the threshold hereof, the CA, in the herein assailed September 15, 2005 Decision,140[11] affirmed the judgment of conviction of the trial court but lowered the penalty to reclusion perpetua pursuant to RA 9346, thus:

Aggrieved, Juanito and Asuncion filed their respective Notices of Appeal142[13] while Monico filed a Motion for Extension of Time143[14] of 30 days to file a motion for reconsideration. The CA, per a February 6, 2009 Resolution144[15] gave due course to the appeals filed by Juanito and Asuncion while it denied Monicos motion.

On the theory of exempting or justifying circumstance raised by Juanito and Asuncion, i.e., they acted under the impulse of an uncontrollable fear of an equal or greater injury or they caused damage to another in order to avoid an evil or injury, the RTC viewed it with incredulity considering the many inconsistencies in their respective testimonies. However, the fiasco of the testimony of Chf. Insp. Cabula, destroyed the case against Joselito, which the RTC acquitted.

WHEREFORE, in view of the foregoing premises, the instant appeal is hereby DENIED and, consequently, DISMISSED. The assailed decision dated May 7, 2001, is hereby AFFIRMED with MODIFICATION. Monico De Chavez y Perlas, Juanito Mion y Rodriguez and Asuncion Mercado y Marciano shall suffer the penalty of Reclusion Perpetua, taking into consideration the enactment of Republic Act 9346, instead of death. SO ORDERED.141[12]

The Issues

Aggrieved, Juanito and Asuncion are now with this Court via the present appeal, substantially raising the same assignment of errors raised in G.R. No. 150387, which were duly considered and passed upon by the appellate court.

Pursuant to the above RTC decision of conviction, Monico, Asuncion and Juanito, who were in custody in Laguna, were committed for confinement to the New Bilibid Prison in Muntinlupa City and to the Correctional Institute for Women in Mandaluyong.136[7]

In his appellants brief,145[16] filed in G.R. No. 150387, Juanito raises the following assignment of errors:

The case was elevated to this court for automatic review, docketed as G.R. No. 150387. The three accused filed their respective briefs.137[8] However, in conformity with People

The CA found that all the elements of kidnapping under Art. 267 of RPC were duly proven beyond reasonable doubt. The categorical testimony of Paolo was the lynchpin in the prosecutions case, and his positive identification of Monico, Asuncion and Juanito damning to the defense. Likewise, it ruled

1)

The trial court erred in finding insofar as accused-appellant Juanito Mion that the alleged Kidnapping was made for the purpose of extorting ransom

2)

The trial court erred in finding that accused-appellant Juanito Mion conspired with accused Monico de Chavez in kidnapping Paolo Earvin Alonzo

did so until she was arrested by the military officers concerned while she was with appellant Mion and the victim on August 25, 1998 and, therefore, her acts thereon were justified. 3) The Court a quo erred when it did not acquit appellant Asuncion Mercado in this case.

brief confining its position and arguments in the earlier filed Brief for the Appellee.149[20]

The Courts Ruling

3)

The trial court erred in not finding that accused-appellant Juanito Mion is entitled to the exempting circumstances of compulsion of an uncontrollable fear of an equal or greater injury (Article 12, paragraph 6 of the Revised Penal Code)

The appeal is unmeritorious.

4)

The trial court erred in not finding that accused-appellant Juanito Mion was entitled to the justifying circumstance of state of necessity (Article 11, paragraph 4, Revised Penal Code).

In Juanito and Asuncions supplemental brief,147[18] they raise the additional assignment of error that: the CA gravely erred in finding that accused-appellants Mion and Mercado conspired with de Chavez in the commission of the crime charged.148[19]

A close scrutiny of the records of the case and the clear and unanimous findings of the courts a quo compel this Court to affirm accused-appellants conviction.

First Core Issue: Conspiracy Proven The undisputed facts show that Paolo was indeed kidnapped and held for ransom. The trial court and the appellate court a quo unanimously found beyond reasonable doubt that Monico, Asuncion and Juanito committed the crime of kidnapping for ransom. In fact, in the instant appeal, Asuncion and Juanito do not dispute the commission of the crime. What they are however raising is the application of an exempting or justifying circumstance in their favor.

While in her appellants brief,146[17] likewise filed in G.R. No. 150387, Asuncion raises the following assignment of errors: Thus, the assignment of errors raised by appellants Juanito and Asuncion can be summarized into two issues: first, whether they conspired with Monico in the perpetration of the crime; and, second, whether an exempting or justifying circumstance is present and applicable in their favor.

Accused-appellants strongly argue that they never conspired with Monico in the kidnapping of Paolo. They maintain that even if present during the kidnapping incident, they were simply compelled by Monico, under threat of physical harm to follow the latters orders. They argue that fact that their testimonies were uncorroborated should not be taken against them for the case of the prosecution must stand on the weight of its own evidence and not in the weakness of their defense. Besides, they contend that the testimony of Paolo does not run counter to the exempting or justifying circumstance in their favor as Paolos testimony merely affirmed their presence in the commission of the crime.

1)

The Court a quo erred when it did not consider that appellant Mercado did not conspire with the other appellants in this case. The Court a quo erred when it did not consider that accused Mercado could not escape from the other appellants during the incident in question because she would be definitely killed if she

We are not persuaded. The People of the Philippines represented by the Office of the Solicitor General (OSG) chose not to file any supplemental

2)

Prefatorily, we reiterate the rule that the findings of the trial court on the credibility of witnesses are entitled to great respect, because trial courts have the advantage of observing the demeanor of the witnesses as they testify. This is more true if such findings were affirmed by the appellate court. When the trial courts findings have been affirmed by the appellate court, said findings are generally binding upon this Court.150[21] Both the trial court and the appellate court found the testimonies of the victim, Paolo, his grandparents, Dominador and Corazon, to be categorical and credible. The defense did not sufficiently rebut their testimonies.

In the instant appeal, Juanito and Asuncion do not question the fact of the commission of the crime of kidnapping for ransom as they merely raise the issue of lack of conspiracy and an exempting or justifying circumstance in their favor to exonerate them from criminal liability.

existence of a common design towards the accomplishment of the same unlawful purpose, conspiracy is evident, and all the perpetrators will be liable as principals.158[29]

It must be recalled that Paolo testified on the circumstances of his kidnapping. He was lured into going with Asuncion by the ruse that his grandfather, Dominador, met an accident and wanted to talk to him. In fact, Paolos science teacher, Ms. Tess Izon, allowed him to talk to Asuncion. When he boarded the waiting vehicle, he saw three other men, two of whom he identified as Monico and Juanito.155[26]

Second Core Issue: Neither an Exempting or Justifying Circumstance Proven

There is conspiracy when two or more persons come to an agreement concerning the commission of a crime and decide to commit it.151[22] Conspiracy requires the same degree of proof required to establish the crimeproof beyond reasonable doubt;152[23] as mere presence at the scene of the crime at the time of its commission without proof of cooperation or agreement to cooperate is not enough to constitute one a party to a conspiracy.153[24]

Thus, it is established that upon his kidnapping, Monico, Juanito and Asuncion were there. When Paolos hands and feet were tied by Monico, Juanito was the one who blindfolded him.156[27]

Granting for the sake of argument that there was no conspiracy, still appellants are guilty of the crime charged. For the presence of an exempting or justifying circumstance applicable in their favor was not adequately proven. When they actively participated in the kidnapping and in holding Paolo inside the house in Nasugbu, Batangas for 11 days, Juanito and Asuncion are liable as principals for the crime of kidnapping for ransom.

In the case at bar, the ascertained facts of the kidnapping and the proven demand for ransom of PhP 4M established beyond reasonable doubt the commission of the crime of kidnapping for ransom. Monicos guilt has been proven beyond reasonable doubt. As co-accused and co-conspirators of Monico, Asuncion and Juanito are equally guilty, for in a conspiracy, every act of one of the conspirators in furtherance of a common design or purpose of such a conspiracy is the act of all.154[25]

Evidently, Juanito and Asuncion acted in concert with Monico on a common plan to kidnap Paolo and hold him for ransom. Asuncion lured Paolo to accompany her. Juanito blindfolded Paolo when they were transporting him to Nasugbu, Batangas. Moreover, for 11 days, Juanito and Asuncion guarded Paolo inside the small house at 114 Brias St., Brgy. 2, Nasugbu, Batangas. Foregoing facts taken together, without a doubt, shows conspiracy between Monico, Juanito and Asuncion in committing kidnapping for ransom.

In full agreement with the courts a quo, we likewise fail to appreciate any exempting or justifying circumstance in appellants favor anchored as it were on their mere testimonies. This Court will not disturb the judgment of the trial court in assessing the credibility of witnesses, unless there appears in the records some facts or circumstances of weight and influence which have been overlooked or the significance of which has been misinterpreted by the trial court.159[30] In the instant case, we find nothing which have been overlooked by the courts a quo which, if considered, would alter the outcome in so far as appellants are concerned.

Proof of the agreement need not rest on direct evidence, as the same may be inferred from the conduct of the parties indicating a common understanding among them with respect to the commission of the offense.157[28] Where the acts of the accused collectively and individually demonstrate the

Their testimonies and protestations, without more, that they were only compelled by threat of bodily harm by Monico is not proof of an exempting or justifying circumstance. Firstly, no other corroborative evidence was shown to prove the existence of either circumstance. While it is true that the prosecution evidence must stand on its weight and not in the

weakness of appellants defense, yet, as discussed above, the prosecution has proven beyond reasonable doubt on the active participation of Asuncion and Juanito in the kidnapping of Paolo. The testimony of Paolo indubitably points to the fact that Asuncion and Juanito, aside from actively participating in his kidnapping, willfully and voluntarily guarded him for 11 straight days. They may not have been the ones who threatened Paolo or dictated to him what to say to his grandparents. Yet they were the ones who were keeping him in custody.

YNARES-SANTIAGO, J.: Felipe Musa Jr., Allan Reolo, Randy Lleno and Angelo (Gil) Mabini, together with Silverio Manjares Jr. (now deceased) were charged with Murder before the Regional Trial Court of Sorsogon, Sorsogon, Branch 52, which was docketed as Criminal Case No. 2540. The Information filed against them reads as follows: That on or about the 17th day of July 1988, at Barangay Putiao, municipality of Pilar, province of Sorsogon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with intent to kill, armed with stones, and with treachery and evident premeditation, and taking advantage of superior strength, did then and there, willfully, unlawfully and feloniously attack, assault and throw stones at one Zaldy Marifosque, thereby hitting the latter on the different parts of his body which directly caused his death, to the damage and prejudice of the legal heirs of said Zaldy Marifosque. CONTRARY TO LAW.160[1] All the accused pleaded not guilty upon arraignment.161[2] Thereafter, the case was tried on the merits. At 9:00 p.m. of July 17, 1998, brothers Javier Bebot Marifosque and Zaldy Marifosque were inside their house at Putiao, Pilar, Sorsogon. They were getting ready for bed when suddenly stones fell on their roof. They looked out the window and saw Felipe Musa Jr., Allan Reolo, Angelo Mabini, Randy Lleno and Silverio Manjares, Jr. standing in the middle of the road and pelting stones at their house.162[3] Bebot and Zaldy ran towards the house of Musas father, Felipe Sr., seventeen meters away, to report the stoning incident to him. The five accused followed them and stood in front of the Musa house. Felipe Jr. attacked Bebot and hit him with a piece of wood above the left ear.163[4] Felipe Sr. grabbed his son and beat him up. He ordered his other son, Ricardo, to get a rope because they will tie up Felipe Jr. Upon hearing this, the latter scampered away. Felipe Sr. re-assured

Bebot and Zaldy that he will take full responsibility for his sons acts.164[5] On their way home, Bebot walked five meters ahead of Zaldy because of fear that they might be waylaid. After they passed a jeepney parked on the other side of the road, the five accused suddenly appeared. Musa, Lleno and Manjares hurled stones at Zaldy, who was hit on the face and fell to the ground. Mabini and Reolo stood behind the other three accused holding stones.165[6] Bebot ran to their house to get a weapon to use against the assailants.166[7] In the meantime, Barangay Tanod Ireneo Mendez was asleep in his house nearby when he was awakened by the sound of stones hitting the road and shouts for help saying, Dont kill me.i[8] He went out of his house and saw Zaldy sprawled on the road and five individuals standing around him. When he shouted, Hey, what is that,167[9] the five men ran away.168[10] He was able to get a good look at their faces since the area was lit with a fluorescent lamp. He approached Zaldy and recognized him to be the brother of Bebot. Bebot arrived carrying a lead pipe, but the five assailants were gone. Together, Mendez and Bebot brought Zaldy to the Albay Provincial Hospital. Dr. Cesar Ong Chua, the resident physician of Department of Surgery at the Albay Provincial Hospital, performed a craniectomy or burr holing on the skull of Zaldy to evacuate hematoma or the blood clot surrounding the brain.169[11] Dr. Chua found that Zaldy suffered massive internal bleeding caused by strong force applied directly to his head.170[12] However, Zaldy died the next day after the operation.

