Round Two Cases Full Text
Round Two Cases Full Text
Round Two Cases Full Text
SUPREME COURT
Manila
EN BANC
G.R. No. L-12155
February 2, 1917
murder but homicide, and in the second place, that it is attempted and not
frustrated homicide.
As to the first contention, we are of the opinion that the crime committed
would have been murder if the girl had been killed. It is qualified by the
circumstance of alevosia, the accused making a sudden attack upon his
victim from the rear, or partly from the rear, and dealing her a terrible blow
in the back and side with his bolo. Such an attack necessitates the finding
that it was made treacherously; and that being so the crime would have
been qualified as murder if death had resulted.
As to the second contention, we are of the opinion that the crime was
frustrated and not attempted murder. Article 3 of the Penal Code defines a
frustrated felony as follows:
A felony is frustrated when the offender performs all the acts of
execution which should produce the felony as a consequence, but
which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
An attempted felony is defined thus:
There is an attempt when the offender commences the
commission of the felony directly by overt acts, and does not
perform all the acts of execution which constitute the felony by
reason of some cause or accident other than his own voluntarily
desistance.
The crime cannot be attempted murder. This is clear from the fact that the
defendant performed all of the acts which should have resulted in the
consummated crime and voluntarily desisted from further acts. A crime
cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by
some outside cause from performing all of the acts which should produce
the crime. In other words, to be an attempted crime the purpose of the
offender must be thwarted by a foreign force or agency which intervenes
and compels him to stop prior to the moment when he has performed all
of the acts which should produce the crime as a consequence, which acts
it is his intention to perform. If he has performed all of the acts which
should result in the consummation of the crime and voluntarily desists
Torres
and
Araullo,
Carson and Trent, JJ., concur in the result.
JJ., concur.
heal from one to seven days. 5 The doctor prescribed medicine for Rubens
back pain, which he had to take for one month. 6
Esmeraldo testified that at around 1:00 p.m. on May 3, 1998, Ruben
arrived at his house and banged the gate. Ruben challenged him and his
brothers to come out and fight. When he went out of the house and talked
to Ruben, the latter punched him. They wrestled with each other. He fell to
the ground. Edgardo arrived and pushed Ruben aside. His wife arrived,
and he was pulled away and brought to their house.
For his part, Ismael testified that he tried to pacify Ruben and his brother
Esmeraldo, but Ruben grabbed him by the hair. He managed to free
himself from Ruben and the latter fled. He went home afterwards. He did
not see his brother Edgardo at the scene.
Edgardo declared that at about 1:00 p.m. on May 3, 1998, he was
throwing garbage in front of their house. Ruben arrived and he went inside
the house to avoid a confrontation. Ruben banged the gate and ordered
him to get out of their house and even threatened to shoot him. His
brother Esmeraldo went out of their house and asked Ruben what the
problem was. A fist fight ensued. Edgardo rushed out of the house and
pushed Ruben aside. Ruben fell to the ground. When he stood up, he
pulled at Edgardos shirt and hair, and, in the process, Rubens head hit
the lamp post.7
On August 30, 2002, the trial court rendered judgment finding all the
accused guilty beyond reasonable doubt of frustrated murder. The
dispositive portion of the decision reads:
WHEREFORE, premises considered, all the accused are found GUILTY
beyond reasonable doubt and are sentenced to an imprisonment of six (6)
years and one (1) day to eight (8) years of prision mayor as the
prosecution has proved beyond reasonable doubt the culpability of the
accused. Likewise, the accused are to pay, jointly and severally, civil
indemnity to the private complainant in the amount of P30,000.00.
SO ORDERED.8
The trial court gave no credence to the collective testimonies of the
accused and their witnesses. The accused appealed to the CA, which
rendered judgment on June 8, 2004 affirming, with modification, the
appealed decision. The dispositive portion of the CA decision reads:
WHEREFORE, the Decision of the Regional Trial Court of Imus, Cavite,
Branch 90, is MODIFIED in that the appellants are convicted of
that it was only the arrival of the policemen that made the appellants
desist from their concerted act of trying to kill Ruben Rodil. 10
The Office of the Solicitor General (OSG), for its part, asserts that the
decision of the CA is correct, thus:
The evidence and testimonies of the prosecution witnesses defeat the
presumption of innocence raised by petitioners. The crime has been
clearly established with petitioners as the perpetrators. Their intent to kill
is very evident and was established beyond reasonable doubt.
Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly and
categorically declared that the victim Ruben Rodil was walking along St.
Peter Avenue when he was suddenly boxed by Esmeraldo "Baby" Rivera.
They further narrated that, soon thereafter, his two brothers Ismael and
Edgardo "Dagul" Rivera, coming from St. Peter II, ganged up on the
victim. Both Alicia Vera Cruz and Lucita Villejo recounted that they saw
Edgardo "Dagul" Rivera pick up a hollow block and hit Ruben Rodil with it
three (3) times. A careful review of their testimonies revealed the
suddenness and unexpectedness of the attack of petitioners. In this case,
the victim did not even have the slightest warning of the danger that lay
ahead as he was carrying his three-year old daughter. He was caught offguard by the assault of Esmeraldo "Baby" Rivera and the simultaneous
attack of the two other petitioners. It was also established that the victim
was hit by Edgardo "Dagul" Rivera, while he was lying on the ground and
being mauled by the other petitioners. Petitioners could have killed the
victim had he not managed to escape and had the police not promptly
intervened.
Petitioners also draw attention to the fact that the injury sustained by the
victim was superficial and, thus, not life threatening. The nature of the
injury does not negate the intent to kill. The Court of Appeals held:
As earlier stated by Dr. Cagingin, appellants could have killed the victim
had the hollow block directly hit his head, and had the police not promptly
intervened so that the brothers scampered away. When a wound is not
sufficient to cause death, but intent to kill is evident, the crime is
attempted. Intent to kill was shown by the fact that the three (3) brothers
helped each other maul the defenseless victim, and even after he had
already fallen to the ground; that one of them picked up a cement hollow
block and proceeded to hit the victim on the head with it three times; and
that it was only the arrival of the policemen that made the appellants
desist from their concerted act of trying to kill Ruben Rodil. 11
The petition is denied for lack of merit.
hollow block; they narrowly missed hitting the middle portion of his head. If
Edgardo had done so, Ruben would surely have died.
SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice
Records, p. 257.
CA rollo, p. 136.
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
CONSUELO YNARESSANTIAGO
Associate Justice
10
11
Id. at 70-71.
12
G.R. No. 142773, January 28, 2003, 444 Phil. 430, 450 (2003).
13
MINITA V. CHICO-NAZARIO
Associate Justice
15
16
Id. at 98-99.
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice
17
Footnotes
1
Records, p. 1.
Id.
People v. Sullano, G.R. No. 125896, May 11, 2000, 387 Phil.
668, 682 (2000).
belonged to CHITO (Ibid, p. 55) as he had seen the latter usually bringing
it to school inside the classroom (Ibid, p. 45).
In their presence, the CIS opened the bag and pulled out its contents,
among others, a white t-shirt with a Taunu (sic) Sigma Phi sign (Ibid, p. 7),
a Black Adidas short pants, a handkerchief , three (3) white T-shirts, an
underwear, and socks (Ibid).
Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants
(Exhibit "D-5"), and the handkerchief (Exhibit "D-3) to be CHITOs
because CHITO had lent the very same one to him . The t-shirt with
CHITOs fraternity symbol, CHITO used to wear on weekends, and the
handkerchief he saw CHITO used at least once in December.
That CHITO left his bag inside Room 310 in the morning of December 13,
1991, was what consisted mainly of Renato R. Alagadans testimony.
xxx xxx xxx.
The colored gray bag had a handle and a strap, was elongated to about
11/4 feet and appeared to be full but was closed with a zipper when
Renato saw it then (Ibid, pp. 19-20). At that time Christian, Gary, Bernard,
and Renato went back to Room 310 at around 3 to 4 oclock that
afternoon along with some CIS agents, they saw the bag at the same
place inside the bedroom where Renato had seen CHITO leave it. Not
until later that night at past 9 oclock in Camp Crame, however, did Renato
know what the contents of the bag were.
For its part, the defense presented, as its main witness, the petitioner
himself. He denied committing the crime imputed to him or making at any
time amorous advances on Malou. Unfolding a different version of the
incident, the defense sought to establish the following, as culled from the
same decision of the appellate court:
"SPECIMEN SUBMITTED:
xxx xxx xxx:
1) One (1) small white plastic bag marked UNIMART with the following:
xxx xxx xxx
same short pants given by Perla Duran from the fraternity party (TSN,
June 16, 1994, p. 20).
At 6 oclock in the morning of December 13, 1991, CHITO woke up . He
was already in his school uniform when, around 6:30 A.M, Joseph came
to the room not yet dressed up. He asked the latter why this was so and,
without elaborating on it, Joseph told him that something had happened
and to just go to Room 310 which CHITO did.
At Room 310, CHITO was told by Rommel Montes that somebody, whom
MALOU was not able to identify, went to the room of MALOU and tried to
rape her (TSN, April 25, 1994, p. 36). xxx.
Joseph told him that the security guard was not letting anybody out of the
Building . When two (2) CIS men came to the unit asking for Renato
Baleros, CHITO presented himself. Congressman Rodolfo B. Albano,
father of MALOU, then asked him for the key to Room 306.
xxx xxx xxx
The CIS men looked inside the bedroom and on the windows. Joseph was
told to dress up and the two (2) of them, CHITO and Joseph, were
brought to Camp Crame.
When they arrived at Camp Crame , Col. Managuelod asked Joseph
inside his room and talked to him for 30 minutes. xxx. No one interviewed
CHITO to ask his side.
xxx xxx xxx
Both CHITO and Joseph were taken to Prosecutor Abesamis who later
instructed them to undergo physical examination at the Camp Crame
Hospital .. At the hospital, CHITO and Joseph were physically
examined by a certain Dr. de Guzman who told them to strip .
xxx xxx xxx
CHITO had left his gray bag containing, among others, the black striped
short pants lent to him by Perla Duran (Exhibit "8-A", Original Records, p.
345), inside Room 310 at more/less 6:30 to 7 oclock in the morning of
December 13, 1991. The next time that he saw it was between 8 to 9 P.M.
when he and Joseph were brought before Fiscal Abesamis for inquest.
One of the CIS agents had taken it there and it was not opened up in his
presence but the contents of the bag were already laid out on the table of
Fiscal Abesamis who, however, made no effort to ask CHITO if the items
thereat were his.