Secondly, appellants have not shown that the house where they kept Paolo was well guarded or that an armed person was posted therein aside from their mere testimony that the people outside the house with Monico. This belies their theory of compulsion by an exempting circumstance either of irresistible force or uncontrollable fear under Art. 12, par. 5 and 6 of the RPC sufficient to exculpate them. If they indeed labored under such compulsion, there was nothing keeping them from running to the authorities or escaping with Paolo; but they did not. A review of the records would indicate that neither Monico nor Joselito was constantly guarding the house. As attested to by defense witnesses, Monico and Joselito were in Brgy. Tuntungin, Los Baos, Laguna on August 22, 1998 during the period of Paolos custody. In fact, when arrested separately, Monico and Joselito were in Los Baos, Laguna and not in the house in Nasugbu, Batangas. Moreover, during the PAOCTF rescue operation at dawn of August 25, 1998, only Juanito and Asuncion were guarding Paolo in the house in Nasugbu, Batangas. The lack of the alleged compulsion is thus clear, and that Asuncion and Juanito indeed actively participated in the commission of the crime charged. WHEREFORE, the appeal of Juanito Mion y Rodriguez and Asuncion Mercado y Marciano is hereby DENIED, and the assailed November 27, 2008 of the CA in CA-G.R. CR-H.C. No. 02212 is AFFIRMED IN TOTO. Costs against appellants.

SO ORDERED. PEOPLE OF THE PHILIPPINES, appellee, vs. FELIPE MUSA, JR., SILVERIO MANJARES, JR. (deceased), ALLAN REOLO, RANDY LLENO and ANGELO MABINI, accused. FELIPE MUSA, JR., ALLAN REOLO, RANDY LLENO and ANGELO MABINI, appellants. DECISION

The defense claims that in the evening of July 17, 1998, the five accused were drinking in front of Alcazars Store in Putiao, Pilar, Sorsogon. Later, they transferred to Realubits Store. Musa left the group to relieve himself. Zaldy and Bebot suddenly attacked him with lead pipe for allegedly throwing stones at their house.171[13] Musa tried to parry the blows and hit Zaldy with a stone. He then ran toward his house.172[14] The other accused allegedly were unable to help Musa because of shock.173[15] While the case was pending trial, accused Silverio Manjares, Jr. died. On April 17, 1998, the trial court rendered a judgment of conviction as follows: WHEREFORE, in view of the foregoing consideration, the prosecution having proved the guilt of the accused by evidence beyond reasonable doubt of the crime of Murder defined and penalized under Article 248 of the Revised Penal Code, qualified by the circumstance of treachery, the court hereby sentences Felipe Musa Jr., Allan Reolo, and Randy Lleno to suffer an imprisonment of Reclusion Perpetua and to pay jointly and severally the heirs of the deceased the amount of P50,000.00 as civil indemnity; P100,000.00 as indemnity for the loss of earning capacity of the victim; P20,000.00 for moral damages without subsidiary imprisonment in case of insolvency and to pay the costs. Accordingly, the bond posted by accused Felipe Musa Jr., Allan Reolo and Randy Lleno are hereby cancelled. Accused Angelo Mabini at the time of the commission of the crime is only 17 years and 3 months old, applying the law on youthful offender, he shall be credited a privileged mitigating circumstance of minority and by applying the Indeterminate Sentence Law, the accused is hereby sentenced to suffer an indeterminate penalty of 4 years, 2 months and 1 day as minimum, to 8 years, and 1 day of Prision Mayor as maximum. It appearing that accused Silverio Manjares Jr. is already dead, as evidenced by a death certificate filed before this court, the case against him is hereby dismissed.

SO ORDERED.174[16] Hence this appeal, based on the following assignment of errors: I THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF CONSPIRACY. II THE COURT ERRED IN FINDING THAT THERE WAS TREACHERY IN THE KILLING OF THE VICTIM. III THE COURT ERRED IN CONVICTING THE ACCUSED BEYOND REASONABLE DOUBT. The appeal lacks merit. Appellants contend that the killing was not attended by the qualifying circumstance of treachery because the victim was forewarned of an attack against him as the assault was preceded by the stoning of his house and the challenge made by Musa to the Marifosque brothers. We disagree. Treachery may still be appreciated even when the victim was warned of the danger to his person as long as the execution of the attack made it impossible for the victim to defend himself or to retaliate.175[17] The essence of treachery is the swift and unexpected attack by an aggressor or an unarmed and unsuspecting victim who does not give any slightest provocation, depriving the latter of any real chance to defend himself.176[18] The records show that appellants hid themselves and lay in wait for Bebot to pass by before pelting Zaldy with stones. Thus, there was a deliberate and unexpected attack on the unarmed victim who was in a helpless position to defend himself or retaliate from the five assailants, who continuously hurled stones at him. To

reiterate, what is decisive is that the execution of the attack made it impossible for the victim to defend himself. We likewise disagree with the appellants argument that there was no conspiracy because there was no prior agreement to commit the crime, that the prosecutions evidence only proved their presence at the scene which is insufficient, and that only three of the assailants stoned the victim while the two others ran away. It is well-settled that conspiracy exists when two or more persons come to an agreement concerning the commission of a crime and decide to commit it.177[19] Proof of the agreement need not rest on direct evidence, as the same may be inferred from the conduct of the parties indicating a common understanding among them with respect to the commission of the offense.178[20] It is not necessary to show that two or more persons met together and entered into an explicit agreement setting out the details of an unlawful scheme or the details by which an illegal objective is to be carried out. The rule is that conviction is proper upon proof that the accused acted in concert, each of them doing his part to fulfill the common design to kill the victim. In such case, the act of one becomes the act of all, and each of the accused will thereby be deemed equally guilty of the crime committed.179[21] In the case at bar, Bebot and the Tanod, Mendez, both saw the five appellants at the scene of the crime. Although Bebot testified that he only saw Musa, Manjares and Lleno actually hurl stones at the victim, he declared that Mabini and Reolo were standing behind them and they were holding stones. On the other hand, Mendez averred that when he shouted, all of them immediately fled. Their physical presence at the scene of the crime, their being armed with stones and their simultaneous flight all manifest a common design and a unity of purpose and action leading to the indubitable conclusion that they acted in conspiracy. Likewise, the trial court correctly rejected appellant Musas theory of self-defense. The medical certificate shows that Musa suffered only abrasions which could not have been caused by the lead pipes allegedly used by the Marifosque brothers in assaulting him. Where an accused invokes self-defense to escape criminal liability, it becomes incumbent upon him to prove by clear and convincing evidence the attendance of such justifying

circumstance; otherwise, having admitted the killing, conviction is inescapable.180[22] It must be noted that appellants conviction was based on the positive identification made by the prosecution witnesses. Bebot clearly and categorically identified appellants, whom he recognized as residents of the same locality. His testimony was corroborated by Mendez, who saw the faces of the five appellants near the victim after the assault. As there was no indication that the prosecution witnesses were moved by any improper motive, the presumption is that they were not so moved and their testimonies must be given full faith and credence.181[23] Moreover, it is basic that this Court will not interfere with the trial courts assessment of the credibility of witnesses, absent any indication that some material fact was overlooked or neglected.182[24] Clearly, we find no compelling reason to depart from the factual findings of the trial court that appellants, in conspiracy with one another, committed the crime of Murder qualified by treachery. At the time of the commission of the crime in 1988, the penalty prescribed for Murder under Article 248 of the Revised Penal Code was reclusion temporal in its maximum period to death.183[25] There being no aggravating or mitigating circumstance attending the commission of the crime, the penalty shall be imposed in its medium period reclusion perpetua. In view of the privileged mitigating circumstance of minority of appellant Angelo Mabini, the penalty next lower in degree shall be imposed in its proper period, pursuant to Article 68, paragraph (2) of the Revised Penal Code, which is prision mayor maximum to reclusion temporal medium. Since no modifying circumstance was appreciated, the medium period shall be imposed, i.e., reclusion temporal minimum, or twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Applying the Indeterminate Sentence Law, appellant Mabini shall be entitled to a minimum term to be taken from the penalty next lower in degree, which is prision correccional maximum to prision mayor medium, ranging from four (4) years, two (2) months and

one (1) day to ten (10) years. Hence, the trial court erred in imposing the maximum term of the indeterminate penalty. Consistent with our ruling in People v. Paredes,184[26] appellant Angelo Mabini is hereby sentenced to suffer the indeterminate prison term of four (4) years, ten (10) months and twenty (20) days of prision correccional, as minimum, to twelve (12) years, four (4) months and ten (10) days of reclusion temporal, as maximum. The trial courts award of civil indemnity in the amount of P50,000.00 is affirmed. Considering the attendance of the qualifying circumstance of treachery, the amount of P25,000.00 is further awarded to the heirs of the victim as exemplary damages. In People v Catubig,185[27] we ruled that insofar as the civil aspect of the crime is concerned, exemplary damages in the amount of P25,000.00 is recoverable if there is present an aggravating circumstance, whether qualifying or ordinary, in the commission of the crime.186[28] As regards the award of moral damages, the amount of P20,000.00 should be increased to P50,000.00, in line with prevailing jurisprudence.187[29] Under Article 2206 of the Civil Code, appellants shall be liable for the loss of the earning capacity of the deceased. Indemnification for loss of earning capacity partakes of the nature of actual damages which must be duly proven.188[30] As shown by the victims service record,189[31] he was holding the position of Supervising Civil Engineering Draftsman at the Department of Public Works and Highway (Region V, Legazpi City) when he died at the age of 30 on July 18, 1988.190[32] His salary then was P58.21 per day, hence, his gross annual income would be P20,955.60. Using the American Expectancy Table of Mortality, the award of damages representing loss of earning capacity should be P349,225.07, computed as follows:

Net = Life expectancy x Gross Annual Income Living expenses Earning [2/3 (80 age at death)] (GAI) 50% of GAI) Capacity = 50% = = = = 33.33 33.33 33.33 2/3 [(80-30)] x P20,955.60 -

x P20,955.60 - 50% x [P20, 955.60 - 10,477.80] x P10,477.80

P349,225.07

WHEREFORE, in view of all the foregoing, the decision of the Regional Trial Court of Sorsogon, Sorsogon, Branch 52, in Criminal Case No. 2540, convicting appellants Felipe Musa Jr., Allan Reolo, Randy Lleno and Angelo Mabini of the crime of Murder is AFFIRMED with MODIFICATIONS. Appellants Felipe Musa Jr., Allan Reolo, Randy Lleno are sentenced to suffer the penalty of reclusion perpetua, while appellant Angelo Mabini is sentenced to suffer the indeterminate penalty of four (4) years, ten (10) months and twenty (20) days of prision correccional, as minimum, to twelve (12) years, four (4) months and ten (10) days of reclusion temporal, as maximum. All the appellants are ordered to pay, jointly and severally, the heirs of the deceased, Zaldy Marifosque, the sums of P50,000.00 as civil indemnity, P50,000.00 as moral damages, P25,000.00 as exemplary damages and P349,225.07 as actual damages for loss of earning capacity. SO ORDERED.

x----------------------------------------------------------------------------------------x PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, - versus JOSE N. MEDIADO,

DECISION Jose confessed to killing Jimmy but claimed that he did so only to defend himself and his father (Rodolfo). Jose related that he had passed by the barangay hall on his way to work, and had observed Jimmy punch Rodolfo and hit him with a stone; that Jimmy then picked up a stone and threw it at him (Jose); that to fend off the attack, he (Jose) unsheathed his bolo and hacked Jimmy until he fell to the ground; and that he remained in the place for ten minutes and later yielded to Clorado who accompanied him to the police station where he surrendered to Police Officer Ramon Maumay.194[4] The Revised Penal Code delineates the standards for self-defense and defense of a relative in Article 11, viz:

BERSAMIN, J:

Article 11. Justifying circumstances. The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur: First. Unlawful aggression;

An accused who asserts self-defense admits his infliction of the fatal blows and bears the burden of satisfactorily establishing all the elements of self-defense. Otherwise, his conviction for the felony of murder or homicide will be affirmed.

In this appeal, Jose N. Mediado (Jose) appeals the decision of the Court of Appeals (CA) finding him guilty beyond reasonable doubt of the crime of murder for the killing of Jimmy Llorin (Jimmy),191[1] thereby affirming the decision of the Regional Trial Court, Branch 35, in Iriga City (RTC) convicting him of that felony and imposing on him the penalty of reclusion perpetua and the payment of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P24,000.00 as actual damages.192[2] Antecedents

As stated, both the RTC and the CA rejected Joses claim of self-defense and defense of a relative, and found that treachery was employed by Jose when he attacked Jimmy from behind.

Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself. 2. Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or his relatives by affinity in the same degrees and those by consanguinity within the fourth civil degree, provided that the first and second requisites prescribed in the next preceding circumstance are present, and the further requisite, in case the provocation was given by the person attacked, that the one making defense had no part therein. xxx

Hence, this appeal.

We affirm the CA decision. At around 9:00 a.m. on March 20, 1997, Jimmy was having a conversation with Rodolfo Mediado (Rodolfo) at the dancing hall located in Pulang Daga, Balatan, Camarines Sur. He was around 35 meters away from Lilia, his wife, who was at a meeting of the Mr. and Mrs. Club in the barangay hall. At that moment, Lilia witnessed Jose emerge from behind Jimmy and hack Jimmy twice on the head with a bolo. She next saw Jose move to Jimmys left side and continue hacking him although he had already fallen to the ground. Jose fled, but Juan Clorado (Clorado), a former barangay kagawad, ran after him. Upon catching up, Clorado seized and took the bolo from Jose, and brought Jose to the PNP station in Balatan, Camarines Sur. Lilia believed that Jose fatally assaulted Jimmy for fear that he would report to the police authorities that Jose had attacked one Vicente Paraal during the town fiesta two days earlier.193[3]

We reiterate that findings of the CA upon factual matters are conclusive and ought not to be disturbed unless they are shown to be contrary to the evidence on record.195[5] Here, Jose has not demonstrated to our satisfaction that the CA committed any reversible error in making its findings of fact against Jose.

Specifically, the RTC and the CA correctly rejected Joses claim of self-defense and defense of a relative because he did not substantiate it with clear and convincing proof.

Indeed, upon invoking the justifying circumstance of self-defense, Jose assumed the burden of proving the justification of his act with clear and convincing evidence. This is because his having admitted the killing required him to rely on the strength of his own evidence, not on the weakness of the Prosecutions evidence, which, even if it were weak, could not be disbelieved in view of his admission.196[6]

It is also notable that unlawful aggression is the condition sine qua non for the justifying circumstances of selfdefense and defense of a relative. There can be no self-defense unless the victim committed unlawful aggression against the person who resorted to self-defense.197[7] As the CA pointed out, however, Jose did not support his claim that Jimmy had committed aggression by punching Rodolfo and by throwing stones at him and his father.198[8] In fact, he and his father were not able to identify any weapon used by Jimmy aside from the stone that he supposedly picked up from the ground. Even that testimony was contrary, for Jose testified that he had unsheathed his bolo and hacked Jimmy after dodging the stone thrown at him. Plainly, he did not establish with clear and convincing proof that Jimmy had assaulted him or his father as to pose to either of them an imminent threat of great harm before he mounted his own attack on Jimmy. Moreover, the post-mortem examination disclosed that Jimmy had sustained a total of seven wounds: two incised wounds and five hack wounds.199[9] Three of the hack wounds were inflicted on Jimmys neck, one of which fatally extended to and cut the trachea, esophagus, and the carotid and jugular vessels that supplied blood to the heart and brain of Jimmy.200[10] Dr. Moll Lee, the medico-legal expert, opined at the trial that the injuries were possibly sustained by Jimmy from the assailant who was behind him and while he was already down.201[11] This opinion was consistent with Lilias testimony to the effect that Jose had attacked Jimmy from behind as well as when Jimmy was already lying on the ground.202[12] The nature, number, and gravity of Jimmys wounds spoke not of defense on the part of Jose but of a criminal intent to kill Jimmy.203[13] They indicated beyond doubt the treacherous manner of the assault, that is, that Jose thereby ensured that the killing would be

without risk and would deny to Jimmy any opportunity to defend himself.204[14]

modification that Jose N. Mediado is ordered to indemnify the heirs of Jimmy Llorin in the amounts of P75,000.00 as civil indemnity; P75,000.00 as moral damages; P30,000.00 as exemplary damages; and P25,000.00 as temperate damages.

Lastly, the testimonies of Jose and Rodolfo were infected with inconsistencies. For one, Rodolfo did not mention that his son had carried a bolo during the incident; instead, Rodolfo recalled that Jose and Jimmy had engaged in a fistfight. 205[15] Also, Rodolfos claim that he chose to return home after being badly hurt from Jimmys attack was unnatural, for, if that were true, he was thereby unnaturally leaving his son to engage the attacker alone.

SO ORDERED.

DECISION ROMERO, J.:

We modify the award of damages to make their amounts consistent with the law and jurisprudence relating to an accused adjudged guilty of a crime covered by Republic Act No. 7659,206[16] regardless of aggravating or mitigating circumstances.207[17] The correct amounts are P75,000.00 as civil indemnity; P75,000.00 as moral damages; and P30,000.00 as exemplary damages, all to be granted without proof or pleading. In addition, the Court notes that actual damages awarded to the heirs was only P24,000.00. In furtherance of justice and consistent with our ruling in People v. Villanueva208[18] that when actual damages proven by receipts is lower than P25,000.00, the award of P25,000.00 as temperate damages is justified in lieu of actual damages of a lesser amount.209[19]

Accused-appellant Noel Aguilar y Amistuso was charged with murder in an Information that reads: That on or about the 2nd day of December, 1994, in the Municipality of Malabon, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, and with treachery and evident premeditation, while armed with bladed weapon did, then and there, willfully, unlawfully and feloniously stab one HELEN A. REVILLA hitting the latter on different parts of her body which directly caused her death. In another Information, accused-appellant was charged with another count of murder in this wise: That on or about the 2nd day of December, 1994, in the Municipality of Malabon, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and with treachery, and evident premeditation, while armed with bladed weapons did, then and there, willfully, unlawfully and feloniously stab one ANGELINA PASCUA Y RANA hitting the latter on different parts of her body, which directly caused her death. Upon arraignment, accused-appellant pleaded not guilty. The trial court found the following facts: At around 3:00 oclock to 6:00 oclock in the morning of December 2, 1994, accused-appellant and two companions were having a drinking spree at the Virgo Pubhouse located along MacArthur Highway, Potrero, Malabon, Metro Manila. Two female receptionists, namely Helen Revilla and Angelaidaii[1] Pascua, attended to and entertained the three.

WHEREFORE, the Court affirms the Decision promulgated on May 19, 2005 in C.A.-G.R. CR.-H.C. No. 00589 entitled People of the Philippines v. Jose Mediado, subject to the

At around 6:00 oclock in the morning, accused-appellant paid the bill amounting to P587.00. Helen then told Dagalla, a waiter, that she would be leaving the place to sleep. A few moments later, Roberto Laxa, a taxi driver waiting for passengers in front of the nearby Victoria Court, saw Helen, Angelaida and a male companion proceeding to the then Lampara Hotel (now Diwata Hotel) which is 15 to 20 meters away from Virgo Pubhouse. Shortly thereafter, he saw Angelaida come out of the hotel and board a jeep going to Valenzuela only to return thereto after a short while. Wanting to retrieve his Ray-ban glasses from Angelaida which he entrusted to her as security for a loan, Laxa waited for her and Helen to come out of the hotel. While waiting, Laxa went inside the Lampara Hotel and talked to some hotel employees at the counter, particularly to roomboys Inigo Malapitan, Jun Eusebio and Rodolfo Barreto, who guided Helen, Angelaida and their male companion to their room. Laxa learned that the trio checked-in at room 239 located at the lower portion of the hotel along a sloping parcel of land. A short while later, the womens male companion came out of the room and hurried past the counter towards MacArthur Highway. He appeared to be pale making Laxa wonder why Helen and Angelaida were left behind. Roomboy Inigo Malapitan went to room 239 to start cleaning the same only to immediately come out of it shouting about the bloodied bodies of Helen and Angelaida lying on the floor. Barreto tried to chase the man but he was no longer to be found. In the course of their investigation, Malabon policemen found a wallet containing the identification card of one Noel Aguilar, among others. The photograph appearing in said ID card was shown to Laxa and the hotel employees, particularly roomboy Barreto, who identified the man depicted in the photograph as the one who checked-in with Helen and Angelaida and as the man who most probably killed the two. The police later arrested accused-appellant Aguilar in Bahay Toro, Quezon City. Roomboy Barreto confirmed the testimony of Laxa and the two of them identified accused-appellant Noel Aguilar in court as the male companion of Helen and Angelaida in Room 239. Helen and Angelaida, per autopsy examination conducted by a Medico Legal Officer of the NBI, died of multiple stab wounds they sustained on different parts of their bodies. Helen, who was found to be six months pregnant, was stabbed fourteen times on the front, left side and on her back.iii[2] Angelaida was stabbed twenty nine times on the front and back of her body.iv[3]

The parents of Helen and Angelaida spent P35,000.00 and P67,850.00, respectively, in connection with their death and burial. They also sought moral damages for the pain and sorrow they suffered in amounts they were leaving to the court to determine. Accused-appellant had a different version of the incident. He alleged that he and his two companions started their drinking session in Pasay City but afterwards went to Malabon where they could get women with whom they can have sex. He confirmed that they drank at the Virgo Pubhouse from 3:00 oclock to 6:00 oclock in the morning. Further, he claimed that being too drunk, receptionists Helen and Angelaida volunteered to bring him to their sleeping quarters. It turned out that he was taken to a motel where he found himself lying on a bed. He was allegedly awakened by the entry of someone into the room and by what he felt was a sharp pointed object pressed against the right side of his body, near the armpit. Afterwards, someone went on top of him while another person tried to get his wallet containing P4,000.00 in cash. Fearful for his life, accused-appellant fought back and was able to wrest possession of the sharp pointed instrument which he swung to his left and to his right, forward, downward and upward, in the course of which, he must have hit the persons who tried to kill and divest him of his wallet. Still dazed, Aguilar turned on the lights and got scared with what he saw. As it turned out, those persons who attempted to kill and rob him of his money were Helen and Angelaida and who, resultantly, sustained stab wounds at the back and other portions of their bodies because of his struggle. Thus, accused-appellant hurriedly left the place and it was at this point that he noted that he sustained a wound on his left hand, between the index finger and the thumb. The trial court was not persuaded by accused-appellants version and instead found him guilty as charged. It disposed of said case as follows: WHEREFORE premises considered, judgment is hereby rendered finding accused Noel Aguilar y Amistuso guilty beyond reasonable doubt of two (2) counts of murder which resulted in the deaths of Helen Revilla and Angelaida Pascua. He is hereby accordingly sentenced to two (2) prison terms of reclusion perpetua, together with all the accessory penalties thereof. Accused Aguilar is also ordered to pay: 1) To the heirs of victim Helen Revilla, the sums of (a) P50,000.00 for the loss of the victims life; (b) P35,000.00 for

actual expenses incurred in connection with the death and burial of the victim, and (c) P50,000.00 by way of moral damages for the anguish and sorrow they suffered by reason of the victims death; 2) To the heirs of Angelaida Pascua, the sums of (a) P50,000.00 for the loss of the victims life; (b) P67,850.00 for expenses incurred in connection with the death and burial of the victim, and (3) P50,000.00 by way of moral damages for the anguish and sorrow they suffered by reason of the victims death. Costs against the accused in both cases.v[4] Accused-appellant now assails the trial courts Decision with the following assignment of errors: I THE TRIAL COURT ERRED IN ASSUMING THAT APPELLANT WAITED FOR HELEN AND ANGELAIDA OUTSIDE THE VIRGO PUBHOUSE AND IN NOT FINDING AS TRUE THE UNCONTROVERTED TESTIMONY OF THE ACCUSED-APPELLANT, THAT HE WAS SO DRUNK AND THAT HE WAS PRACTICALLY CARRIED BY THE TWO RECEPTIONISTS OF THE PUBHOUSE TO A ROOM OF THE LAMPARA HOTEL, WHICH HE THOUGHT WAS THE SLEEPING QUARTERS OF HELEN AND ANGELAIDA. II THE TRIAL COURT ERRED GRAVELY IN ITS MISTAKEN IMPRESSION, THAT APPELLANT WAS ARMED WITH A SHARP INSTRUMENT, WITH WHICH HE STABBED HELEN FIRST WHEN HE FOUND HIS WALLET CONTAINING P4,000.00 MISSING, AND THEN ANGELAIDA, WHO JUST ENTERED THE ROOM AND IN NOT FINDING TRUE THE UNCONTESTED TESTIMONY OF APPELLANT, THAT HE ACTED IN SELF-DEFENSE, UNDER AN IMPULSE OF UNCONTROLLABLE FEAR OF BEING KILLED. III THE TRIAL COURT ERRED IN ITS HOLDING THAT MURDER WAS COMMITTED BY THE APPELLANT, THROUGH AND BY MEANS OF TREACHERY AND IN NOT HOLDING THAT THE KILLING OF THE TWO VICTIMS WERE JUSTIFIED AND HAPPENED OUT OF SELFDEFENSE AND IN NOT FINDING THAT TREACHERY WAS NOT AT ALL PROVEN BY THE PROSECUTION. IV THE TRIAL COURT ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF 2 COUNTS

OF MURDER AND IN SENTENCING HIM TO TWO (2) PRISON TERMS OF RECLUSION PERPETUA AND IN NOT ACQUITTING APPELLANT OF THE CRIME CHARGED IN THE INFORMATION. This Court is not persuaded that accused-appellant was only acting in self-defense when he killed the victims. Where an accused charged with the killing of a person admits having caused that death but invokes self-defense to escape criminal liability, it becomes incumbent upon him to prove by clear and convincing evidence the positiveness of that justifying circumstance; otherwise, having admitted the killing, conviction is inescapable.vi[5] Self-defense is an affirmative allegation that must be established with certainty by sufficient and satisfactory proof.vii[6] To successfully interpose self-defense, accused-appellant must clearly and convincingly prove: (1) unlawful aggression on the part of the victim; (2) the reasonable necessity of the means employed to prevent or repel the attack; and (3) the person defending himself must not have provoked the victim into committing the act of aggression.viii[7] Although all three elements must concur, self-defense must rest on proof of unlawful aggression on the part of the victim. Unlawful aggression, in turn, presupposes an actual, sudden and unexpected attack, or an imminent danger therof, and not merely an intimidating attitude. There must exist a real and not just imagined danger to the life or personal safety of the person claiming self-defense.ix[8] Accused-appellant failed in his attempt to show the element of unlawful aggression. That one of the victims supposedly went on top of him and poked a sharp pointed instrument near his armpit while another tried to get his wallet is nothing but a self-serving statement which did not, in any way, meet the required quantum of proof for unlawful aggression. Neither did accused-appellant establish the reasonableness of the means employed to prevent or repel the so-called attack. Helen and Angelaida suffered multiple stab wounds while accusedappellant did not even have a single wound to present before the lower court. That he had a wound on his forefinger can hardly be compared to the extent of wounds inflicted upon his victims. Besides, his allegation that he had a wound on one of his fingers is again self-serving as he did not present a medical certificate to corroborate his testimony. For failure to prove unlawful aggression and the reasonableness and necessity of the means employed to prevent or repel the attack, accused-appellants plea of self-defense must fail.