The black Adidas short pants purportedly found in the bag, CHITO denied
putting in his gray bag which he had left at Room 306 in the early evening
of December 12, 1991 before going to the fraternity house. He likewise
disavowed placing said black Adidas short pants in his gray bag when he
returned to the apartment at past 1:00 oclock in the early morning of
December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he dressed up
at about 6 oclock in the morning to go to school and brought his gray bag
to Room 310 (Ibid. 25). In fact, at any time on December 13, 1991, he was
not aware that his gray bag ever contained any black short Adidas pants
(Ibid). He only found out for the first time that the black Adidas short pants
was alluded to be among the items inside his gray bag late in the
afternoon, when he was in Camp Crame.
Also taking the witness stand for the defense were petitioners fraternity
brothers, Alberto Leonardo and Robert Chan, who both testified being with
CHITO in the December 12, 1991 party held in Dr. Durans place at
Greenhills, riding on the same car going to and coming from the party and
dropping the petitioner off the Celestial Marie building after the party. Both
were one in saying that CHITO was wearing a barong tagalog, with t-shirt
inside, with short pants and leather shoes at the time they parted after the
party.7 Rommel Montes, a tenant of Room 310 of the said building, also
testified seeing CHITO between the hours of 1:30 and 2:00 A.M. of
December 13, 1991 trying to open the door of Room 306 while clad in
dark short pants and white barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair
of short pants with stripes after the dunking party held in her fathers
house.8 Presented as defense expert witness was Carmelita Vargas, a
forensic chemistry instructor whose actual demonstration in open court
showed that chloroform, being volatile, evaporates in thirty (30) seconds
without tearing nor staining the cloth on which it is applied. 9
On December 14, 1994, the trial court rendered its decision 10 convicting
petitioner of attempted rape and accordingly sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the foregoing,
the Court finds the accused Renato D. Baleros, Jr., alias "Chito", guilty
beyond reasonable doubt of the crime of attempted rape as principal and
as charged in the information and hereby sentences him to suffer an
imprisonment ranging from FOUR (4) YEARS, TWO (2) MONTHS AND
ONE (1) DAY of Prision Correctional, as Minimum to TEN (10) YEARS of
Prision Mayor as Maximum, with all the accessory penalties provided by
law, and for the accused to pay the offended party Martina Lourdes T.
Albano, the sum of P50,000.00 by way of Moral and exemplary damages,
plus reasonable Attorneys fees of P30,000.00, without subsidiary
imprisonment in case of insolvency, and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate recourse was
docketed as CA-G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated
January 13, 1999, affirmed the trial courts judgment of conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from the
findings of the court a quo, the decision appealed from is hereby
AFFIRMED in toto. Costs against appellant.
SO ORDERED.11
Petitioner moved for reconsideration, but his motion was denied by the CA
in its equally assailed resolution of March 31, 1999. 12
Petitioner is now with this Court, on the contention that the CA erred 1. In not finding that it is improbable for petitioner to have
committed the attempted rape imputed to him, absent sufficient,
competent and convincing evidence to prove the offense charged.
2. In convicting petitioner of attempted rape on the basis merely of
circumstantial evidence since the prosecution failed to satisfy all
the requisites for conviction based thereon.
3. In not finding that the circumstances it relied on to convict the
petitioner are unreliable, inconclusive and contradictory.
4. In not finding that proof of motive is miserably wanting in his
case.
5. In awarding damages in favor of the complainant despite the
fact that the award was improper and unjustified absent any
evidence to prove the same.
6. In failing to appreciate in his favor the constitutional
presumption of innocence and that moral certainty has not been
the law, for there can not be any other logical conclusion other than that
the petitioner intended to ravish Malou after he attempted to put her to an
induced sleep. The Solicitor General, echoing what the CA said, adds that
if petitioners intention was otherwise, he would not have lain on top of the
victim.15
Under Article 335 of the Revised Penal Code, rape is committed by a man
who has carnal knowledge or intercourse with a woman under any of the
following circumstances: (1) By using force or intimidation; (2) When the
woman is deprived of reason or otherwise unconscious; and (3) When the
woman is under twelve years of age or is demented. Under Article 6, in
relation to the aforementioned article of the same code, rape is attempted
when the offender commences the commission of rape directly by overt
acts and does not perform all the acts of execution which should produce
the crime of rape by reason of some cause or accident other than his own
spontaneous desistance.16
Expounding on the nature of an attempted felony, the Court, speaking thru
Justice Claro M. Recto in People vs. Lamahang, 17 stated that "the attempt
which the Penal Code punishes is that which has a logical connection to a
particular, concrete offense; that which is the beginning of the execution of
the offense by overt acts of the perpetrator, leading directly to its
realization and consummation." Absent the unavoidable connection, like
the logical and natural relation of the cause and its effect, as where the
purpose of the offender in performing an act is not certain, meaning the
nature of the act in relation to its objective is ambiguous, then what
obtains is an attempt to commit an indeterminate offense, which is not a
juridical fact from the standpoint of the Penal Code. 18
There is absolutely no dispute about the absence of sexual intercourse or
carnal knowledge in the present case. The next question that thus comes
to the fore is whether or not the act of the petitioner, i.e., the pressing of a
chemical-soaked cloth while on top of Malou, constitutes an overt act of
rape.1avvphil.net
Overt or external act has been defined as some physical activity or deed,
indicating the intention to commit a particular crime, more than a mere
planning or preparation, which if carried out to its complete termination
following its natural course, without being frustrated by external obstacles
nor by the voluntary desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense.19
Harmonizing the above definition to the facts of this case, it would be too
strained to construe petitioner's act of pressing a chemical-soaked cloth in
the mouth of Malou which would induce her to sleep as an overt act that
will logically and necessarily ripen into rape. As it were, petitioner did not
commence at all the performance of any act indicative of an intent or
attempt to rape Malou. It cannot be overemphasized that petitioner was
fully clothed and that there was no attempt on his part to undress Malou,
let alone touch her private part. For what reason petitioner wanted the
complainant unconscious, if that was really his immediate intention, is
anybodys guess. The CA maintained that if the petitioner had no intention
to rape, he would not have lain on top of the complainant. Plodding on,
the appellate court even anticipated the next step that the petitioner would
have taken if the victim had been rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have
to come later. His sexual organ is not yet exposed because his intended
victim is still struggling. Where the intended victim is an educated woman
already mature in age, it is very unlikely that a rapist would be in his
naked glory before even starting his attack on her. He has to make her
lose her guard first, or as in this case, her unconsciousness. 20
At bottom then, the appellate court indulges in plain speculation, a
practice disfavored under the rule on evidence in criminal cases. For,
mere speculations and probabilities cannot substitute for proof required to
establish the guilt of an accused beyond reasonable doubt. 21
In Perez vs. Court of Appeals, 22 the Court acquitted therein petitioner of
the crime of attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an essential act of execution to
produce the felony. Thus, for there to be an attempted rape, the accused
must have commenced the act of penetrating his sexual organ to the
vagina of the victim but for some cause or accident other than his own
spontaneous desistance, the penetration, however, slight, is not
completed.
xxx xxx xxx
Petitioners act of lying on top of the complainant, embracing and kissing
her, mashing her breasts, inserting his hand inside her panty and touching
her sexual organ, while admittedly obscene and detestable acts, do not
constitute attempted rape absent any showing that petitioner actually
commenced to force his penis into the complainants sexual organ. xxx.
Likewise in People vs. Pancho,23 the Court held:
xxx, appellant was merely holding complainants feet when his Tito Onio
arrived at the alleged locus criminis. Thus, it would be stretching to the
extreme our credulity if we were to conclude that mere holding of the feet
is attempted rape.
CANCIO C. GARCIA
Associate Justice
WE CONCUR:
The penalty for coercion falling under the second paragraph of Article 287
of the Revised Penal Code is arresto menor or a fine ranging from P5.00
to P200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming
that of the Regional Trial Court of Manila, is hereby REVERSED and SET
ASIDE and a new one entered ACQUITTING petitioner Renato D.
Baleros, Jr. of the charge for attempted rape. Petitioner, however, is
adjudged GUILTY of light coercion and is accordingly sentenced to 30
days of arresto menor and to pay a fine of P200.00, with the accessory
penalties thereof and to pay the costs.
SO ORDERED.
REYNATO S. PUNO
Associate Justice
Chairperson
( On Leave )
ANGELINA SANDOVAL-GUTIERREZ*
Associate Justice
RENATO C. CORONA
Asscociate Justice
ADOLFO S. AZCUNA
Associate Justice
AT T E S TAT I O N
I attest that the conclusions in the above decision were reached in
consultation before the case was assigned to the writer of the opinion of
the Courts Division.
REYNATO S .PUNO
Associate Justice
Chairperson, Second Division
C E R T I F I C AT I O N
Pursuant to Article VIII, Section 13 of the Constitution, and the Division
Chairman's Attestation, it is hereby certified that the conclusions in the
above decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes
*
On Leave.
20
21
Id., p. 273.
22
23
24
Id., p. 42.
25
26
TSN, December 15, 1993, pp. 18-19; TSN, December 20, 1993,
pp. 23-24.
8
10
11
12
13
People vs. Cubcubin, Jr., 413 Phil. 249 (2001), citing People vs.
Gallarde, 382 Phil. 718 (2000).
14
People vs. Sevileno, 425 SCRA 247 (2004), citing People vs.
Navarro, 407 SCRA 221 (2003).
15
16
17
18
Ibid.
19
As far as can be told, 2 the last time this Court extensively considered
whether an accused was guilty of frustrated or consummated theft was in
1918, in People v. Adiao.3 A more cursory
treatment of the question was followed in 1929, in People v.
Sobrevilla,4 and in 1984, in Empelis v. IAC. 5 This petition now gives
occasion for us to finally and fully measure if or how frustrated theft is
susceptible to commission under the Revised Penal Code.
I.
The basic facts are no longer disputed before us. The case stems from an
Information6 charging petitioner Aristotel Valenzuela (petitioner) and Jovy
Calderon (Calderon) with the crime of theft. On 19 May 1994, at around
4:30 p.m., petitioner and Calderon were sighted outside the Super Sale
Club, a supermarket within the ShoeMart (SM) complex along North
EDSA, by Lorenzo Lago (Lago), a security guard who was then manning
his post at the open parking area of the supermarket. Lago saw petitioner,
who was wearing an identification card with the mark "Receiving
Dispatching Unit (RDU)," hauling a push cart with cases of detergent of
the well-known "Tide" brand. Petitioner unloaded these cases in an open
parking space, where Calderon was waiting. Petitioner then returned
inside the supermarket, and after five (5) minutes, emerged with more
cartons of Tide Ultramatic and again unloaded these boxes to the same
area in the open parking space.7
Thereafter, petitioner left the parking area and haled a taxi. He boarded
the cab and directed it towards the parking space where Calderon was
waiting. Calderon loaded the cartons of Tide Ultramatic inside the taxi,
then boarded the vehicle. All these acts were eyed by Lago, who
proceeded to stop the taxi as it was leaving the open parking area. When
Lago asked petitioner for a receipt of the merchandise, petitioner and
Calderon reacted by fleeing on foot, but Lago fired a warning shot to alert
his fellow security guards of the incident. Petitioner and Calderon were
apprehended at the scene, and the stolen merchandise recovered. 8 The
filched items seized from the duo were four (4) cases of Tide Ultramatic,
one (1) case of Ultra 25 grams, and three (3) additional cases of
detergent, the goods with an aggregate value of P12,090.00.9
Petitioner and Calderon were first brought to the SM security office before
they were transferred on the same day to the Baler Station II of the
Philippine National Police, Quezon City, for investigation. It appears from
the police investigation records that apart from petitioner and Calderon,
four (4) other persons were apprehended by the security guards at the
scene and delivered to police custody at the Baler PNP Station in
connection with the incident. However, after the matter was referred to the
Office of the Quezon City Prosecutor, only petitioner and Calderon were
charged with theft by the Assistant City Prosecutor, in Informations
prepared on 20 May 1994, the day after the incident. 10
After pleading not guilty on arraignment, at the trial, petitioner and
Calderon both claimed having been innocent bystanders within the vicinity
of the Super Sale Club on the afternoon of 19 May 1994 when they were
haled by Lago and his fellow security guards after a commotion and
brought to the Baler PNP Station. Calderon alleged that on the afternoon
of the incident, he was at the Super Sale Club to withdraw from his ATM
account, accompanied by his neighbor, Leoncio Rosulada. 11 As the queue
for the ATM was long, Calderon and Rosulada decided to buy snacks
inside the supermarket. It was while they were eating that they heard the
gunshot fired by Lago, leading them to head out of the building to check
what was
transpiring. As they were outside, they were suddenly "grabbed" by a
security guard, thus commencing their detention. 12 Meanwhile, petitioner
testified during trial that he and his cousin, a Gregorio Valenzuela, 13 had
been at the parking lot, walking beside the nearby BLISS complex and
headed to ride a tricycle going to Pag-asa, when they saw the security
guard Lago fire a shot. The gunshot caused him and the other people at
the scene to start running, at which point he was apprehended by Lago
and brought to the security office. Petitioner claimed he was detained at
the security office until around 9:00 p.m., at which time he and the others
were brought to the Baler Police Station. At the station, petitioner denied
having stolen the cartons of detergent, but he was detained overnight, and
eventually brought to the prosecutors office where he was charged with
theft.14 During petitioners cross-examination, he admitted that he had
been employed as a "bundler" of GMS Marketing, "assigned at the
supermarket" though not at SM.15
In a Decision16 promulgated on 1 February 2000, the Regional Trial Court
(RTC) of Quezon City, Branch 90, convicted both petitioner and Calderon
of the crime of consummated theft. They were sentenced to an
indeterminate prison term of two (2) years of prision correccional as
minimum to seven (7) years of prision mayor as maximum. 17 The RTC
found credible the testimonies of the prosecution witnesses and
established the convictions on the positive identification of the accused as
perpetrators of the crime.
Both accused filed their respective Notices of Appeal, 18 but only petitioner
filed a brief19 with the Court of Appeals, causing the appellate court to
deem Calderons appeal as abandoned and consequently dismissed.
Before the Court of Appeals, petitioner argued that he should only be
scenario that involves the thief having to exit with the stolen property
through a supervised egress, such as a supermarket checkout counter or
a parking area pay booth, may easily call for the application of Dio and
Flores. The fact that lower courts have not hesitated to lay down
convictions for frustrated theft further validates that Dio and Flores and
the theories offered therein on frustrated theft have borne some weight in
our jurisprudential system. The time is thus ripe for us to examine whether
those theories are correct and should continue to influence prosecutors
and judges in the future.
III.
To delve into any extended analysis of Dio and Flores, as well as the
specific issues relative to "frustrated theft," it is necessary to first refer to
the basic rules on the three stages of crimes under our Revised Penal
Code.30
Article 6 defines those three stages, namely the consummated, frustrated
and attempted felonies. A felony is consummated "when all the elements
necessary for its execution and accomplishment are present." It is
frustrated "when the offender performs all the acts of execution which
would produce the felony as a consequence but which, nevertheless, do
not produce it by reason of causes independent of the will of the
perpetrator." Finally, it is attempted "when the offender commences the
commission of a felony directly by overt acts, and does not perform all the
acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance."
Each felony under the Revised Penal Code has a "subjective phase," or
that portion of the acts constituting the crime included between the act
which begins the commission of the crime and the last act performed by
the offender which, with prior acts, should result in the consummated
crime.31 After that point has been breached, the subjective phase ends
and the objective phase begins. 32 It has been held that if the offender
never passes the subjective phase of the offense, the crime is merely
attempted.33 On the other hand, the subjective phase is completely
passed in case of frustrated crimes, for in such instances, "[s]ubjectively
the crime is complete."34
Truly, an easy distinction lies between consummated and frustrated
felonies on one hand, and attempted felonies on the other. So long as the
offender fails to complete all the acts of execution despite commencing
the commission of a felony, the crime is undoubtedly in the attempted
stage. Since the specific acts of execution that define each crime under
the Revised Penal Code are generally enumerated in the code itself, the
We next turn to the statutory definition of theft. Under Article 308 of the
Revised Penal Code, its elements are spelled out as follows:
Art. 308. Who are liable for theft. Theft is committed by any person who,
with intent to gain but without violence against or intimidation of persons
nor force upon things, shall take personal property of another without the
latters consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the
same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of
another, shall remove or make use of the fruits or object of the damage
caused by him; and
3. Any person who shall enter an inclosed estate or a field where trespass
is forbidden or which belongs to another and without the consent of its
owner, shall hunt or fish upon the same or shall gather cereals, or other
forest or farm products.
Article 308 provides for a general definition of theft, and three alternative
and highly idiosyncratic means by which theft may be committed. 41 In the
present discussion, we need to concern ourselves only with the general
definition since it was under it that the prosecution of the accused was
undertaken and sustained. On the face of the definition, there is only one
operative act of execution by the actor involved in theft the taking of
personal property of another. It is also clear from the provision that in
order that such taking may be qualified as theft, there must further be
present the descriptive circumstances that the taking was with intent to
gain; without force upon things or violence against or intimidation of
persons; and it was without the consent of the owner of the property.
Indeed, we have long recognized the following elements of theft as
provided for in Article 308 of the Revised Penal Code, namely: (1) that
there be taking of personal property; (2) that said property belongs to
another; (3) that the taking be done with intent to gain; (4) that the taking
be done without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of
persons or force upon things.42
In his commentaries, Judge Guevarra traces the history of the definition of
theft, which under early Roman law as defined by Gaius, was so broad
enough as to encompass "any kind of physical handling of property
that the defendant had performed all the acts of execution and considered
the theft as consummated. (Decision of the Supreme Court of Spain,
December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of
a key opened up a case, and from the case took a small box, which was
also opened with a key, from which in turn he took a purse containing 461
reales and 20 centimos, and then he placed the money over the cover of
the case; just at this moment he was caught by two guards who were
stationed in another room near-by. The court considered this as
consummated robbery, and said: "[x x x] The accused [x x x] having
materially taken possession of the money from the moment he took it from
the place where it had been, and having taken it with his hands with intent
to appropriate the same, he executed all the acts necessary to constitute
the crime which was thereby produced; only the act of making use of the
thing having been frustrated, which, however, does not go to make the
elements of the consummated crime." (Decision of the Supreme Court of
Spain, June 13, 1882.)56
It is clear from the facts of Adiao itself, and the three (3) Spanish decisions
cited therein, that the criminal actors in all these cases had been able to
obtain full possession of the personal property prior to their apprehension.
The interval between the commission of the acts of theft and the
apprehension of the thieves did vary, from "sometime later" in the 1898
decision; to the very moment the thief had just extracted the money in a
purse which had been stored as it was in the 1882 decision; and before
the thief had been able to spirit the item stolen from the building where the
theft took place, as had happened in Adiao and the 1897 decision. Still,
such intervals proved of no consequence in those cases, as it was ruled
that the thefts in each of those cases was consummated by the actual
possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was
guilty only of frustrated rather than consummated theft. The case is
People v. Sobrevilla,57 where the accused, while in the midst of a crowd in
a public market, was already able to abstract a pocketbook from the
trousers of the victim when the latter, perceiving the theft, "caught hold of
the [accused]s shirt-front, at the same time shouting for a policeman; after
a struggle, he recovered his pocket-book and let go of the defendant, who
was afterwards caught by a policeman."58 In rejecting the contention that
only frustrated theft was established, the Court simply said, without further
comment or elaboration:
We believe that such a contention is groundless. The [accused]
succeeded in taking the pocket-book, and that determines the crime of
theft. If the pocket-book was afterwards recovered, such recovery does
not affect the [accuseds] criminal liability, which arose from the [accused]
having succeeded in taking the pocket-book.59
Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein
contradict the position of petitioner in this case. Yet to simply affirm
without further comment would be disingenuous, as there is another
school of thought on when theft is consummated, as reflected in the Dio
and Flores decisions.
Dio was decided by the Court of Appeals in 1949, some 31 years after
Adiao and 15 years before Flores. The accused therein, a driver
employed by the United States Army, had driven his truck into the port
area of the South Harbor, to unload a truckload of materials to waiting
U.S. Army personnel. After he had finished unloading, accused drove
away his truck from the Port, but as he was approaching a checkpoint of
the Military Police, he was stopped by an M.P. who inspected the truck
and found therein three boxes of army rifles. The accused later contended
that he had been stopped by four men who had loaded the boxes with the
agreement that they were to meet him and retrieve the rifles after he had
passed the checkpoint. The trial court convicted accused of consummated
theft, but the Court of Appeals modified the conviction, holding instead
that only frustrated theft had been committed.