Accused-appellant rejects the findings of the trial court that the killings were committed with treachery. He posits that upon wresting possession of the bladed instrument from one of his would-be assailants, he brandished the same in different directions without necessarily aiming at a particular part of the body of his victims. 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 ensure its execution without risk to himself arising from the defense which the offended party might make, which means that no opportunity was given to the latter to do so.x[9] The prosecution alleged the presence of treachery claiming that accused-appellant ensured the commission of the crime by attacking his victims without warning. The numerous stab wounds inflicted upon his victims deprived them of any means to defend themselves. The location of the stab wounds on the front and on the victims back attests to accused-appellants intention to kill his victims without giving them any opportunity to defend themselves. This Court does not agree with the prosecutions argument. Due to the gravity of the resulting offense, treachery must be proved as clearly as the crime itself. Treachery cannot be established from mere conjectures. Absent any particulars as to the manner in which the aggression commenced or how the act which resulted in the death of the victims unfolded, treachery cannot be appreciated.xi[10] The number of stab wounds as well as the location of some of them on the back of the victims do not necessarily imply that the killings were treacherous. For treachery to be properly appreciated, it must be indubitably proven as the crime itself. In the instant case, no one, except the accused-appellant, witnessed the killing. Naturally, the prosecution was unable to narrate in detail the manner of attack, its suddenness or unexpectedness, the relative positions of the victims and that of accused-appellant as well as the defenselessness of the two victims. In fact, the prosecutions evidence was bereft of any proof to show who initiated the incident or how the attack actually began. Granted that the number of stab wounds, as well as the location of some of them, at the back of the victims could be considered indications of treachery, it was not shown nonetheless that accused-appellant consciously and deliberately adopted such manner by which he killed his two victims in order to avoid any risk to himself and ensure its commission. In any case, it would be unnatural for accused-appellant to check-in and choose the motel room to commit the crime.

In the absence of any convincing proof that accused-appellant consciously and deliberately adopted the means by which he committed the crime in order to ensure its execution, this Court resolves the doubt in favor of accused-appellant. Without any circumstance to qualify the crime to murder, this Court holds accused-appellant guilty only of the lesser felony of homicide as defined and penalized under Article 249 of the Revised Penal Code, without any aggravating or mitigating circumstance. On the other hand, this Court cannot affirm the grant of moral damages amounting to P50,000.00 each to the heirs of the two victims. Moral damages to be awarded in favor of the heirs of the victims must rest upon sufficient proof of physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury.xii[11] Nothing in the records supports said grant. In the same manner, the award of actual damages amounting to P35,000.00 and P67,850.00 to the heirs of Helen Revilla and Angelaida Pascua, respectively cannot be sustained. Said amounts were allegedly incurrred in the interment of the deceased. However, the prosecution again failed to substantiate these expenses by competent evidence, such as receipts. The award of actual damages cannot rest on the bare allegation of the heirs of the offended party.xiii[12] WHEREFORE, based on the foregoing, the decision of the Regional Trial Court of Malabon finding accused-appellant guilty of two (2) counts of murder is MODIFIED. Instead, this Court finds accusedappellant Noel Aguilar y Amistuso guilty of two (2) counts of Homicide and he is hereby sentenced to suffer the indeterminate penalty of 10 years and 8 months of prision mayor as minimum to 17 years and 4 months of reclusion temporal as maximum for each count of homicide. The payment of P50,000.00 each to the heirs of the two victims as indemnity is SUSTAINED, but the awards of moral and actual damages are hereby DELETED. SO ORDERED.

SPO2 RUPERTO CABANLIG, Petitioner,

G.R. No. 148431

On 15 December 1993, the accused police officers Cabanlig, Padilla, Abesamis, Mercado and Esteban pleaded not guilty. The Charge - versus Cabanlig, Padilla, Abesamis, Mercado and Esteban were charged with murder in an amended information that reads as follows: Version of the Prosecution SANDIGANBAYAN and OFFICE OF THE SPECIAL PROSECUTOR, Respondents, July 28, 2005 Promulgated: That on or about September 28, 1992, in the Municipality of Penaranda, Province of Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, SPO[2] Ruperto C. Cabanlig, SPO1 Carlos E. Padilla, PO2 Meinhart C. Abesamis, SPO2 Lucio L. Mercado and SPO1 Rady S. Esteban, all public officers being members of the Philippine National Police, conspiring and confederating and mutually helping one another, with intent to kill, with treachery and evident premeditation, taking advantage of nighttime and uninhabited place to facilitate the execution of the crime, with use of firearms and without justifiable cause, did then and there, wilfully, unlawfully and feloniously attack, assault and shoot one Jimmy Valino, hitting him several times at the vital parts of his body, thereby inflicting upon the latter, serious and mortal wounds which were the direct and immediate cause of his death, which crime was committed by the accused in relation to their office as members of the Philippine National Police of Penaranda, Nueva Ecija, the deceased, who was then detained for robbery and under the custody of the accused, having been killed while being taken to the place where he allegedly concealed the effects of the crime, to the damage and prejudice of the heirs of said victim, in such amount as may be awarded under the provisions of the New Civil Code. CONTRARY LAW.[4] Arraignment and Plea TO Cabanlig, Mercado and Esteban were seated with Valino inside the main body of the jeep. Esteban was right behind Abesamis at the left bench. Valino, who was not handcuffed, was between Cabanlig and Mercado at the right bench. Valino was seated at Cabanligs left and at On 24 September 1992 a robbery occurred in the Municipality of Penaranda, Nueva Ecija. Four days later or on 28 September 1992, the investigating authorities apprehended three suspects: Jordan Magat (Magat), Randy Reyes (Reyes) and Valino. The police recovered most of the stolen items. However, a flower vase and a small radio were still missing. Cabanlig asked the three suspects where these two items were. Reyes replied that the items were at his house.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION

The Case This petition for review[1] seeks to reverse the Decision[2] of the Fifth Division of the Sandiganbayan dated 11 May 1999 and Resolution[3] dated 2 May 2001 affirming the conviction of SPO2 Ruperto Cabanlig (Cabanlig) in Criminal Case No. 19436 for homicide. The Sandiganbayan sentenced Cabanlig to suffer the indeterminate penalty of four months of arresto mayor as minimum to two years and four months of prision correctional as maximum and to pay P50,000 to the heirs of Jimmy Valino (Valino). Cabanlig shot Valino after Valino grabbed the M16 Armalite of another policeman and tried to escape from the custody of the police. The Sandiganbayan acquitted Cabanligs co-accused, SPO1 Carlos Padilla (Padilla), PO2 Meinhart Abesamis (Abesamis), SPO2 Lucio Mercado (Mercado) and SPO1 Rady Esteban (Esteban).

Cabanlig asked his colleagues, Padilla, Mercado, Abesamis and Esteban, to accompany him in retrieving the flower vase and radio. Cabanlig then brought out Reyes and Magat from their cell, intending to bring the two during the retrieval operation. It was at this point that Valino informed Cabanlig that he had moved the vase and radio to another location without the knowledge of his two cohorts. Cabanlig decided instead to bring along Valino, leaving behind Magat and Reyes.

Around 6:30 p.m., five fully armed policemen in uniform Cabanlig, Padilla, Mercado, Abesamis and Esteban escorted Valino to Barangay Sinasahan, Nueva Ecija to recover the missing flower vase and radio. The policemen and Valino were aboard a police vehicle, an Isuzu pick-up jeep. The jeep was built like an ordinary jeepney. The rear end of the jeep had no enclosure. A metal covering separated the drivers compartment and main body of the jeep. There was no opening or door between the two compartments of the jeep. Inside the main body of the jeep, were two long benches, each of which was located at the left and right side of the jeep.

Mercados right. Mercado was seated nearest to the opening of the rear of the jeep.

duty. Mercado denied that he told Lacanilao that he and his coaccused salvaged Valino. Cabanlig, Mercado, Abesamis, Padilla, and Esteban denied that they conspired to kill Valino. The Sandiganbayans Ruling

Just after the jeep had crossed the Philippine National Railway bridge and while the jeep was slowly negotiating a bumpy and potholed road, Valino suddenly grabbed Mercados M16 Armalite and jumped out of the jeep. Valino was able to grab Mercados M16 Armalite when Mercado scratched his head and tried to reach his back because some flying insects were pestering Mercado. Mercado shouted hoy! when Valino suddenly took the M16 Armalite. Cabanlig, who was then facing the rear of the vehicle, saw Valinos act of taking away the M16 Armalite. Cabanlig acted immediately. Without issuing any warning of any sort, and with still one foot on the running board, Cabanlig fired one shot at Valino, and after two to three seconds, Cabanlig fired four more successive shots. Valino did not fire any shot.

The Sandiganbayan acquitted Padilla, Abesamis, Mercado and Esteban as the court found no evidence that the policemen conspired to kill or summarily execute Valino. Since Cabanlig admitted shooting Valino, the burden is on Cabanlig to establish the presence of any circumstance that would relieve him of responsibility or mitigate the offense committed. The Sandiganbayan held that Cabanlig could not invoke self-defense or defense of a stranger. The only defense that Cabanlig could properly invoke in this case is fulfillment of duty. Cabanlig, however, failed to show that the shooting of Valino was the necessary consequence of the due performance of duty. The Sandiganbayan pointed out that while it was the duty of the policemen to stop the escaping detainee, Cabanlig exceeded the proper bounds of performing this duty when he shot Valino without warning.

On motion for reconsideration, Associate Justice Anacleto D. Badoy Jr. (Associate Justice Badoy) dissented from the decision. Associate Justice Badoy pointed out that there was imminent danger on the lives of the policemen when Valino grabbed the infallible Armalite[6] from Mercado and jumped out from the rear of the jeep. At a distance of only three feet from Cabanlig, Valino could have sprayed the policemen with bullets. The firing of a warning shot from Cabanlig was no longer necessary. Associate Justice Badoy thus argued for Cabanligs acquittal.

In a vote of four to one, the Sandiganbayan affirmed the decision.[7] The dispositive portion of the Resolution reads:

WHEREFORE, for lack of merit, the motion for reconsideration is hereby DENIED.[8]

The shooting happened around 7:00 p.m., at dusk or nag-aagaw ang dilim at liwanag. Cabanlig approached Valinos body to check its pulse. Finding none, Cabanlig declared Valino dead. Valino sustained three mortal wounds one at the back of the head, one at the left side of the chest, and one at the left lower back. Padilla and Esteban remained with the body. The other three policemen, including Cabanlig, went to a funeral parlor.

The Issues The Sandiganbayan found no circumstance that would qualify the crime to murder. Thus, the Sandiganbayan convicted Cabanlig only of homicide. The dispositive portion of the decision reads:

Cabanlig raises the following issues in his Memorandum:

The following morning, 29 September 1992, a certain SPO4 Segismundo Lacanilao (Lacanilao) of the Cabanatuan Police went to Barangay Sinasahan, Nueva Ecija to investigate a case. Lacanilao met Mercado who gave him instructions on how to settle the case that he was handling. During their conversation, Mercado related that he and his fellow policemen salvaged (summarily executed) a person the night before. Lacanilao asked who was salvaged. Mercado answered that it was Jimmy Valino. Mercado then asked Lacanilao why he was interested in the identity of the person who was salvaged. Lacanilao then answered that Jimmy Valino was his cousin. Mercado immediately turned around and left. Version of the Defense

WHEREFORE, premises considered, accused CARLOS ESTOQUE PADILLA, MEINHART CRUZ ABESAMIS, LUCIO LADIGNON MERCADO and RADY SALAZAR ESTEBAN are hereby ACQUITTED of the crime charged. Accused RUPERTO CONCEPCION CABANLIG is found GUILTY beyond reasonable doubt of the crime of Homicide and is hereby sentenced to suffer the indeterminate sentence of FOUR (4) MONTHS of arresto mayor, as minimum, to TWO (2) YEARS and FOUR (4) MONTHS of prision correccional, as maximum. He is further ordered to pay the heirs of Jimmy Valino the amount of FIFTY THOUSAND (P50,000.00) PESOS, and the costs. SO ORDERED.[5]

WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT THE DEFENSE OF FULFILLMENT OF DUTY PUT UP BY CABANLIG WAS INCOMPLETE WHETHER THE SANDIGANBAYAN ERRED IN RULING THAT CABANLIG COULD NOT INVOKE SELF-DEFENSE/DEFENSE OF STRANGER TO JUSTIFY HIS ACTIONS WHETHER THE SANDIGANBAYAN ERRED IN SENTENCING CABANLIG TO SUFFER IMPRISONMENT AND IN ORDERING HIM TO PAY THE AMOUNT OF P 50,000 TO THE HEIRS OF VALINO[9]

The Courts Ruling

Cabanlig admitted shooting Valino. However, Cabanlig justified the shooting as an act of self-defense and performance of

On the other hand, the requisites of fulfillment of duty are:

acquitted the policeman on the ground that the killing was done in the fulfillment of duty.