In doing so, the appellate court pointed out that the evident intent of the
accused was to let the boxes of rifles "pass through the checkpoint,
perhaps in the belief that as the truck had already unloaded its cargo
inside the depot, it would be allowed to pass through the check point
without further investigation or checking." 60 This point was deemed
material and indicative that the theft had not been fully produced, for the
Court of Appeals pronounced that "the fact determinative of
consummation is the ability of the thief to dispose freely of the articles
stolen, even if it were more or less momentary." 61 Support for this
proposition was drawn from a decision of the Supreme Court of Spain
dated 24 January 1888 (1888 decision), which was quoted as follows:
Considerando que para que el apoderamiento de la cosa sustraida sea
determinate de la consumacion del delito de hurto es preciso que so haga
en circunstancias tales que permitan al sustractor la libre disposicion de
aquella, siquiera sea mas o menos momentaneamente, pues de otra
suerte, dado el concepto del delito de hurto, no puede decirse en realidad
This court is of the opinion that in the case at bar, in order to make the
booty subject to the control and disposal of the culprits, the articles stolen
must first be passed through the M.P. check point, but since the offense
was opportunely discovered and the articles seized after all the acts of
execution had been performed, but before the loot came under the final
control and disposal of the looters, the offense can not be said to have
been fully consummated, as it was frustrated by the timely intervention of
the guard. The offense committed, therefore, is that of frustrated theft. 63
Dio thus laid down the theory that the ability of the actor to freely dispose
of the items stolen at the time of apprehension is determinative as to
whether the theft is consummated or frustrated. This theory was applied
again by the Court of Appeals some 15 years later, in Flores, a case which
according to the division of the court that decided it, bore "no substantial
variance between the circumstances [herein] and in [Dio]." 64 Such
conclusion is borne out by the facts in Flores. The accused therein, a
checker employed by the Luzon Stevedoring Company, issued a delivery
receipt for one empty sea van to the truck driver who had loaded the
purportedly empty sea van onto his truck at the terminal of the stevedoring
company. The truck driver proceeded to show the delivery receipt to the
guard on duty at the gate of the terminal. However, the guards insisted on
inspecting the van, and discovered that the "empty" sea van had actually
contained other merchandise as well. 65The accused was prosecuted for
theft qualified by abuse of confidence, and found himself convicted of the
consummated crime. Before the Court of Appeals, accused argued in the
alternative that he was guilty only of attempted theft, but the appellate
court pointed out that there was no intervening act of spontaneous
desistance on the part of the accused that "literally frustrated the theft."
However, the Court of Appeals, explicitly relying on Dio, did find that the
accused was guilty only of frustrated, and not consummated, theft.
As noted earlier, the appellate court admitted it found "no substantial
variance" between Dio and Flores then before it. The prosecution
in Flores had sought to distinguish that case from Dio, citing a "traditional
ruling" which unfortunately was not identified in the decision itself.
However, the Court of Appeals pointed out that the said "traditional ruling"
was qualified by the words "is placed in a situation where [the actor] could
dispose of its contents at once." 66 Pouncing on this qualification, the
appellate court noted that "[o]bviously, while the truck and the van were
still within the compound, the petitioner could not have disposed of the
goods at once." At the same time, the Court of Appeals conceded that
"[t]his is entirely different from the case where a much less bulk and more
common thing as money was the object of the crime, where freedom to
dispose of or make use of it is palpably less restricted," 67 though no further
qualification was offered what the effect would have been had that
alternative circumstance been present instead.
Synthesis of the Dio and Flores rulings is in order. The determinative
characteristic as to whether the crime of theft was produced is the ability
of the actor "to freely dispose of the articles stolen, even if it were only
momentary." Such conclusion was drawn from an 1888 decision of the
Supreme Court of Spain which had pronounced that in determining
whether theft had been consummated, "es preciso que so haga en
circunstancias tales que permitan al sustractor de aquella, siquiera sea
mas o menos momentaneamente." The qualifier "siquiera sea mas o
menos momentaneamente" proves another important consideration, as it
implies that if the actor was in a capacity to freely dispose of the stolen
items before apprehension, then the theft could be deemed
consummated.
Such
circumstance
was
not
present
in
either Dio or Flores, as the stolen items in both cases were retrieved
from the actor before they could be physically extracted from the guarded
compounds from which the items were filched. However, as implied in
Flores, the character of the item stolen could lead to a different conclusion
as to whether there could have been "free disposition," as in the case
where the chattel involved was of "much less bulk and more common x x
x, [such] as money x x x."68
In his commentaries, Chief Justice Aquino makes the following pointed
observation on the import of the Dio ruling:
There is a ruling of the Court of Appeals that theft is consummated when
the thief is able to freely dispose of the stolen articles even if it were more
or less momentary. Or as stated in another case[69 ], theft is consummated
upon the voluntary and malicious taking of property belonging to another
which is realized by the material occupation of the thing whereby the thief
places it under his control and in such a situation that he could dispose of
it at once. This ruling seems to have been based on Viadas opinion that
in order the theft may be consummated, "es preciso que se haga en
circumstancias x x x [70 ]"71
In the same commentaries, Chief Justice Aquino, concluding from Adiao
and other cases, also states that "[i]n theft or robbery the crime is
consummated after the accused had material possession of the thing with
intent to appropriate the same, although his act of making use of the thing
was frustrated."72
There are at least two other Court of Appeals rulings that are at seeming
variance with the Dio and Flores rulings. People v. Batoon 73 involved an
accused who filled a container with gasoline from a petrol pump within
view of a police detective, who followed the accused onto a passenger
truck where the arrest was made. While the trial court found the accused
guilty of frustrated qualified theft, the Court of Appeals held that the
accused was guilty of consummated qualified theft, finding that "[t]he facts
of the cases of U.S. [v.] Adiao x x x and U.S. v. Sobrevilla x x x indicate
that actual taking with intent to gain is enough to consummate the crime of
theft."74
In People v. Espiritu,75 the accused had removed nine pieces of hospital
linen from a supply depot and loaded them onto a truck. However, as the
truck passed through the checkpoint, the stolen items were discovered by
the Military Police running the checkpoint. Even though those facts clearly
admit to similarity with those in Dio, the Court of Appeals held that the
accused were guilty of consummated theft, as the accused "were able to
take or get hold of the hospital linen and that the only thing that was
frustrated, which does not constitute any element of theft, is the use or
benefit that the thieves expected from the commission of the offense." 76
In pointing out the distinction between Dio and Espiritu, Reyes wryly
observes that "[w]hen the meaning of an element of a felony is
controversial, there is bound to arise different rulings as to the stage of
execution of that felony." 77 Indeed, we can discern from this survey of
jurisprudence that the state of the law insofar as frustrated theft is
concerned is muddled. It fact, given the disputed foundational basis of the
concept of frustrated theft itself, the question can even be asked whether
there is really such a crime in the first place.
IV.
The Court in 1984 did finally rule directly that an accused was guilty of
frustrated, and not consummated, theft. As we undertake this inquiry, we
have to reckon with the import of this Courts 1984 decision in Empelis v.
IAC.78
As narrated in Empelis, the owner of a coconut plantation had espied four
(4) persons in the premises of his plantation, in the act of gathering and
tying some coconuts. The accused were surprised by the owner within the
plantation as they were carrying with them the coconuts they had
gathered. The accused fled the scene, dropping the coconuts they had
seized, and were subsequently arrested after the owner reported the
incident to the police. After trial, the accused were convicted of qualified
theft, and the issue they raised on appeal was that they were guilty only of
simple theft. The Court affirmed that the theft was qualified, following
Article 310 of the Revised Penal Code, 79 but further held that the accused
were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the
theft was consummated or frustrated was raised by any of the parties.
What does appear, though, is that the disposition of that issue was
contained in only two sentences, which we reproduce in full:
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.
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.
V.
Empelis held that the crime was only frustrated because the actors "were
not able to perform all the acts of execution which should have produced
the felon as a consequence." 81 However, per Article 6 of the Revised
Penal Code, the crime is frustrated "when the offender performs all the
acts of execution," though not producing the felony as a result. If the
offender was not able to perform all the acts of execution, the crime is
attempted, provided that the non-performance was by reason of some
cause or accident other than spontaneous desistance. Empelis concludes
that the crime was
frustrated because not all of the acts of execution were performed due to
the timely arrival of the owner. However, following Article 6 of the Revised
Penal Code, these facts should elicit the conclusion that the crime was
only attempted, especially given that the acts were not performed
because of the timely arrival of the owner, and not because of
spontaneous desistance by the offenders.
For these reasons, we cannot attribute weight to Empelis as we consider
the present petition. Even if the two sentences we had cited actually
aligned with the definitions provided in Article 6 of the Revised Penal
Code, such passage bears no reflection that it is the product of the
considered evaluation of the relevant legal or jurisprudential thought.
Instead, the passage is offered as if it were sourced from an indubitable
legal premise so settled it required no further explication.
At the time our Revised Penal Code was enacted in 1930, the 1870
Codigo Penal de Espaa was then in place. The definition of the crime of
theft, as provided then, read as follows:
Son reos de hurto:
1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las
personas ni fuerza en las cosas, toman las cosas muebles ajenas sin la
voluntad de su dueo.
2. Los que encontrndose una cosa perdida y sabiendo quin es su
dueo se la apropriaren co intencin de lucro.
3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao
causado, salvo los casos previstos en los 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.
It was under the ambit of the 1870 Codigo Penal that the aforecited
Spanish Supreme Court decisions were handed down. However, the said
code would be revised again in 1932, and several times thereafter. In fact,
under the Codigo Penal Espaol de 1995, the crime of theft is now simply
defined as "[e]l que, con nimo de lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueo ser
castigado"82
Notice that in the 1870 and 1995 definition of theft in the penal code of
Spain, "la libre disposicion" of the property is not an element or a statutory
characteristic of the crime. It does appear that the principle originated and
perhaps was fostered in the realm of Spanish jurisprudence.
The oft-cited Salvador Viada adopted a question-answer form in his 1926
commentaries on the 1870 Codigo Penal de Espaa. Therein, he raised
at least three questions for the reader whether the crime of frustrated or
consummated theft had occurred. The passage cited in Dio was actually
utilized by Viada to answer the question whether frustrated or
consummated theft was committed "[e]l que en el momento mismo de
apoderarse de la cosa ajena, vindose sorprendido, la arroja al
suelo."83 Even as the answer was as stated in Dio, and was indeed
derived from the 1888 decision of the Supreme Court of Spain, that
decisions factual predicate occasioning the statement was apparently
very different from Dio, for it appears that the 1888 decision involved an
accused who was surprised by the employees of a haberdashery as he
was abstracting a layer of clothing off a mannequin, and who then
proceeded to throw away the garment as he fled.84
Nonetheless, Viada does not contest the notion of frustrated theft, and
willingly recites decisions of the Supreme Court of Spain that have held to
that effect.85 A few decades later, the esteemed Eugenio Cuello Caln
pointed out the inconsistent application by the Spanish Supreme Court
with respect to frustrated theft.