The petition has merit. We rule for Cabanligs acquittal. 1. The accused acted in the performance of a duty or in the lawful exercise of a right or office; The injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right or office.[12] The fugitives unlawful aggression in People v. Delima had already ceased when the policeman killed him. The fugitive was running away from the policeman when he was shot. If the policeman were a private person, not in the performance of duty, there would be no self-defense because there would be no unlawful aggression on the part of the deceased.[17] It may even appear that the public officer acting in the fulfillment of duty is the aggressor, but his aggression is not unlawful, it being necessary to fulfill his duty.[18]

2. Applicable Defense is Fulfillment of Duty

We first pass upon the issue of whether Cabanlig can invoke two or more justifying circumstances. While there is nothing in the law that prevents an accused from invoking the justifying circumstances or defenses in his favor, it is still up to the court to determine which justifying circumstance is applicable to the circumstances of a particular case.

Self-defense and fulfillment of duty operate on different principles.[10] Self-defense is based on the principle of self-preservation from mortal harm, while fulfillment of duty is premised on the due performance of duty. The difference between the two justifying circumstances is clear, as the requisites of self-defense and fulfillment of duty are different.

The elements of self-defense are as follows:

A policeman in the performance of duty is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm.[13] In case injury or death results from the policemans exercise of such force, the policeman could be justified in inflicting the injury or causing the death of the offender if the policeman had used necessary force. Since a policemans duty requires him to overcome the offender, the force exerted by the policeman may therefore differ from that which ordinarily may be offered in self-defense.[14] However, a policeman is never justified in using unnecessary force or in treating the offender with wanton violence, or in resorting to dangerous means when the arrest could be affected otherwise.[15]

While self-defense and performance of duty are two distinct justifying circumstances, self-defense or defense of a stranger may still be relevant even if the proper justifying circumstance in a given case is fulfillment of duty. For example, a policemans use of what appears to be excessive force could be justified if there was imminent danger to the policemans life or to that of a stranger. If the policeman used force to protect his life or that of a stranger, then the defense of fulfillment of duty would be complete, the second requisite being present.

In People v. Lagata,[19] a jail guard shot to death a prisoner whom he thought was attempting to escape. The Court convicted the jail guard of homicide because the facts showed that the prisoner was not at all trying to escape. The Court declared that the jail guard could only fire at the prisoner in selfdefense or if absolutely necessary to avoid the prisoners escape.

a) b)

Unlawful Aggression; Reasonable necessity of the means employed to prevent or repel it; Lack of sufficient provocation on the part of the person defending himself.[11] Unlike in self-defense where unlawful aggression is an element, in performance of duty, unlawful aggression from the victim is not a requisite. In People v. Delima,[16] a policeman was looking for a fugitive who had several days earlier escaped from prison. When the policeman found the fugitive, the fugitive was armed with a pointed piece of bamboo in the shape of a lance. The policeman demanded the surrender of the fugitive. The fugitive lunged at the policeman with his bamboo lance. The policeman dodged the lance and fired his revolver at the fugitive. The policeman missed. The fugitive ran away still holding the bamboo lance. The policeman pursued the fugitive and again fired his revolver, hitting and killing the fugitive. The Court In this case, Cabanlig, Padilla, Abesamis, Mercado and Esteban were in the performance of duty as policemen when they escorted Valino, an arrested robber, to retrieve some stolen items. We uphold the finding of the Sandiganbayan that there is no evidence that the policemen conspired to kill or summarily execute Valino. In fact, it was not Valino who was supposed to go with the policemen in the retrieval operations but his two other cohorts, Magat and Reyes. Had the policemen staged the escape to justify the killing of Valino, the M16 Armalite taken by Valino would not have been loaded with bullets.[20] Moreover, the alleged summary execution of Valino must be based on evidence and not on hearsay.

c)

Undoubtedly, the policemen were in the legitimate performance of their duty when Cabanlig shot Valino. Thus, fulfillment of duty is the justifying circumstance that is applicable to this case. To determine if this defense is complete, we have to examine if Cabanlig used necessary force to prevent Valino from escaping and in protecting himself and his co-accused policemen from imminent danger.

Had Cabanlig failed to shoot Valino immediately, the policemen would have been sitting ducks. All of the policemen were still inside the jeep when Valino suddenly grabbed the M16 Armalite. Cabanlig, Mercado and Esteban were hemmed in inside the main body of the jeep, in the direct line of fire had Valino used the M16 Armalite. There would have been no way for Cabanlig, Mercado and Esteban to secure their safety, as there were no doors on the sides of the jeep. The only way out of the jeep was from its rear from which Valino had jumped. Abesamis and Padilla who were in the drivers compartment were not aware that Valino had grabbed Mercados M16 Armalite. Abesamis and Padilla would have been unprepared for Valinos attack.

Fulfillment of Duty was Complete, Killing was Justified By suddenly grabbing the M16 Armalite from his unsuspecting police guard, Valino certainly did not intend merely to escape and run away as far and fast as possible from the policemen. Valino did not have to grab the M16 Armalite if his sole intention was only to flee from the policemen. If he had no intention to engage the policemen in a firefight, Valino could simply have jumped from the jeep without grabbing the M16 Armalite. Valinos chances of escaping unhurt would have been far better had he not grabbed the M16 Armalite which only provoked the policemen to recapture him and recover the M16 Armalite with greater vigor. Valinos act of grabbing the M16 Armalite clearly showed a hostile intention and even constituted unlawful aggression.

The Sandiganbayan, however, ruled that despite Valinos possession of a deadly firearm, Cabanlig had no right to shoot Valino without giving Valino the opportunity to surrender. The Sandiganbayan pointed out that under the General Rules of Engagement, the use of force should be applied only as a last resort when all other peaceful and non-violent means have been exhausted. The Sandiganbayan held that only such necessary and reasonable force should be applied as would be sufficient to conduct self-defense of a stranger, to subdue the clear and imminent danger posed, or to overcome resistance put up by an offender. The Sandiganbayan had very good reasons in steadfastly adhering to the policy that a law enforcer must first issue a warning before he could use force against an offender. A law enforcers overzealous performance of his duty could violate the rights of a citizen and worse cost the citizens life. We have always maintained that the judgment and discretion of public officers, in the performance of their duties, must be exercised neither capriciously nor oppressively, but within the limits of the law.[24] The issuance of a warning before a law enforcer could use force would prevent unnecessary bloodshed. Thus, whenever possible, a law enforcer should employ force only as a last resort and only after issuing a warning.

The Sandiganbayan convicted Cabanlig because his defense of fulfillment of duty was found to be incomplete. The Sandiganbayan believed that Cabanlig exceeded the fulfillment of his duty when he immediately shot Valino without issuing a warning so that the latter would stop.[21]

We disagree with the Sandiganbayan.

Certainly, an M16 Armalite is a far more powerful and deadly weapon than the bamboo lance that the fugitive had run away with in People v. Delima. The policeman in People v. Delima was held to have been justified in shooting to death the escaping fugitive because the policeman was merely performing his duty.

Facing imminent danger, the policemen had to act swiftly. Time was of the essence. It would have been foolhardy for the policemen to assume that Valino grabbed the M16 Armalite merely as a souvenir of a successful escape. As we have pointed out in Pomoy v. People[23]:

However, the duty to issue a warning is not absolutely mandated at all times and at all cost, to the detriment of the life of law enforcers. The directive to issue a warning contemplates a situation where several options are still available to the law enforcers. In exceptional circumstances such as this case, where the threat to the life of a law enforcer is already imminent, and there is no other option but to use force to subdue the offender, the law enforcers failure to issue a warning is excusable.

In this case, Valino was committing an offense in the presence of the policemen when Valino grabbed the M16 Armalite from Mercado and jumped from the jeep to escape. The policemen would have been justified in shooting Valino if the use of force was absolutely necessary to prevent his escape.[22] But Valino was not only an escaping detainee. Valino had also stolen the M16 Armalite of a policeman. The policemen had the duty not only to recapture Valino but also to recover the loose firearm. By grabbing Mercados M16 Armalite, which is a formidable firearm, Valino had placed the lives of the policemen in grave danger.

Again, it was in the lawful performance of his duty as a law enforcer that petitioner tried to defend his possession of the weapon when the victim suddenly tried to remove it from his holster. As an enforcer of the law, petitioner was duty-bound to prevent the snatching of his service weapon by anyone, especially by a detained person in his custody. Such weapon was likely to be used to facilitate escape and to kill or maim persons in the vicinity, including petitioner himself.

In this case, the embattled policemen did not have the luxury of time. Neither did they have much choice. Cabanligs shooting of Valino was an immediate and spontaneous reaction to imminent danger. The weapon grabbed by Valino was not just any firearm. It was an M16 Armalite.

The M16 Armalite is an assault rifle adopted by the United Sates (US) Army as a standard weapon in 1967 during the Vietnam War.[25] The M16 Armalite is still a general-issue rifle with the US Armed Forces and US law enforcement agencies.[26] The M16 Armalite has both semiautomatic and automatic capabilities.[27] It is 39 inches long, has a 30-round magazine and fires high-velocity .223-inch (5.56-mm) bullets.[28] The M16 Armalite is most effective at a range of 200 meters[29] but its maximum effective range could extend as far as 400 meters.[30] As a high velocity firearm, the M16 Armalite could be fired at close range rapidly or with much volume of fire.[31] These features make the M16 Armalite and its variants well suited for urban and jungle warfare.[32]

According to the Sandiganbayan, Valino was not turning around to shoot because two of the three gunshot wounds were on Valinos back. Indeed, two of the three gunshot wounds were on Valinos back: one at the back of the head and the other at the left lower back. The Sandiganbayan, however, overlooked the location of the third gunshot wound. It was three inches below the left clavicle or on the left top most part of the chest area based on the Medico Legal Sketch showing the entrances and exits of the three gunshot wounds.[33]

3. ENTRANCE ovaloid, 0.6 x 0.5 located at the back, left side, 9.0 cms. from the posterior median line; 119.5 cms. from the left heel; directed forward, downward involving the soft tissues, lacerating the liver; and bullet was recovered on the right anterior chest wall, 9.0 cms. form the anterior median line, 112.0 cms. from the right heel.

The Autopsy Report[34] confirms the location of the gunshot wounds, as follows:

The M16 Armalite whether on automatic or semiautomatic setting is a lethal weapon. This high-powered firearm was in the hands of an escaping detainee, who had sprung a surprise on his police escorts bottled inside the jeep. A warning from the policemen would have been pointless and would have cost them their lives.

GUNSHOT WOUNDS modified by embalming. 1. ENTRANCE ovaloid, 1.6 x 1.5 cms; with area of tattooing around the entrance, 4.0 x 3.0 cms.; located at the right postauricular region, 5.5 cms. behind and 1.5 cms. above the right external auditory meatus, directed forward downward fracturing the occipital bone, lacerating the right occipital portion of the brain and fracturing the right cheek bone and making an EXIT wound, 1.5 x 2.0 cms. located on right cheek, 4.0 cms. below and 3.0 cms.. in front of right external auditory meatus. 2. ENTRANCE ovaloid, 0.7 x 0.5 cms., located at the left chest; 6.5 cms. from the anterior median line, 136.5 cms. from the left heel directed backward, downward and to the right, involving soft tissues, fracturing the 3rd rib, left, lacerating the left upper lobe and the right lower lobe and finally making an EXIT wound at the back, right side, 1.4 x 0.8 cms., 19.0 cms. from the posterior median line and 132.0 cms. from the right heel and grazing the medial aspect of the right arm.

The Necropsy Report[35] also reveals the following:

For what is the purpose of a warning? A warning is issued when policemen have to identify themselves as such and to give opportunity to an offender to surrender. A warning in this case was dispensable. Valino knew that he was in the custody of policemen. Valino was also very well aware that even the mere act of escaping could injure or kill him. The policemen were fully armed and they could use force to recapture him. By grabbing the M16 Armalite of his police escort, Valino assumed the consequences of his brazen and determined act. Surrendering was clearly far from Valinos mind.

1. Gunshot Wound, entrance, 0.5 cm X 1.5 cms in size, located at the left side of the back of the head. The left parietal bone is fractured. The left temporal bone is also fractured. A wound of exit measuring 2 cms X 3 cms in size is located at the left temporal aspect of the head. 2. Gunshot [W]ound, entrance, 0.5 cm in diameter, located at the left side of the chest about three inches below the left clavicle. The wound is directed medially and made an exit wound at the right axilla measuring 2 X 2 cms in size. 3. Gunshot Wound, entrance, 0.5 cm in diameter located at the left lower back above the left lumbar. The left lung is collapsed and the liver is lacerated. Particles of lead [were] recovered in the liver tissues. No wound of exit. Cause of Death: Cerebral Hemorrhage Secondary Gunshot Wound In The Head

At any rate, Valino was amply warned. Mercado shouted hoy when Valino grabbed the M16 Armalite. Although Cabanlig admitted that he did not hear Mercado shout hoy, Mercados shout should have served as a warning to Valino. The verbal warning need not come from Cabanlig himself.

To

The records also show that Cabanlig first fired one shot. After a few seconds, Cabanlig fired four more shots. Cabanlig had to shoot Valino because Valino at one point was facing the police officers. The exigency of the situation warranted a quick response from the policemen.

The doctors who testified on the Autopsy[36] and Necropsy[37] Reports admitted that they could not determine which of the three gunshot wounds was first inflicted. However, we cannot disregard the significance of the gunshot wound on Valinos chest. Valino could not have been hit on the chest if he were not at one point facing the policemen.

Director of Prisons to report to this Court compliance within five (5) days from receipt of this Decision. No costs.

take Felixberto Sr.s gun from the cabinet and leave. She asked her mother where she was going and if she could come along, but appellant refused.5 Moments later, appellant returned and told Sassymae to buy ice cream at the commissary. Appellant gave her money and asked her to leave.6 After Sassymae left, appellant instructed Michael to follow his sister, but he refused as he was hungry. Appellant insisted and further told Michael not to make any noise as his father was sleeping. Nevertheless, appellant went back inside the house and turned up the volume of the television and the radio to full.7 Shortly after that, she came out again and gave Michael some money to buy food at the grocery. Instead of buying food, Michael bought ice candy and returned to the barracks located at the back of their house. Michael thereupon saw his friend Mac-Mac Nisperos who told him that he saw appellant running away from their house. Michael did not pay any attention to his friends comment, and simply continued eating his ice candy. Moments later, a certain Sgt. Ramos arrived and asked if something had happened in their house. Michael replied in the negative then entered their house. At that point, he saw his father lying on the bed with a hole in the left portion of his head and a gun at his left hand. Michael immediately went outside and informed Sgt. Ramos about what happened. Sgt. Ramos told him that appellant had reported the shooting incident to the Provost Marshall office.8 Then, Sassymae arrived and saw her father with a bullet wound on his head and a gun near his left hand.9 Felixberto Latosa, Jr., one (1) of the legitimate sons of appellant and the victim, also testified that sometime in December 2001, their father told him and his siblings over dinner about a threat to their lives by a certain Efren Sta. Inez.10 Appellant, testifying on her own behalf, on the other hand claimed that when Felixberto, Sr. woke up, he asked her to get his service pistol from the cabinet adjacent to their bed. As she was handing the pistol to him it suddenly fired, hitting Felixberto, Sr. who was still lying down. Shocked, she ran quickly to Felixberto, Sr.s office and asked for help.11 She also claimed that when Felixberto, Sr. asked her for his gun, she was on her way out of the house to follow her children who left for the market on an errand she had earlier given Sassymae. She claimed that she wanted to drive for them because it was hot. She ran after them but after a few minutes, when she realized that she did not have with her the keys to their jeep, she went back to their house. Felixberto, Sr. then asked again for his gun, and it was then that it fired as she was handing it to him.12

If the first shot were on the back of Valinos head, Valino would have immediately fallen to the ground as the bullet from Cabanligs M16 Armalite almost shattered Valinos skull. It would have been impossible for Valino to still turn and face the policemen in such a way that Cabanlig could still shoot Valino on the chest if the first shot was on the back of Valinos head.

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. SUSAN LATOSA y CHICO, Accused-Appellant. DECISION

The most probable and logical scenario: Valino was somewhat facing the policemen when he was shot, hence, the entry wound on Valinos chest. On being hit, Valino could have turned to his left almost falling, when two more bullets felled Valino. The two bullets then hit Valino on his lower left back and on the left side of the back of his head, in what sequence, we could not speculate on. At the very least, the gunshot wound on Valinos chest should have raised doubt in Cabanligs favor.

VILLARAMA, JR., J.: This is an appeal from the Decision1 dated April 23, 2008 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02192 which affirmed the April 12, 2006 Decision2 of the Regional Trial Court (RTC) of Pasig City, Branch 159, convicting appellant Susan Latosa y Chico of parricide. Appellant was charged with parricide in an information3 which reads,

Cabanlig is thus not guilty of homicide. At most, Cabanlig, Padilla, Abesamis, Mercado and Esteban are guilty only of gross negligence. The policemen transported Valino, an arrested robber, to a retrieval operation without handcuffing Valino. That no handcuffs were available in the police precinct is a very flimsy excuse. The policemen should have tightly bound Valinos hands with rope or some other sturdy material. Valinos cooperative demeanor should not have lulled the policemen to complacency. As it turned out, Valino was merely keeping up the appearance of good behavior as a prelude to a planned escape. We therefore recommend the filing of an administrative case against Cabanlig, Padilla, Abesamis, Mercado and Esteban for gross negligence.

That, on or about the 5th of February 2002, in the Municipality of Taguig, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then the legitimate wife of one Felixberto Latosa y Jaudalso, armed with and using an unlicensed gun, with intent to kill, did then and there willfully, unlawfully and feloniously shoot her husband, Felixberto Latosa y Jaudalso, hitting him on the head, thereby causing the latter to sustain gunshot wound which directly caused his death. CONTRARY TO LAW. Upon arraignment on June 25, 2002, appellant, with the assistance of counsel, pleaded not guilty. Trial thereafter ensued. The prosecutions evidence established the following version: On February 5, 2002, at around 2:00 in the afternoon, appellant and her husband Major Felixberto Latosa, Sr. (Felixberto) together with two (2) of their children, Sassymae Latosa (Sassymae) and Michael Latosa (Michael), were at their house in Fort Bonifacio. Felixberto, Sr. was then asleep4 when Sassymae saw appellant

WHEREFORE, we REVERSE the decision of the Sandiganbayan in Criminal Case No. 19436 convicting accused RUPERTO CONCEPCION CABANLIG of the crime of homicide. We ACQUIT RUPERTO CONCEPCION CABANLIG of the crime of homicide and ORDER his immediate release from prison, unless there are other lawful grounds to hold him. We DIRECT the

Appellant further described herself as a good mother and a good provider for their six (6) children whom she raised by herself while Felixberto, Sr. was in Mindanao. She claimed that they testified against her because they were manipulated by her brother-in-law, Francisco Latosa.13 She denied that Sassymae saw her holding a gun when she asked her to buy ice cream, alleging that Michael and Sassymae saw her holding the gun only when she placed it inside the cabinet before they proceeded to the hospital.14 Appellant also denied her childrens testimony that she was having an affair with a certain Col. Efren Sta. Inez (Sta. Inez), a policeman. She claimed that she first met Sta. Inez when her youngest brother was killed on June 6, 2001 by unidentified men. Sta. Inez was the one (1) who assisted her. She was alone at that time since her husband informed her that he could not leave his post in Mindanao for he had to rush some papers. She allegedly only saw Sta. Inez twice but admitted that Sta. Inez went to the precinct when he learned of the shooting incident.16 She also denied that she was terminated from her job at the Philippine Public Safety College due to immorality for having said affair. She claimed that she was terminated because she had incurred numerous absences from her work as she grieved the death of her youngest brother and had lost interest in her work after his death.17 The RTC found appellant guilty beyond reasonable doubt for killing her husband Felixberto, Sr. The dispositive portion of the decision reads: WHEREFORE, in view of the foregoing, this Court finds the accused SUSAN LATOSA Y CHICO "GUILTY" beyond reasonable doubt of the crime of parricide under Art. 246 of the Revised Penal Code as amended by RA 7659 in rel. to Sec. 1[,] 3rd par. PD 1866 as amended by RA 8294 and Sec. 5, RA 8294 and hereby sentences the said accused to suffer the penalty of reclusion perpetua and to further indemnify the victim the amount of P50,000 as civil indemnity[,] P50,000 as moral damages and P25,000 as exemplary damages. SO ORDERED.
18 15

circumstances surrounding the shooting incident. Their testimonies bore the hallmarks of truth as they were consistent on material points. The RTC found it inconceivable that the children would testify against their own mother or concoct a story of parricide unless they were impelled by their passion to condemn an injustice done to their father.19 The RTC, in finding appellant guilty, considered the following circumstantial evidence established by the prosecution: (1) shortly before the shooting, appellant asked her two (2) children to do errands for her which were not usually asked of them; (2) at the time of the shooting, only the appellant and Felixberto, Sr. were in the house; (3) appellant was seen running away from the house immediately after the shooting; (4) when Michael went inside their house, he found his father with a hole in the head and a gun in his left hand; (5) the medico-legal report showed that the cause of death was intracranial hemorrhage due to the gunshot wound on the head with the point of entry at the left temporal region; (6) the Firearms Identification Report concluded that appellant fired two (2) shots; (7) Felixberto, Sr. was right-handed and the gun was found near his left hand; (8) Sassymae testified that she heard Sta. Inez tell appellant "bakit mo inamin. Sana pinahawak mo kay Major iyong baril saka mo pinutok"; (9) appellants children testified that they were informed by Felixberto, Sr. regarding the threat of appellants paramour, Sta. Inez, to the whole family; and (10) Francisco Latosa presented a memorandum showing that appellant was terminated from her teaching job by reason of immorality.20 On appeal, the CA upheld the decision of the RTC. The CA held that since appellant admitted having killed her husband albeit allegedly by accident, she has the burden of proving the presence of the exempting circumstance of accident to relieve herself of criminal responsibility. She must rely on the strength of her own evidence and not on the weakness of the prosecution, for even if this be weak, it cannot be disbelieved after the appellant has admitted the killing.21 The CA, however, found appellants version of accidental shooting not credible. Citing the case of People v. Reyes,22 the CA held that appellants claim of accidental shooting was negated by the following facts: (1) a revolver is not prone to accidental firing as pressure on the trigger is necessary to make the gun fire, cocked or uncocked; and (2) when handing a gun to a person, the barrel or muzzle is never pointed to that person. In this case, appellant held the gun in one (1) hand and extended it towards her husband who was still lying in bed. Assuming that appellant was not aware of the basic firearm safety rule that the firearms muzzle is never pointed to a person, she failed to explain why the gun would accidentally fire, when it should not have fired unless there was pressure on the trigger. The location of Felixberto, Sr.s wound also showed that the shooting was not accidental. Appellant did not dispute that Felixberto, Sr. was lying down during the

shooting and that after the incident, the gun was found near his left hand. The CA found that it was contrary to human nature that a newly awakened military man would suddenly ask his wife, who was busy doing other things, to bring his firearm, and patiently wait for her to come back to their house, when the gun was just inside an adjacent cabinet only two (2) meters away from his bed.23 The dispositive portion of the CA decision reads as follows: WHEREFORE, premises considered, the assailed decision of the Regional Trial Court of Pasig City, Branch 159, in Criminal Case No. 122621-H finding SUSAN LATOSA y CHICO guilty beyond reasonable doubt of the crime of parricide under Article 246 of the Revised Penal Code and sentencing her to suffer the penalty of reclusion perpetua and ordering her to pay the heirs of Felixberto Latosa the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages is AFFIRMED. SO ORDERED.24 Undaunted, appellant filed a Notice of Appeal on May 12, 2008.25 Appellant argues that the circumstantial evidence presented by the prosecution was insufficient to prove that she intentionally killed her husband. She insists that the gun fired accidentally while she was giving it to Felixberto, Sr. Since she had no experience in handling firearms, she was not able to foresee that it would fire accidentally and hit her husband. After her husband was hit, she immediately rushed to his office and asked for assistance.26 The only issue the Court has to resolve in this case is whether the exempting circumstance of accident was established by appellant. The basis of appellants defense of accidental shooting is Article 12, paragraph 4 of the Revised Penal Code, as amended, which provides: ART. 12. Circumstances which exempt from criminal liability. The following are exempt from criminal liability: xxxx 4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it.

The RTC held that the claim of accidental shooting was inconsistent with the evidence considering the location of the gunshot wound, which was at the left temple of Felixberto, Sr., and the fact that the gun was found near Felixberto, Sr.s left hand despite his being right-handed. The trial court found that appellant planned the killing by asking her two (2) children to leave the house and, after the shooting, placing the gun near the victims left hand to suggest that the death was suicide. But appellant overlooked the fact that Felixberto, Sr. was righthanded. The trial court noted that despite the grueling crossexamination of the defense counsel, the Latosa children never wavered in their testimonies about what they knew regarding the

Thus, it was incumbent upon appellant to prove with clear and convincing evidence, the following essential requisites for the exempting circumstance of accident, to wit: 1. She was performing a lawful act; 2. With due care; 3. She caused the injury to her husband by mere accident; 4. Without fault or intention of causing it.27 To prove the circumstance she must rely on the strength of her own evidence and not on the weakness of that of the prosecution, for even if this be weak, it can not be disbelieved after the accused has admitted the killing.28 However, by no stretch of imagination could the pointing of the gun towards her husbands head and pulling the trigger be considered as performing a lawful act with due care. As correctly found by the CA, which we quote in full: Appellants version that she "accidentally shot" her husband is not credible. Appellants manner of carrying the caliber .45 pistol negates her claim of "due care" in the performance of an act. The location of the wound sustained by the victim shows that the shooting was not merely accidental. The victim was lying down and the fact that the gun was found near his left hand was not directly disputed by her. We find it contrary to human nature that a newly awakened military man would suddenly ask his wife for his firearm, and even patiently wait for her return to the house, when the said firearm was just inside the cabinet which, according to appellant, was just about two meters away from his bed. xxxx In the case at bench, appellant held the gun in one hand and extended it towards her husband who was still lying in bed. Assuming arguendo that appellant has never learned how to fire a gun and was merely handing the firearm over to the deceased, the muzzle is never pointed to a person, a basic firearms safety rule which appellant is deemed to have already known since she admitted, during trial, that she sometimes handed over the gun to her husband. Assuming further that she was not aware of this basic rule, it needed explaining why the gun would accidentally fire, when it should not, unless there was pressure on the trigger.29