Hay frustracin cuando los reos fueron sorprendidos por las guardias
cuando llevaban los sacos de harino del carro que los conducia a otro
que tenan preparado, 22 febrero 1913; cuando el resultado no tuvo
efecto por la intervencin de la policia situada en el local donde se realiz
la sustraccin que impidi pudieran los reos disponer de lo sustrado, 30
de octubre 1950. Hay "por lo menos" frustracin, si existe apoderamiento,
pero el culpale no llega a disponer de la cosa, 12 abril 1930; hay
frustracin "muy prxima" cuando el culpable es detenido por el
perjudicado acto seguido de cometer la sustraccin, 28 febrero 1931.
Algunos fallos han considerado la existencia de frustracin cuando,
perseguido el culpable o sorprendido en el momento de llevar los efectos
hurtados, los abandona, 29 mayo 1889, 22 febrero 1913, 11 marzo 1921;
esta doctrina no es admissible, stos, conforme a lo antes expuesto, son
hurtos consumados.86
Ultimately, Cuello Caln attacked the very idea that frustrated theft is
actually possible:
theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his
act of making use of the thing was frustrated." 91
It might be argued, that the ability of the offender to freely dispose of the
property stolen delves into the concept of "taking" itself, in that there could
be no true taking until the actor obtains such degree of control over the
stolen item. But even if this were correct, the effect would be to
downgrade the crime to its attempted, and not frustrated stage, for it
would mean that not all the acts of execution have not been completed,
the "taking not having been accomplished." Perhaps this point could serve
as fertile ground for future discussion, but our concern now is whether
there is indeed a crime of frustrated theft, and such consideration proves
ultimately immaterial to that question. Moreover, such issue will not apply
to the facts of this particular case. We are satisfied beyond reasonable
doubt that the taking by the petitioner was completed in this case. With
intent to gain, he acquired physical possession of the stolen cases of
detergent for a considerable period of time that he was able to drop these
off at a spot in the parking lot, and long enough to load these onto a
taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is
deemed complete from the moment the offender gains possession of the
thing, even if he has no opportunity to dispose of the same. 92 And long
ago, we asserted in People v. Avila:93
x x x [T]he most fundamental notion in the crime of theft is the taking of
the thing to be appropriated into the physical power of the thief, which
idea is qualified by other conditions, such as that the taking must be
effectedanimo lucrandi and without the consent of the owner; and it will be
here noted that the definition does not require that the taking should be
effected against the will of the owner but merely that it should be without
his consent, a distinction of no slight importance. 94
Insofar as we consider the present question, "unlawful taking" is most
material in this respect. Unlawful taking, which is the deprivation of ones
personal property, is the element which produces the felony in its
consummated stage. At the same time, without unlawful taking as an act
of execution, the offense could only be attempted theft, if at all.
With these considerations, we can only conclude that under Article 308 of
the Revised Penal Code, theft cannot have a frustrated stage. Theft can
only be attempted or consummated.
Neither Dio nor Flores can convince us otherwise. Both fail to consider
that once the offenders therein obtained possession over the stolen items,
the effect of the felony has been produced as there has been deprivation
of property. The presumed inability of the offenders to freely dispose of the
stolen property does not negate the fact that the owners have already
been deprived of their right to possession upon the completion of the
taking.
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.
Moreover, as is evident in this case, the adoption of the rule that the
inability of the offender to freely dispose of the stolen property frustrates
the theft would introduce a convenient defense for the accused which
does not reflect any legislated intent, 95 since the Court would have carved
a viable means for offenders to seek a mitigated penalty under applied
circumstances that do not admit of easy classification. It is difficult to
formulate definite standards as to when a stolen item is susceptible to free
disposal by the thief. Would this depend on the psychological belief of the
offender at the time of the commission of the crime, as implied in Dio?
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.
All these complications will make us lose sight of the fact that beneath all
the colorful detail, the owner was indeed deprived of property by one who
intended to produce such deprivation for reasons of gain. For such will
remain the presumed fact if frustrated theft were recognized, for therein,
all of the acts of execution, including the taking, have been completed. If
the facts establish the non-completion of the taking due to these peculiar
circumstances, the effect could be to downgrade the crime to the
attempted stage, as not all of the acts of execution have been performed.
But once all these acts have been executed, the taking has been
completed, causing the unlawful deprivation of property, and ultimately the
consummation of the theft.
Maybe the Dio/Flores rulings are, in some degree, grounded in common
sense. Yet they do not align with the legislated framework of the crime of
theft. The Revised Penal Code provisions on theft have not been
designed in such fashion as to accommodate said rulings. Again, there is
no language in Article 308 that expressly or impliedly allows that the "free
disposition of the items stolen" is in any way determinative of whether the
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING
Associate Justice
ANGELINA SANDOVALGUTIERREZ
Associate Justice
MA. ALICIA AUSTRIAMARTINEZ
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
PRESBITERO J. VELASCO,
CONSUELO YNARESSANTIAGO
Associate Justice
ANTONIO T. CARPIO
Associate Justice
RENATO C. CORONA
Associate Justice
ADOLFO S. AZCUNA
Associate Justice
CANCIO C. GARCIA
Associate Justice
ANTONIO EDUARDO B.
JR.
Associate Justice
NACHURA
Associate Justice
C E R T I F I C AT I O N
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified
that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of
the Court.
REYNATO S. PUNO
Chief Justice
Footnotes
1
Id. at 22.
10
In any event, from the time this case had been elevated on appeal
to the Court of Appeals, no question was anymore raised on the
version of facts presented by the prosecution. Thus, any issue
relative to these four (4) other suspects should bear no effect in
the present consideration of the case.
11
13
A person who was neither among the four (4) other suspects
(see note 6) nor a witness for the defense.
26
Id. at at 13-14.
27
28
29
See e.g., L.B. Reyes, I The Revised Penal Code: Criminal Law
(13th ed., 2001), at 112-113 and R. Aquino, I The Revised Penal
Code (1997 ed.), at 122.
30
31
14
Rollo, p. 25.
15
16
17
Id. at 474.
34
18
Id. at 484.
35
19
20
Rollo, p. 25.
32
33
21
37
22
38
23
39
24
Id. at 12.
25
Id. at 9.
People v. Moreno, 356 Phil. 231, 248 (1998) citing Black's Law
Dictionary, 5th ed., p. 889.
Jariol, Jr. v. Sandiganbayan, Nos. L-52095-52116, 13 August
1990, 188 SCRA 475, 490.
City of Chicago v. Morales, 527 U.S. 41 (1999) cited in
Separate Opinion, J.Tinga, Romualdez v. Sandiganbayan, G.R.
No. 152259, 29 July 2004, 435 SCRA 371, 400.
40
49
41
See also Revised Penal Code, Art. 310, which qualifies theft
with a penalty two degrees higher "if committed by a domestic
servant, or with grave abuse of confidence, or if the property
stolen is motor vehicle, mail matter or large cattle or consists of
coconuts taken from the premises of the plantation or fish taken
from a fishpond or fishery, or if property is taken on the occasion
of fire, earthquake, typhoon, volcanic eruption, or any other
calamity, vehicular accident or civil disturbance."
50
42
45
52
54
Id. at 755.
55
Id.
56
Id. at 755-756.
57
Supra note 4.
58
59
Id.
60
61
Id.
62
Id.
63
Id. at 3451.
64
Id. at 615.
Id. citing Inst. 4, 1, 1.
46
48
65
Id. at 836. The Court of Appeals in Flores did not identify the
character of these stolen merchandise.
66
Id. at 841.
67
Id.
80
68
81
Id.
69
82
70
71
72
Id. at 110.
73
74
75
76
78
Supra note 5.
79
"Revised Penal Code, Art. 310 states that the crime of theft
shall "be punished by the penalties next higher by two degrees
than those respectively expressed in the next preceding article x x
x if the property stolen x x x consists of coconuts taken from the
premises of a plantation, x x x." Thus, the stealing of coconuts
when they are still in the tree or deposited on the ground within
the premises is qualified theft. When the coconuts are stolen in
any other place, it is simple theft. Stated differently, if the coconuts
were taken in front of a house along the highway outside the
coconut plantation, it would be simple theft only.
[In the case at bar, petitioners were seen carrying away fifty
coconuts while they were still in the premises of the plantation.
84
86
The facts of the case, as found by the RTC and the CA, are as follows:
At around 9:00 o'clock in the evening of August 15, 1990, Crisaldo Alberto
(Crisaldo) and his cousin, Allan Perez (Allan), were walking to their
respective homes in Kilometer 7, Del Monte, Samal, Davao after spending
time at the house of Crisaldo's father. Since the pavement going to
Crisaldo's house followed a narrow pathway along the local shrubs
called banganga, Allan walked ahead of Crisaldo at a distance of about
three (3) meters.4 Suddenly, Crisaldo felt the piercing thrust of a bladed
weapon on his back, which caused him to cry out in pain. He made a
quick turnaround and saw his attacker, petitioner, also known as "Iyo
(Uncle) Kingkoy." Petitioner stabbed Crisaldo again but only hit the latter's
left arm.5
When Allan heard Crisaldo's outcry, he rushed to Crisaldo's side and said,
"Iyo Kingkoy (Uncle Kingkoy), why did you stab Saldo?" which caused
petitioner to run away.6 Allan then brought Crisaldo to his father's house
where Crisaldo's wounds were wrapped in a blanket. Crisaldo was then
brought to the Peaplata Hospital where he was given first aid and then
transferred to the Davao Medical Center where he stayed for three weeks
to recuperate from his wounds.7 The attending physician, Santiago
Aquino, issued a Medical Certificate dated September 4, 1990, with the
following findings:
1. Stab wound (R) scapular area (Medial border) at level 5-7th ICS (L)
arm Medial aspect M3rd
SO ORDERED.13
Contrary to law.9
During his arraignment on June 25, 1991, petitioner, with the assistance of
counsel, pleaded "not guilty."10
Petitioner's defense consisted mainly of denial. He claims that at 7:00
o'clock in the morning of August 15, 1990, he went to Anonang, within the
Municipality of Kaputian, and harvested coconuts by climbing the coconut
trees; that he went back home at 4:30 in the afternoon and he slept at
8:00 o'clock in the evening; that while he was sleeping, his wife awakened
him because Salvador Epifanio (Salvador) was asking for help, as
somebody was hacked, and he went to the place of incident with
Salvador; that he found out that Crisaldo was already wrapped in cloth
and he asked Crisaldo who was responsible for stabbing him, but he did
not answer; that they loaded Crisaldo in the jeep to take him to the nearby
hospital; that he and Salvador took a ride with Crisaldo up to Del Monte
where the two of them alighted and reported the incident to
the barangay captain; that the following morning, he went to Anonang to
harvest coconuts; that at around 1:00 o'clock in the afternoon when he
arrived home, policemen Barraga and Labrador were in his house and
told him that he was the suspect in the stabbing incident; that he was
detained but he was not investigated anymore and was ordered to go
home.11
On July 5, 1994, the RTC rendered its Decision 12 convicting the petitioner,
the dispositive portion of which reads:
IN THE LIGHT OF THE FOREGOING, finding the accused, Leonidas
Epifanio y Lazaro guilty beyond reasonable doubt of the crime of
Frustrated Murder punishable under Article 248 in relation to Article 6 of
the Revised Penal Code, the Court hereby sentence this accused to an
indeterminate imprisonment of SIX (6) YEARS and ONE (1) DAY of
prision mayor as minimum to TEN (10) YEARS of prision mayor as
maximum together with the accessory penalties provided by law, and to
pay the costs.