There is no merit in appellants contention that the prosecution failed to prove by circumstantial evidence her motive in killing her husband. Intent to kill and not motive is the essential element of the offense on which her conviction rests. 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.30 In the instant case, the following circumstantial evidence considered by the RTC and affirmed by the CA satisfactorily established appellants intent to kill her husband and sustained her conviction for the crime, to wit: The prosecution established the following circumstantial evidence: (1) Susan Latosa, the accused, asked her twins to do errands for her. She first asked Sassymae to go to Commissary to buy ice cream, thereafter, she asked Michael to follow his sister at the Commissary which according to the prosecution witnesses was not the usual thing the accused would do; (2) Thereafter, it was only the accused and the victim who were left alone in the house; (3) After the witness Michael, son of the accused and the victim left and proceeded at the barracks located at the back of their house, Susan Latosa was seen running away from the house by Michaels friend named Macmac; (4) Immediately thereafter, Michael Latosa went inside the room of their barracks and saw his father with sort of a hole in the head, blood on the nose and had a gun in his left hand (TSN, May 5, 2003, pp. 7-8, 12-13); (5) The cause of death of the victim Felixberto Latosa was intracranial hemorrhage due to gunshot wound of the head (per Medico-legal Report No. M-052-2002, Exh. P); (6) Susan Latosas paraffin test yielded positive result for the presence of gunpowder nitrate in her right hand;

xxx (8) The point of entry of the gunshot wound found on the victim was located at the left temporal region as evidenced by Medico Legal Report No. M-052-2002 (Exhibit P); (9) The victim was a right-handed and the gun was found on the latters left hand; (10) Sassymae Latosa [testified] that she heard Col. Sta. Inez *tell+ her mother, "bakit mo inamin. Sana pinahawak mo kay Major iyong baril saka mo pinutok." (TSN, May 19, 2002, p. 13); and (11) The children testified that they were informed by the victim regarding the threat of Sta. Inez to the whole family who alleged[ly] has an amorous relationship with their mother. Francisco Latosa presented a memorandum that accused was terminated from her teaching job by reason of immorality.311avvphi1 Moreover, the Court finds no cogent reason to review much less depart now from the findings of the RTC as affirmed by the CA that appellants version is undeserving of credence. It is doctrinally settled that the assessments of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude under grilling examination. These are the most significant factors in evaluating the sincerity of witnesses and in unearthing the truth, especially in the face of conflicting testimonies. Through its observations during the entire proceedings, the trial court can be expected to determine, with reasonable discretion, whose testimony to accept and which witness to believe. Verily, findings of the trial court on such matters will not be disturbed on appeal unless some facts or circumstances of weight have been overlooked, misapprehended or misinterpreted so as to materially affect the disposition of the case.32 We find none in this case. One last note. On the matter of damages, the CA awarded exemplary damages in the amount of P25,000.00. We increase the award to P30,000.00 in light of prevailing jurisprudence33 fixing the award of exemplary damages to said amount. WHEREFORE, the appeal of Susan Latosa y Chico is DISMISSED. The April 23, 2008 Decision of the Court of Appeals in CA-G.R. CRH.C. No. 02192 is hereby AFFIRMED with MODIFICATION. The amount of exemplary damages is increased to P30,000.00.

With costs against the accused-appellant. SO ORDERED. PEOPLE OF THE PHILIPPINES, appellee, vs. ANACITO OPURAN, appellant. DECISION DAVIDE, JR., C.J.: Appellant Anacito Opuran was charged with two counts of murder before the Regional Trial Court of Catbalogan, Samar, Branch 29, for the death of Demetrio Patrimonio, Jr., and Allan Dacles under separate informations, the accusatory portions of which respectively read: Criminal Case No. 4693 That on or about November 19, 1998, at nighttime, at Km. 1, South Road, Municipality of Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, said accused, with deliberate intent to kill and treachery, did, then and there willfully, unlawfully, and feloniously attack, assault and stab Demetrio Patrimonio, Jr., with the use of a bladed weapon (5 long from tip to handle with scabbard), thereby inflicting upon the victim fatal stab wounds on the back of his body, which wounds resulted to his instantaneous death. All contrary to law, and with attendant qualifying circumstance of treachery.210[1] Criminal Case No. 4703 That on or about November 19, 1998, at nighttime, at Purok 3, Barangay 7, Municipality of Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, said accused, with deliberate intent to kill, with treachery, did, then and there, willfully, unlawfully and feloniously attack, assault and stab one Allan Dacles, who was lying on the bench, with the use of a bladed weapon, locally known as pisao, thereby inflicting upon the victim fatal stab wounds on the different parts of his body, which wounds resulted to his instantaneous death. All contrary to law, and with attendant qualifying circumstance of treachery.211[2]

After Anacito entered a plea of not guilty at his arraignment, trial ensued.212[3] The evidence for the prosecution discloses that on 19 November 1998, at about 6:30 p.m., prosecution witness Bambi Herrera was studying his lessons inside his house. His brother and a certain Jason Masbang were outside sitting side by side with each other on a plastic chair; opposite them was Allan Dacles, who was lying on a bench.213[4] Moments later, Jason barged into Bambis house, shouting: Theres a long-haired man! Bambi stood up and looked through the open door. He saw appellant Anacito Opuran stab Allan on the chest with a knife while the latter appeared to be trying to stand up from the bench. Although Allan had several stab wounds on different parts of his body, he managed to stand up and run inside Bambis house, with Anacito chasing him. Bambi immediately locked the door from the inside to prevent Anacito from entering. But the latter tried to force the door open by thrusting a knife at the door shutter. He also threw stones at the door. After a short while, Anacito left.214[5] With Anacito gone, Bambi went out to ask the aid of his neighbors so he could bring Allan to the hospital. He saw Anacitos two brothers and asked for their assistance. But one of them merely said: Never mind because he [referring to Anacito] is mentally imbalanced.215[6] As nobody from among his neighbors responded to his plea for help, Bambi carried Allan on his shoulders and dragged him to the lower portion of the neighborhood. Several persons, who were having a drinking session, helped Bambi bring Allan to the hospital. Allan, however, died about fifteen minutes later.216[7] At about 7:45 p.m. of the same day, prosecution witness Tomas Bacsal, Jr., of Barangay San Pablo, Catbalogan, Samar, was in the house of Demetrio Patrimonio, Sr., seeking medical advice from

the latters wife. While there, Tomas heard a commotion outside. He looked out from the balcony and saw people running. He learned that Anacito had stabbed somebody.217[8] After about fifteen minutes, while Tomas was on his way home, he saw Demetrio Patrimonio, Jr. He likewise noticed Anacito hiding in a dark place. When Demetrio Jr. reached the national highway, near the so-called lovers lane, Anacito emerged from his hiding place and stabbed Demetrio Jr. with a knife about three to four times.218[9] Tomas immediately ran to the house of the Demetrios to inform them of what he had just witnessed. He then saw Demetrio Jr. running towards his parents house, but the latter did not make it because he collapsed near the fence. Tomas also caught sight of Anacito running towards the direction of the house of the Opurans. Meanwhile, Demetrio Jr. was brought by his parents to the Samar Provincial Hospital, where he died the following day.219[10] Dr. Angel Tan, Medical Specialist II of the Samar Provincial Hospital, conducted an autopsy on the cadavers of Allan and Demetrio Jr. He found five stab wounds on Allans body, one of which was fatal because it affected the upper lobe of the right lung and bronchial vessel.220[11] Demetrio Jr. sustained four stab wounds and died of pulmonary failure due to hypovolemia from external and internal hemorrhage.221[12] For its part, the defense presented, as its first witness, the appellant himself, Anacito Opuran. He declared that on the evening of 19 November 1998, he was resting in their house in Canlapwas, another barangay in Catbalogan, Samar. He never went out that night. While he was sleeping at about 8:30 p.m., eight policemen entered his house, pointed their guns at him, and arrested him. He was brought to the police station and detained there until the following morning. He denied being present at the place and time of the stabbing incidents. He admitted knowing Demetrio Jr. as a distant relative and friend whom he had not quarreled with. As for Allan, he never knew him. He had no

misunderstanding with prosecution witness Bambi Herrera. He asserted that the accusations against him were fabricated because he was envied and lowly regarded by his accusers.222[13] Subsequent hearings were postponed owing principally to the failure of the defense to present witnesses. Then on 16 February 2000, the defense moved for the suspension of the hearing on the following grounds: (1) on 10 January 2000, upon motion of the defense, the trial court issued an Order authorizing the psychiatric examination of Anacito; (2) in consonance with that Order, Anacito underwent a psychiatric examination on 26 January 2000 conducted by Dr. Angel P. Tan; (3) Dr. Tan issued a Medical Certificate dated 26 January 2000 stating that Anacito had a normal mental status on that date but was suffering from some degree of Mental Aberration, which required further psychiatric evaluation at Tacloban City.223[14] The trial court thus ordered a deferment of the hearing and granted the motion for the psychiatric examination of Anacito at the Eastern Visayas Regional Medical Center (EVRMC), Tacloban City.224[15] On 3 August 2000, the trial court received the Medical Report of Dr. Lyn Verona, physician-psychiatrist of the EVRMC, on the psychiatric examination she conducted on Anacito. At the resumption of the hearings on 20 November 2000, Dr. Verona testified that she examined Anacito three times through interviews. From her interview with Anacitos sister, Remedios Opuran Manjeron, she learned of Anacitos psychiatric history of inability to sleep and talking irrelevantly. She found that Anacito had a psychotic disorder characterized by flight of ideas and auditory hallucinations. She confirmed her medical findings that Anacito was psychotic before and during the commission of the crime and even up to the present so that he could not stand trial and would need treatment and monthly check-up. Her diagnosis was that Anacito was suffering from schizophrenia.225[16] Remedios Opuran Manjeron testified that she brought his brother Anacito to the National Center for Mental Health (NCMH),

Mandaluyong, in 1986 because Anacito had difficulty sleeping and was talking irrelevantly.226[17] Anacito was treated as an outpatient, and was prescribed thorazine and evadyne.227[18] They stayed in Manila for one month. In 1989, they returned to the NCMH, and Anacito was prescribed the same medicine. Since they could not afford to stay long in Manila for follow-up treatments, Remedios requested that her brother be treated in Catbalogan. Dr. Belmonte of the NCMH, however, referred them to the EVRMC. Sometime in 1990, Remedios accompanied Anacito to the EVRMC for examination. A certain Dra. Peregrino prescribed an injectable medicine. But it was a certain Dr. Estrada of the NCMH who came to Catbalogan to administer the medicine in that same year. Since then until the year 2000, Anacito did not take any medicine, nor was he subjected to examination or treatment.228[19] Anacitos other sibling, Francisco Opuran, testified that at about 6:00 p.m. of 19 November 1998, he heard a loud voice outside their house. Anacito heard also the loud voices and then went out. When Francisco went out to verify, he did not see anything. A few minutes later he saw Anacito at the corner of the street carrying a knife. He surmised that Anacito had committed a crime, and so he hugged him. Anacito struggled to free himself, but Francisco brought him to Remedios house. Before the incident, he observed Anacito to be sometimes laughing, shouting, and uttering bad words, and sometimes silent.229[20] In its decision230[21] of 23 January 2001, the trial court found Anacito guilty of murder for the death of Demetrio Patrimonio, Jr., and homicide for the death of Allan Dacles. It decreed: WHEREFORE, the Court Finds Anacito Opuran y Balibalita GUILTY beyond reasonable doubt of the crimes specified hereunder, to wit: Murder, in Criminal Case No. 4693, and sentences him to the penalty of reclusion perpetua, to indemnify the heirs of Demetrio Patrimonio, Jr. in the amount of P50,000.00 plus P43,500.00 by way of actual damages, and to pay the costs; and

Homicide, in Criminal Case No. 4703, and, applying the Indeterminate Sentence Law, sentences him to suffer an imprisonment ranging from ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum to indemnify the heirs of Allan Dacles in the amount of P50,000.00 plus P10,000.00 for burial expenses and to pay the costs. Anacito seasonably appealed to us from the decision attributing to the trial court grave error in disregarding the exempting circumstance of insanity.231[22] He contends that he was suffering from a psychotic disorder and was, therefore, completely deprived of intelligence when he stabbed the victims. Even assuming in gratis argumenti that he is criminally liable, he is entitled to the mitigating circumstance under paragraph 9, Article 13 of the Revised Penal Code, which is illness as would diminish the exercise of the willpower of the offender without however depriving him of the consciousness of his acts. He likewise maintains that since treachery was not specifically alleged in the Information as a qualifying circumstance, he cannot be convicted of murder for the death of Demetrio Jr. The Office of the Solicitor General (OSG) disagrees and avers that Anacito failed to establish with the required proof his defense of insanity or his claim of the mitigating circumstance of diminished willpower. The mental state of Anacito, as testified to by Dr. Verona, corresponds to the period after the stabbing incidents. Further, Dr. Verona was certain that Anacito was not grossly insane, but she was uncertain that Anacito was unconscious at the time he stabbed the two victims. The OSG also argues that treachery was duly alleged and proved by the prosecution and should, therefore, be treated as a qualifying circumstance in the killing of Demetrio Jr. We agree with the OSG and affirm the trial courts judgment. In the determination of the culpability of every criminal actor, voluntariness is an essential element. Without it, the imputation of criminal responsibility and the imposition of the corresponding penalty cannot be legally sanctioned. The human mind is an entity, and understanding it is not purely an intellectual process but is dependent to a large degree upon emotional and psychological appreciation. A mans act is presumed voluntary.232[23] It is improper to assume the contrary, i.e. that acts were done unconsciously,233[24] for the moral and legal