Accused is hereby ordered to indemnify Crisaldo Alberto the sum of
P6,000.00 by way of damages.
Petitioner filed the present petition raising a sole issue for resolution, to
wit:
WHETHER THE GUILT OF THE PETITIONER FOR THE CRIME OF
FRUSTRATED MURDER WAS PROVEN BEYOND REASONABLE
DOUBT.18
Petitioner does not seek the reversal of his conviction but only that it be
for the lesser offense of attempted murder. He contends that there is no
evidence that the injuries sustained by Crisaldo were life-threatening or
would have caused his death had it not been for timely medical
intervention since the medical certificate only stated that the healing time
of the wounds sustained by Crisaldo was "15-30 days barring
complication", with no notation or testimony of the attending physician that
any of the injuries was life-threatening.
The Office of the Solicitor General (OSG), on the other hand, contends
that the failure to present the doctor to testify on the nature of the wounds
suffered by Crisaldo was not raised as an issue in the RTC; that petitioner
is now barred from raising it in the present petition for review without
offending the basic rules of fair play, justice and due process; that
petitioner did not object to the admissibility of the medical certificate when
it was offered in evidence; that the crime is frustrated murder since
petitioner performed "all the acts of execution"; that the three-week length
of stay in the hospital of Crisaldo is not determinative of whether or not the
wounds are fatal.
The petition is impressed with merit.
The non-presentation of the doctor to testify on the nature of the wounds,
while not raised as an issue in the RTC, does not bar the petitioner from
raising it on appeal. It is a well-settled rule that an appeal in a criminal
case throws the whole case wide open for review and the reviewing
tribunal can correct errors, though unassigned in the appealed judgment,
or even reverse the trial courts decision on the basis of grounds other
than those that the parties raised as errors.19
It must be stressed that it is not the gravity of the wounds alone which
determines whether a felony is attempted or frustrated, but whether the
assailant had passed the subjective phase in the commission of the
offense.
In the leading case of United States v. Eduave,20 Justice Moreland,
speaking for the Court, distinguished an attempted from a frustrated
felony. He said that to be an attempted crime, the purpose of the offender
must be thwarted by a foreign force or agency which intervenes and
compels him to stop prior to the moment when he has performed all the
acts which should produce the crime as a consequence, which act it is his
intention to perform.21
The subjective phase in the commission of a crime is that portion of the
acts constituting the crime included between the act which begins the
commission of the crime and the last act performed by the offender which,
with prior acts, should result in the consummated crime. Thereafter, the
phase is objective.22
In case of an attempted crime, the offender never passes the subjective
phase in the commission of the crime. The offender does not arrive at the
point of performing all of the acts of execution which should produce the
crime. He is stopped short of that point by some cause apart from his
voluntary desistance.23
On the other hand, a crime is frustrated when the offender has performed
all the acts of execution which should result in the consummation of the
crime. The offender has passed the subjective phase in the commission of
the crime. Subjectively, the crime is complete. Nothing interrupted the
offender while passing through the subjective phase. He did all that was
necessary to consummate the crime; however, the crime is not
consummated by reason of the intervention of causes independent of the
will of the offender.24
In homicide cases, the offender is said to have performed all the acts of
execution if the wound inflicted on the victim is mortal and could cause the
death of the victim barring medical intervention or attendance. 25 If one
inflicts physical injuries on another but the latter survives, the crime
committed is either consummated physical injuries, if the offender had no
intention to kill the victim; or frustrated or attempted homicide or frustrated
murder or attempted murder if the offender intends to kill the victim. 26
Intent to kill may be proved by evidence of: (a) motive; (b) the nature or
number of weapons used in the commission of the crime; (c) the nature
and number of wounds inflicted on the victim; (d) the manner the crime
was committed; and (e) words uttered by the offender at the time the
injuries were inflicted by him on the victim.27
In the present case, the intent to kill is very evident and was established
beyond reasonable doubt through the unwavering testimony of Crisaldo
on the manner of execution of the attack as well as the number of wounds
he sustained. Crisaldo was stabbed from behind by petitioner. When
Crisaldo turned around, petitioner continued his assault, hitting Crisaldo
on the left arm as the latter tried to defend himself. The treacherous
manner in which petitioner perpetrated the crime is shown not only by the
sudden and unexpected attack upon the unsuspecting victim but also by
the deliberate manner in which the assault was perpetrated. 28
Nonetheless, petitioner failed to perform all the acts of execution, because
Allan came to the aid of Crisaldo and petitioner was forced to scamper
away. He did not voluntarily desist from stabbing Crisaldo, but he had to
stop stabbing when Allan rushed to help Crisaldo and recognized
petitioner. Thus, the subjective phase of the crime had not been
completed.
Moreover, the prosecution failed to present testimonial evidence on the
nature of the wounds sustained by Crisaldo. The Court has discussed the
importance of ascertaining the degree of injury sustained by a victim
inPeople v. Matyaong,29 thus:
In considering the extent of injury done, account must be taken of the
injury to the function of the various organs, and also the danger to life. A
division into mortal and nonmortal wounds, if it could be made, would be
very desirable; but the unexpected complications and the various
extraneous causes which give gravity to the simplest cases, and, on the
other hand, the favorable termination of some injuries apparently the most
dangerous, render any such classification impracticable. The general
classification into slight, severe, dangerous, and mortal wounds may be
used, but the possibility of the slight wound terminating with the loss of the
persons life, and the apparently mortal ending with only a slight
impairment of some function, must always be kept in mind. x x x
The danger to life of any wound is dependent upon a number of factors:
the extent of the injury, the form of the wound, the region of the body
affected, the blood vessels, nerves, or organs involved, the entrance of
disease-producing bacteria or other organisms into the wound, the age
and constitution of the person injured, and the opportunities for
administering proper surgical treatment. x x x30
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MINITA V. CHICO-NAZARIO
Associate Justice
ANTONIO EDUARDO B.
NACHURA
Associate Justice
AT T E S TAT I O N
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of
the Courts Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons attestation, it is hereby certified that the conclusions in the
above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
Footnotes
1
20
21
Id. at 212.
22
Id. at 213.
23
24
Ibid.
CA rollo, p. 149.
TSN, August 20, 1991, Testimony of Crisaldo Alberto, pp. 6, 1213; TSN, August 21, 1991, Testimony of Crisaldo Alberto, p.
8;TSN, August 21, 1991, Testimony of Allan Perez, pp. 19-20.
6
25
27
28
10
Id. at 69.
11
30
12
13
Id. at 154.
31
14
CA rollo, p. 53.
15
Id. at 120.
33
16
Id. at 130.
17
Id. at 149.
18
Rollo, p. 17.
19
August 3, 1935
It is our opinion that the attempt to commit an offense which the Penal
Code punishes is that which has a logical relation to a particular, concrete
offense; that, which is the beginning of the execution of the offense by
overt acts of the perpetrator, leading directly to its realization and
consummation. The attempt to commit an indeterminate offense,
inasmuch as its nature in relation to its objective is ambiguous, is not a
juridical fact from the standpoint of the Penal Code. There is no doubt that
in the case at bar it was the intention of the accused to enter Tan Yu's
store by means of violence, passing through the opening which he had
started to make on the wall, in order to commit an offense which, due to
the timely arrival of policeman Tomambing, did not develop beyond the
first steps of its execution. But it is not sufficient, for the purpose of
imposing penal sanction, that an act objectively performed constitute a
mere beginning of execution; it is necessary to establish its unavoidable
connection, like the logical and natural relation of the cause and its effect,
with the deed which, upon its consummation, will develop into one of the
offenses defined and punished by the Code; it is necessary to prove that
said beginning of execution, if carried to its complete termination following
its natural course, without being frustrated by external obstacles nor by
the voluntary desistance of the perpetrator, will logically and necessarily
ripen into a concrete offense. Thus, in case of robbery, in order that the
simple act of entering by means of force or violence another person's
dwelling may be considered an attempt to commit this offense, it must be
shown that the offender clearly intended to take possession, for the
purpose of gain, of some personal property belonging to another. In the
instant case, there is nothing in the record from which such purpose of the
accused may reasonably be inferred. From the fact established and stated
in the decision, that the accused on the day in question was making an
opening by means of an iron bar on the wall of Tan Yu's store, it may only
be inferred as a logical conclusion that his evident intention was to enter
by means of force said store against the will of its owner. That his final
objective, once he succeeded in entering the store, was to rob, to cause
physical injury to the inmates, or to commit any other offense, there is
nothing in the record to justify a concrete finding.1avvphil.et
It must be borne in mind (I Groizard, p. 99) that in offenses not
consummated, as the material damage is wanting, the nature of
the action intended (accion fin) cannot exactly be ascertained, but
the same must be inferred from the nature of the acts executed
(accion medio). Hence, the necessity that these acts be such that
by their very nature, by the facts to which they are related, by the
circumstances of the persons performing the same, and by the
things connected therewith, they must show without any doubt,
that they are aimed at the consummation of a crime. Acts
susceptible of double interpretation , that is, in favor as well as
against the culprit, and which show an innocent as well as a
punishable act, must not and can not furnish grounds by
themselves for attempted nor frustrated crimes. The relation
existing between the facts submitted for appreciation and the
offense which said facts are supposed to produce must be direct;
the intention must be ascertained from the facts and therefore it is
necessary, in order to avoid regrettable instances of injustice, that
the mind be able to directly infer from them the intention of the
perpetrator to cause a particular injury. This must have been the
intention of the legislator in requiring that in order for an attempt to
exist, the offender must commence the commission of the felony
directly by overt acts, that is to say, that the acts performed must
be such that, without the intent to commit an offense, they would
be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt
acts leading to the commission of the offense, are not punished except
when they are aimed directly to its execution, and therefore they must
have an immediate and necessary relation to the offense."
Considering says the Supreme Court of Spain in its decision of
March 21, 1892 that in order to declare that such and such
overt acts constitute an attempted offense it is necessary that
their objective be known and established, or that said acts be of
such nature that they themselves should obviously disclose the
criminal objective necessarily intended, said objective and finality
to serve as ground for the designation of the offense: . . . .
In view of the foregoing, we are of the opinion, and so hold that the fact
under consideration does not constitute attempted robbery but attempted
trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and
decisions of the Supreme Court of Spain therein cited). Under article 280
of the Revised Penal Code, this offense is committed when a private
person shall enter the dwelling of another against the latter's will. The
accused may be convicted and sentenced for an attempt to commit this
offense in accordance with the evidence and the following allegation
contained in the information: "... the accused armed with an iron bar
forced the wall of said store by breaking a board and unfastening another
for the purpose of entering said store ... and that the accused did not
succeed in entering the store due to the presence of the policeman on
beat Jose Tomambing, who upon hearing the noise produced by the
breaking of the wall, promptly approached the accused ... ." Under the
circumstances of this case the prohibition of the owner or inmate is
presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S.vs. Silvano, 31 Phil., 509'
U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs.
Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the
accused must be taken into consideration the aggravating circumstances
of nighttime and former convictions, inasmuch as the record shows that
several final judgments for robbery and theft have been rendered against
him and in his favor, the mitigating circumstance of lack of instruction.
The breaking of the wall should not be taken into consideration as an
aggravating circumstance inasmuch as this is the very fact which in this
case constitutes the offense of attempted trespass to dwelling.
The penalty provided by the Revised Penal Code for the consummated
offense of trespass to dwelling, if committed with force, is prision
correccional in its medium and maximum periods and a fine not exceeding
P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted
trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its
minimum and medium periods. Because of the presence of two
aggravating circumstances and one mitigating circumstance the penalty
must be imposed in its maximum period. Pursuant to article 29 of the
same Code, the accused is not entitled to credit for one-half of his
preventive imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is
hereby held guilty of attempted trespass to dwelling, committed by means
of force, with the aforesaid aggravating and mitigating circumstances and
sentenced to three months and one day of arresto mayor, with the
accessory penalties thereof and to pay the costs.
Avancea, C.J., Abad Santos, Hull, and Vickers, JJ., concur.
Borinaga had been heard to tell a companion: "I will stab this Mooney,
who is an American brute." After the attack, Borinaga was also heard to
say that he did not hit the back of Mooney but only the back of the chair.
But Borinaga was persistent in his endeavor, and hardly ten minutes after
the first attack, he returned, knife in hand, to renew it, but was unable to
do so because Mooney and Perpetua were then on their guard and turned
a flashlight on Borinaga, frightening him away. Again the same night,
Borinaga was overheard stating that he had missed his mark and was
unable to give another blow because of the flashlight. The point of the
knife was subsequently, on examination of the chair, found embedded in
it.
The foregoing occurrences gave rise to the prosecution of Basilio
Borinaga in the Court of First Instance of Leyte for the crime of frustrated
murder. The defense was alibi, which was not given credence. The
accused was convicted as charged, by Judge Ortiz, who sentenced him to
fourteen years, eight months, and one day of imprisonment, reclusion
temporal, with the accessory penalties and the costs.
the failure of the attack arose by reason of forces independent of the will
of the perpetrator. The assailant voluntarily desisted from further acts.
What is known as the subjective phase of the criminal act was passed. (U.
S. vs. Eduave [1917], 36 Phil., 209; People vs. Mabugat [1926], 51 Phil.,
967.)
No superfine distinctions need be drawn in favor of that accused to
establish a lesser crime than that of frustrated murder, for the facts
disclose a wanton disregard of the sanctity of human life fully meriting the
penalty imposed in the trial court.
Based on foregoing considerations, the judgment appealed from will be
affirmed, with the costs of this instance against the appellant.
Avancea, C.J., Villamor, Ostrand, Johns and Romualdez, JJ., concur.
Separate Opinions
VILLA-REAL, J., dissenting:
The homicidal intent of the accused was plainly evidenced. The attendant
circumstances conclusively establish that murder was in the heart and
mind of the accused. More than mere menaces took place. The aggressor
stated his purpose, which was to kill, and apologized to his friends for not
accomplishing that purpose. A deadly weapon was used. The blow was
directed treacherously toward vital organs of the victim. The means used
were entirely suitable for accomplishment. The crime should, therefore, be
qualified as murder because of the presence of the circumstance of
treachery.
The only debatable question, not referred to in the briefs, but which must
be decided in order to dispose of the appeal, is: Do the facts constitute
frustrated murder or attempted murder within the meaning of article 3 of
the Penal Code? Although no exact counterpart to the facts at bar has
been found either in Spanish or Philippine jurisprudence, a majority of the
court answer the question propounded by stating that the crime committed
was that of frustrated murder. This is true notwithstanding the admitted
fact that Mooney was not injured in the least.
The essential condition of a frustrated crime, that the author perform all
the acts of execution, attended the attack. Nothing remained to be done to
accomplish the work of the assailant completely. The cause resulting in
On the evening of the same day, Mooney was in the store of a neighbor
by the name of Perpetua Najarro. He had taken a seat on a chair in front
of Perpetua, his back being to the window. Mooney had not been there
long when Perpetua saw Basilio Borinaga from the window strike with a
knife at Mooney, but fortunately for the latter, the knife lodged in the back
of the chair on which Mooney was seated. Mooney fell from the chair as a
result of the force of the blow, but was not injured. Borinaga ran away
towards the market place. Before this occurred, it should be stated that
Borinaga had been heard to tell a companion: "I will stab this Mooney,
who is an American brute." After the attack, Borinaga was also heard to
say that he did not hit the back of Mooney but only the back of the chair.
But Borinaga was persistent in his endeavor, and hardly ten minutes after
the first attack, he returned, knife in hand, to renew it, but was unable to
do so because Mooney and Perpetua were then on their guard and turned
a flashlight on Borinaga, frightening him away. Again that same night,
Borinaga was overheard stating that he had missed his mark and was
unable to give another blow because of the flashlight. The point of the
knife was subsequently, on examination of the chair, found embedded in
it.
Since the facts constituting frustrated felony and those constituting an
attempt to commit felony are integral parts of those constituting
consummated felony, it becomes important to know what facts would have
been necessary in order that the case at bar might have been a
consummated murder, so that we may determine whether the facts
proved during the trial constitute frustrated murder or simply an attempt to
commit murder.
In order that the crime committed by the defendant-appellant might have
been a consummated murder it would have been necessary for him to
have inflicted a deadly wound upon a vital spot of the body of Mooney,
with treachery, as a result of which he should have died.
Since according to the definition given by the Code a frustrated felony is
committed "when the offender performs all the acts of execution which
should produce the felony as a consequence, but which, nevertheless, do
not produce it by reason of causes independent of the will of the
perpetrator" let us examine the facts of record to find out whether the said
defendant-appellant has performed all the acts of execution which should
produce the murder of Mooney as a consequence. The prisoner at bar,
intending to kill Mooney, approached him stealthily from behind and made
movement with his right hand to strike him in the back with a deadly knife,
but the blow, instead of reaching the spot intended, landed on the frame of
the back of the chair on which Mooney was sitting at the time and did not
cause the slightest physical injury on the latter. The acts of execution
performed by the defendant-appellant did not produce the death of
Mooney as a consequence nor could they have produced it because the
blow did not reach his body; therefore the culprit did not perform all the
acts of execution which should produce the felony. There was lacking the
infliction of the deadly wound upon a vital spot of the body of Mooney.
It is true that the frame of the back of the chair stood between the deadly
knife and the back of Mooney; but what it prevented was the wounding of
said Mooney in the back and not his death, had he been wounded. It is
the preventing of death by causes independent of the will of the
perpetrator, after all the acts of execution which should produce the felony
as a consequence had been performed, that constitutes frustrated felony,
according to the law, and not the preventing of the performance of all the
acts of execution which constitute the felony, as in the present case. The
interference of the frame of the back of the chair which prevented the
defendant-appellant from wounding Mooney in the back with a deadly
knife, made his acts constitute an attempt to commit murder; for he had
commenced the commission of the felony directly by overt acts, and did
not perform all the acts of execution which constitute the felony by reason
of a cause or accident other than his own voluntary desistance.
The foregoing considerations force us to the conclusion that the facts
alleged in the information and proved during the trial are not sufficient to
constitute the crime of frustrated murder, but simply the crime of an
attempt to commit murder.
Johnson and Street, JJ., concur.
EN BANC
G.R. Nos. L-39303-39305
In the third case, that is, No. 6860, wherein the court a quo held that the
crime committed was simply that of discharge of firearm, not frustrated
murder, the appellant Marcelo Kalalo was sentenced to one year, eight
months and twenty-one days of prision correccional and to pay the
proportionate part of the costs of the proceedings. Felipe Kalalo and Juan
Kalalo, as well as their co-accused Fausta and Alipia Abrenica, Gregorio
Ramos and Alejandro Garcia, were acquitted of the charges therein.
The accused in the aforesaid three cases appealed from their respective
sentences assigning six alleged errors as committed by the trial court, all
of which may be discussed jointly in view of the fact that they raise only
one question, to wit: whether or not said sentences are in accordance with
law.
A careful study and examination of the evidence presented disclose the
following facts: Prior to October 1, 1932, the date of the commission of the
three crimes alleged in the three informations which gave rise to the
aforesaid three cases Nos. 6858, 6859 and 6860, the appellant Marcelo
Kalalo or Calalo and Isabela Holgado or Olgado, the latter being the sister
of the deceased Arcadio Holgado and a cousin of the other deceased
Marcelino Panaligan, had a litigation over a parcel of land situated in the
barrio of Calumpang of the municipality of San Luis, Province of
Batangas. On September 28, 1931, and again on December 8th of the
same year, Marcelo Kalalo filed a complaint against the said woman in the
Court of First Instance of Batangas. By virtue of a motion filed by his
opponent Isabela Holgado, his first complaint was dismissed on
December 7, 1931, and his second complaint was likewise dismissed on
February 5, 1932. Marcelo Kalalo cultivated the land in question during
the agricultural years 1931 and 1932, but when harvest time came Isabela
Holgado reaped all that had been planted thereon.
On October 1, 1932, Isabela Holgado and her brother Arcadio Holgado,
one of the deceased, decided to order the aforesaid land plowed, and
employed several laborers for that purpose. These men, together with
Arcadio Holgado, went to the said land early that day, but Marcelo Kalalo,
who had been informed thereof, proceeded to the place accompanied by
his brothers Felipe and Juan Kalalo, his brother-in-law Gregorio Ramos
and by Alejandro Garcia, who were later followed by Fausta Abrenica and
Alipia Abrenica, mother and aunt, respectively, of the first three.