presumption is that every person is presumed to be of sound mind,234[25] or that freedom and intelligence constitute the normal condition of a person.235[26] Thus, the presumption under Article 800 of the Civil Code is that everyone is sane. This presumption, however, may be overthrown by evidence of insanity, which under Article 12(1) of the Revised Penal Code exempts a person from criminal liability.236[27] He who pleads the exempting circumstance of insanity bears the burden of proving it,237[28] for insanity as a defense is in the nature of confession and avoidance.238[29] An accused invoking insanity admits to have committed the crime but claims that he is not guilty because he is insane. The testimony or proof of an accused's insanity must, however, relate to the time immediately preceding or coetaneous with the commission of the offense with which he is charged.239[30] It is, therefore, incumbent upon accuseds counsel to prove that his client was not in his right mind or was under the influence of a sudden attack of insanity immediately before or at the time he executed the act attributed to him.240[31] Since insanity is a condition of the mind, it is not susceptible of the usual means of proof. As no man can know what is going on in the mind of another, the state or condition of a person's mind can only be measured and judged by his behavior.241[32] Thus, the vagaries of the mind can only be known by outward acts, by means of which we read the thoughts, motives, and emotions of a

person, and then determine whether the acts conform to the practice of people of sound mind.242[33] Insanity is evinced by a deranged and perverted condition of the mental faculties which is manifested in language and conduct.243[34] However, not every aberration of the mind or mental deficiency constitutes insanity.244[35] As consistently held by us, A man may act crazy, but it does not necessarily and conclusively prove that he is legally so.245[36] Thus, we had previously decreed as insufficient or inconclusive proof of insanity certain strange behavior, such as, taking 120 cubic centimeters of cough syrup and consuming three sticks of marijuana before raping the victim;246*37+ slurping the victims blood and attempting to commit suicide after stabbing him;247[38] crying, swimming in the river with clothes on, and jumping off a jeepney.248[39] The stringent standard established in People v. Formigones249[40] requires that there be a complete deprivation of intelligence in committing the act, i.e., the accused acted without the least discernment because of a complete absence of the power to discern or a total deprivation of the will. In People v. Rafanan, Jr.,250[41] we analyzed the Formigones standard into two distinguishable tests: (a) the test of cognition whether there was a complete deprivation of intelligence in committing the criminal act and (b) the test of volition whether there was a total deprivation of freedom of the will. We

observed that our case law shows common reliance on the test of cognition, rather than on the test of volition, and has failed to turn up any case where an accused is exempted on the sole ground that he was totally deprived of the freedom of the will, i.e., without an accompanying complete deprivation of intelligence. This is expected, since a persons volition naturally reaches out only towards that which is represented as desirable by his intelligence, whether that intelligence be diseased or healthy.251[42] Establishing the insanity of an accused often requires opinion testimony which may be given by a witness who is intimately acquainted with the accused; has rational basis to conclude that the accused was insane based on his own perception; or is qualified as an expert, such as a psychiatrist.252[43] Let us examine the evidence offered to support Anacitos defense of insanity. The appellant points to the testimony of prosecution witness Bambi Herrera that Anacito was a silent man who would sharply stare at the lady boarders a few days before the stabbing incident, and would wear Barong Tagalog and long pants when there was no occasion requiring a formal attire. The appellant also highlights that the testimony of prosecution witness Tomas Bacsal, Jr., that there was a 15-minute time interval between the two stabbing incidents shows that the stabbing spree was without any known motive.253[44] The testimonial evidence of the defense also attempted to prove the alleged behavioral oddity of Anacito two to three days prior to the killing. His sister Remedios noticed that his eyes were reddish and that he was angry with her.254[45] His brother Francisco also observed that he (Anacito) would sometimes talk to himself, laugh, shout, and utter bad words, and , at times, he was just quiet.255[46] Also relied upon by the appellant are the testimony of Remedios on his psychiatric history and the expert testimony of the EVRMC psychiatrist, Dr. Verona. A careful scrutiny of the records, however, indicates that Anacito failed to prove by clear and convincing evidence the defense of

insanity. For one thing, it was only Bambis personal perception that there was no reason or occasion for Anacito to wear Barong Tagalog. Tested against the stringent criterion for insanity to be exempting, such deportment of Anacito, his occasional silence, and his acts of laughing, talking to himself, staring sharply, and stabbing his victims within a 15-minute interval are not sufficient proof that he was insane immediately before or at the time he committed the crimes. Such unusual behavior may be considered as mere abnormality of the mental faculties, which will not exclude imputability.256[47] Anacitos psychiatric history likewise fails to meet the stringent yardstick established by case law. What it shows is that Anacito was prescribed thorazine and evadyne, and later an injectable medicine to remedy his lack of sleep and noisiness. As the trial court noted, it was never shown that these drugs were for a mental illness that deprived Anacito of reason. Further, Anacito was just an out-patient at the NCMH, EVRMC, and Samar Provincial Hospital. While Remedios claimed that she requested the confinement of Anacito and that the doctors did not refuse her, the fact remains that Anacito was never confined in a mental institution. Although Dr. Verona testified that there was a recommendation for Anacitos confinement, there was no indication in the records as to when the recommendation was made, who made the recommendation, and the reason for the recommendation.257[48] At any rate, in People v. Legaspi,258[49] we discarded the confinement of the accused at the NCMH prior to the incident in question to be by itself proof of his insanity, there being no proof that he was adjudged insane by the institute. Applying this principle to Anacitos case, we find another cogent reason to reject his plea of insanity. The records are likewise clear that Anacito was not subjected to treatment from 1991 until 1999. While Remedios insisted that the medicine prescribed for Anacito ran out of stock allegedly in 1990, there was no proof that Anacito needed the medicine during that period. In fact, there was no intimation that he needed the medicine prior to the stabbing incident. She bought medicine for Anacito only in April 2000 because he was again noisy in the jail.259[50] It seems that it was only after the

stabbing incident, when he was in jail, that his symptoms reappeared. Moreover, as found by the trial court, the results of Dr. Veronas examinations on Anacito were based on incomplete or insufficient facts.260[51] For one thing, she admitted to have examined Anacito for only three sessions lasting one to two hours each.261[52] Her one-page medical report262[53] reads in part: Patient came in accompanied by policemen and sister. He was fairly kempt in appearance, wearing blue shirt and pants. Mesomorphic, dark complexion with earring on the left ear. Had flight of ideas, with auditory hallucination, kabastosan, kanan yawa. He further said his sleep was minanok and complained of occasional headache. He had no delusion. Judgment and insight fair. Fair impulse control. Comments: From the foregoing interviews and examinations, it is determined that the patient has a psychiatric disorder. It is most likely that the patient is psychotic before and during the commission of the crime. He is presently psychotic and cannot stand trial. He would need treatment and monthly check-up. We observe that Dr. Veronas conclusions have no supporting medical bases or data. She failed to demonstrate how she arrived at her conclusions. She failed to show her method of testing.263*54+ Further, she did not have Anacitos complete behavioral and psychiatric history. On the witness stand, she mentioned that Anacito could not distinguish right from wrong, but she was not certain that he was not conscious of killing his victims in 1998. She also declared that Anacito had a diagnostic case of schizophrenia, but stated in the next breath that Anacito was not grossly insane.264[55] Truly, there is nothing that can be discerned from Dr. Veronas short psychiatric evaluation report and her testimony that

Anacitos judgment and mental faculties were totally impaired as to warrant a conclusion that his mental condition in 1998 when he killed his victims was the same in 2000 when he was psychiatrically examined. The most that we can conclude is that her findings refer to the period after the stabbing accident and, hence, would prove Anacitos mental condition only for said time. It could be that Anacito was insane at the time he was examined by Dr. Verona. But, in all probability, insanity could have been contracted during the period of his detention pending trial. He was without contact with friends and relatives most of the time. He was perhaps troubled by his conscience, by the realization of the gravity of his offenses, or by the thought of a bleak future for him. The confluence of these circumstances may have conspired to disrupt his mental equilibrium. It must be stressed that an inquiry into the mental state of an accused should relate to the period immediately before or at the precise moment of the commission of the act which is the subject of the inquiry.265[56] His mental condition after that crucial period or during the trial is inconsequential for purposes of determining his criminal liability.266[57] Interestingly, Anacito failed to raise insanity at the earliest opportunity. He invoked it for the first time in the year 2000 and only after he had already testified on his defenses of alibi and denial. It has been held that the invocation of denial and alibi as defenses indicates that the accused was in full control of his mental faculties.267[58] Additionally, the trial judge observed that, during the hearings, Anacito was attentive, well-behaved, and responsive to the questions propounded to him. Thus, the shift in theory from denial and alibi to a plea of insanity, made apparently after the appellant realized the futility of his earlier defenses, is a clear indication that insanity is a mere concoction268[59] or an afterthought.269[60] In any event, Anacito failed to establish by convincing evidence his alleged insanity at the time he killed Demetrio Jr. and Allan Dacles. He is

thus presumed sane, and we are constrained to affirm his conviction.270[61] We likewise reject the alternative plea of Anacito that he be credited with the mitigating circumstance of diminished willpower. In the cases where we credited this mitigating circumstance after rejecting a plea of insanity, it was clear from the records that the accused had been suffering from a chronic mental disease that affected his intelligence and willpower for quite a number of years prior to the commission of the act he was being held for.271[62] The situation does not exist in the cases at bar. It was only in 2000 that Anacito was diagnosed as psychotic with flight of ideas and auditory hallucinations and was found to be schizophrenic. There is nothing on record that he had these symptoms the previous years or at the time he stabbed the victim. Curiously, Dr. Verona did not make a diagnosis of schizophrenia in her report, only at the witness stand. We agree with the trial court that treachery cannot be appreciated as far as the killing of Allan is concerned because the sole eyewitness did not see the commencement of the assault.272[63] For treachery to be considered, it must be present and seen by the witness right at the inception of the attack. Where no particulars are known as to how the killing began, the perpetration with treachery cannot be supposed.273[64] Treachery was correctly appreciated in the killing of Demetrio Jr. Anacito was lying in wait for his victim in a dark place at the national highway. When Demetrio Jr. reached the lovers lane, Anacito emerged from his hiding place and stabbed the former several times. Anacitos attack came without warning; it was deliberate and unexpected, affording the hapless, unarmed, and unsuspecting victim no opportunity to resist or defend himself.274[65] We do not find merit in appellants contention that he cannot be convicted of murder for the death of Demetrio Jr. because treachery was not alleged with specificity as a qualifying circumstance in the information. Such contention is belied by the

information itself, which alleged: All contrary to law, and with the attendant qualifying circumstance of treachery. In any event, even after the recent amendments to the Rules of Criminal Procedure, qualifying circumstances need not be preceded by descriptive words such as qualifying or qualified by to properly qualify an offense.275[66] We, therefore, sustain the penalty imposed by the trial court on Anacito. For the crime of murder, which is punishable by reclusion perpetua to death, he was correctly sentenced to suffer reclusion perpetua, the lower of the two indivisible penalties, since there was no other aggravating circumstance attending the commission of the crime. For the crime of homicide, which is punishable by reclusion temporal, he may be sentenced to an indeterminate penalty whose minimum is within the range of prision mayor and whose maximum is within the range of reclusion temporal in its medium period, there being no modifying circumstances. Coming now to the matter of damages. While Demetrio Sr. testified that he spent P43,500 for the wake and burial of his son, only P11,945276[67] is substantiated by receipts. Hence, in lieu of actual damages we shall award to Demetrio Jr.s heirs temperate damages277[68] of P25,000278[69] conformably with current jurisprudence.279[70] As to the burial expenses for Allan, his father Alfredo Dacles testified that he spent P10,000. However, he failed to present receipts to substantiate his claim. Nevertheless, we also grant temperate damages in the amount of P10,000 on the ground that it was reasonable to expect that the family of the victim incurred expenses for the coffin, wake, and burial. The award of civil indemnity of P50,000 for the respective heirs of Demetrio Jr. and Allan is affirmed in line with recent jurisprudence.280[71] Civil indemnity is mandatory and is granted

to the heirs of the victim without need of proof other than the commission of the crime.281[72] Apart from the civil indemnity, we shall award in favor of the heirs of each victim moral damages in the amount of P50,000 consistent with controlling case law.282[73] Moral damages are awarded despite the absence of proof of mental and emotional suffering of the victims heirs. As borne out by human nature and experience, a violent death invariably and necessarily brings about emotional pain and anguish on the part of the victims family.283[74] We shall also award in favor of the heirs of Demetrio Jr. exemplary damages in the amount of P25,000 in view of the presence of the qualifying aggravating circumstance of treachery.284[75] Thus, Anacito shall indemnify the heirs of Demetrio Patrimonio, Jr., damages in the total amount of P161,945 and the heirs of Allan damages in the total amount of P110,000. WHEREFORE, we AFFIRM, with modifications as to the damages, the Decision of the Regional Trial Court of Catbalogan, Samar, Branch 29, finding appellant Anacito Opuran guilty of the crimes of murder in Criminal Case No. 4693 and homicide in Criminal Case No. 4703, and sentencing him to suffer reclusion perpetua and an indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum, respectively. Apart from the P50,000 civil indemnity, he is ordered to pay (1) the heirs of Demetrio Patrimonio, Jr., in the amounts of (a) P50,000 as moral damages; (b) P25,000 as temperate damages; and (c) P25,000 as exemplary damages, or a total of P150,000; and (2) the heirs of Allan Dacles in the amounts of (a) P50,000 as moral damages; and (b) P10,000 as temperate damages, or a total of P110,000. Costs de oficio. SO ORDERED.