The first five were all armed with bolos. Upon their arrival at the said land,
they ordered those who were plowing it by request of Isabela and Arcadio
Holgado, to stop, which they did in view of the threatening attitude of
those who gave them said order.1vvphi1.ne+
Shortly after nine o'clock on the morning of the same day, Isabela
Holgado, Maria Gutierrez and Hilarion Holgado arrived at the place with
food for the laborers. Before the men resumed their work, they were given
their food and not long after they had finished eating, Marcelino
Panaligan, cousin of said Isabela and Arcadio, likewise arrived. Having
been informed of the cause of the suspension of the work, Marcelino
Panaligan ordered said Arcadio and the other laborers to again hitch their
respective carabaos to continue the work already began. At this juncture,
the appellant Marcelo Kalalo approached Arcadio, while the appellants
Felipe Kalalo, Juan Kalalo and Gregorio Ramos, in turn, approached
Marcelino Panaligan. At a remark from Fausta Abrenica, mother of the
Kalalos, about as follows, "what is detaining you?" they all simultaneously
struck with their bolos, the appellant Marcelo Kalalo slashing Arcadio
Holgado, while the appellants Felipe Kalalo, Juan Kalalo and Gregorio
Ramos slashed Marcelino Panaligan, inflicting upon them the wounds
enumerated and described in the medical certificates Exhibits I and H.
Arcadio Holgado and Marcelino Panaligan died instantly from the wounds
received by them in the presence of Isabela Holgado and Maria Gutierrez,
not to mention the accused. The plowmen hired by Arcadio and Isabela all
ran away.
Arcadio Holgado's body bore the following six wounds, to wit:
1. A cut wound on the ulnar side of right arm near the wrist,
cutting the ulnar bone completely and, the radius partially.
2. A cut wound on the anterior upper portion of the left arm
measuring about 7 cm. long and 5 cm. wide extending to the bone
and cutting the deltoid muscle across.
3. A penetrating wound on the left chest just below the clavicle
going thru the first intercostal space measuring about 8 cm. long
and 2 cm wide.
4. A wound on the left side of the back about 20 cm. long following
the 10th intercostal space and injuring the lung, diaphragm,
stomach and large intestine.
5. A small superficial cut wound about 2 cm. long and cm. wide
situated on the inner side of the right scapula.
10. A cut wound about 7 cm. long and 3 cm. wide situated near
and almost parallel to the inner border of the right scapula.
11. A wound on the back of the head, oval in shape, about 10 cm.
long and 5 cm. wide from which a flap of scalp was removed.
12. A wound across the back and left side of the neck about 12
cm. long and 7 cm. deep cutting the vertebral column together
with the great arteries and veins on the left side of the neck.
2. A cut wound on the head just above the forehead about 6 cm.
long and 4 cm. wide lifting a portion of scalp as a flap.
3. A cut wound on the left side of the head measuring about 7 cm.
long and 2 cm. wide.
4. A cut wound about 12 cm. long across the face just below the
eyes extending from one cheek bone to the other, perforating the
left antrum and cutting the nasal bone.
5. A cut wound on the anterior portion of the left forearm
extending to the bone with a flap of skin and muscle which
measures about 12 cm long and 6 cm. wide.
6. A cut wound across the dorsal side of the right hand about 5
cm. long and 2 cm. wide cutting the bones of the hand.
7. A superficial wound about 6 cm. long and 4 cm. wide and 2 cm.
deep situated in the left axilla.
8. A cut wound about 6 cm. long and 2 cm. wide situated over the
left scapula.
9. A cut wound on the right shoulder about 6 cm. long passing
near the inner angle of the scapula cutting the muscles of the
shoulder.
13. A wound about 15 cm. long and 4 cm. wide on the left side of
the back.
14. A small wound on the left thumb from which a portion of the
bone and other tissues were removed. (Exhibit H.)
The above detailed description of the wounds just enumerated discloses
and there is nothing of record to contradict it all of them were caused
by a sharp instrument or instruments.
After Arcadio Holgado and Marcelino Panaligan had fallen to the ground
dead, the appellant Marcelo Kalalo took from its holster on the belt of
Panaligans' body, the revolver which the deceased carried, and fired four
shots at Hilarion Holgado who was then fleeing from the scene inorder to
save his own life.
The appellants attempted to prove that the fight, which resulted in the
death of the two deceased, was provoked by Marcelino Panaligan who
fired a shot at Marcelo Kalalo upon seeing the latter's determination to
prevent Arcadio Holgado and his men from plowing the land in question.
No such firing, however, can be taken into consideration, in the first place,
because of the existence of competent evidence such as the testimony of
Maria Gutierrez, who is a disinterested witness, which corroborates that of
Isabela Holgado in all its details, showing that the said deceased was
already lying prostrate and lifeless on the ground when the appellant
Marcelo Kalalo approached him to take his revolver for the purpose of
using it, as he in fact did, against Hilarion Holgado; in the second place,
because the assault and aggression of the said appellant were not
directed against said Marcelino Panaligan but exclusively against Arcadio
Holgado, the evidence of record on this point being overwhelming, and if
his claim were true, he naturally should have directed his attack at the
person who openly made an attempt against his life; in the third place,
because the evidence shows without question that Panaligan was an
expert shot with a revolver, and among the eight wounds that the
appellant Marcelo Kalalo received (Exhibit 3), not one appears to have
been caused by bullet, and similarly, none of the other appellants received
any wound that might, in any way, suggest the possibility of having been
caused by bullet; and finally, because the fact that he and his coappellants, together with those who had been charged jointly with them,
had gone to the place of the crime armed with bolos, determined at any
cost to prevent the Holgados from plowing the land in dispute, cannot but
disclose not only their determination to resort to violence or something
worse, but that they did not need any provocation in order to carry out
their intent.
They likewise attempted to prove that the appellant Marcelo Kalalo alone
fought against the deceased Marcelino Panaligan and Arcadio Holgado
and inflicted upon them the wounds which resulted in their death, said
appellant testifying that he was compelled to do so in defense of his own
life because both of the deceased attacked him first, the former with a
revolver, firing three shots at him, and the latter with a bolo. For the same
reasons hereinbefore stated, such defense of the appellants cannot be
given credit. One man alone could not have inflicted on the two deceased
their multiple wounds, particularly when it is borne in mind that one of
them was better armed, because he carried a revolver, and that he was
furthermore an expert shot and scarcely two arm-lengths from Kalalo,
according to the latter's own testimony. The two witnesses for the
defense, who witnessed the crime very closely, refuted such allegation
saying that Marcelo Kalalo alone fought the deceased Arcadio Holgado
and that the other three appellants went after the other deceased. It is true
that Arcadio Holgado also used his bolo to defend himself from Marcelo
Kalalo's aggression but it is no less true that five of the principal wounds
of the other deceased Marcelino Panaligan were inflicted on him from
behind, inasmuch as according to Exhibit H they were all found at the
back of the head, on the neck and on his back. Neither is it less true that
all the wounds of the appellant Marcelo Kalalo were inflicted on him from
the front, which fact shows that it was not he alone who inflicted the
wounds on the two deceased because had he been alone Panaligan
would not have exposed his back to be thus attacked from behind,
inasmuch as he was armed with a revolver, which circumstance
to those of the present case, a revolver is as effective as, if not more than
three bolos. For this reason, this court is of the opinion that the acts
established in cases Nos. 6858 and 6859 (G.R. Nos. L-39303 and 39304,
respectively), merely constitute two homicides, with no modifying
circumstance to be taken into consideration because none has been
proved.
It certainly is a fact of record that the said three appellants Felipe Kalalo,
Juan Kalalo and Gregorio Ramos were not arrested until after several
days, because they had been hiding or, at least, absenting themselves
from their homes.
As to case No. 6860 (G.R. No. 39305), the evidence shows that Marcelo
Kalalo fired four successive shots at Hilarion Holgado while the latter was
fleeing from the scene of the crime in order to be out of reach of the
appellants and their companions and save his own life. The fact that the
said appellant, not having contended himself with firing only once, fired
said successive shots at Hilarion Holgado, added to the circumstance that
immediately before doing so he and his co-appellants had already killed
Arcadio Holgado and Marcelino Panaligan, cousin and brother-in-law,
respectively, of the former, shows that he was then bent on killing said
Hilarion Holgado. He performed everything necessary on his pat to
commit the crime that he determined to commit but he failed by reason of
causes independent of his will, either because of his poor aim or because
his intended victim succeeded in dodging the shots, none of which found
its mark. The acts thus committed by the said appellant Marcelo Kalalo
constitute attempted homicide with no modifying circumstance to be taken
into consideration, because none has been established.
That the four appellants should all be held liable for the death of the two
deceased leaves no room for doubt. All of them, in going to the land
where the killing took place, were actuated by the same motive which was
to get rid of all those who might insist on plowing the land which they
believed belonged to one of them, that is, to Marcelo Kalalo, a fact
naturally inferable from the circumstance that all of them went there fully
armed and that they simultaneously acted after they had been instigated
by their mother with the words hereinbefore stated, to wit: "What is
detaining you?"
The question now to be decided is whether the appellants are guilty of
murder or of simple homicide in each of cases G.R. No. L-39303 and G.R.
No. L-39304. The Attorney-General maintains that they are guilty of
murder in view of the presence of the qualifying circumstance of abuse of
superior strength in the commission of the acts to which the said two
cases particularly refer. The trial court was of the opinion that they are
guilty of simple homicide but with the aggravating circumstance of abuse
of superior strength.
It is true that under article 248 of the Revised Penal Code, which defines
murder, the circumstance of "abuse of superior strength", if proven to
have been presented, raises homicide to the category of murder; but this
court is of the opinion that said circumstance may not properly be taken
into consideration in the two cases at bar, either as a qualifying or as a
generic circumstance, if it is borne in mind that the deceased were also
armed, one of them with a bolo, and the other with a revolver. The risk
was even for the contending parties and their strength was almost
balanced because there is no doubt but that, under circumstances similar
costs of both instances; and in conformity with the provisions of Act No.
4103, the minimum of the penalty of reclusion temporal herein imposed
upon them is hereby fixed at nine years;
In case No. 6860, or G.R. No. 39305, the court finds that the crime
committed by the appellant Marcelo Kalalo is attempted homicide, and he
is hereby sentenced to two years, four months and one day of prision
correccional, it being understood that by virtue of the provisions of said
Act No. 4103, the minimum of this penalty is six months, and he is
furthermore sentenced to pay the costs of the appeal in this case.
In all other respects, the appealed sentences in the said three cases are
hereby affirmed without prejudice to crediting the appellants therein with
one-half of the time during which they have undergone preventive
imprisonment, in accordance with article 29 of the Revised Penal Code.
So ordered.
Street, Abad Santos, Hull, and Butte, JJ., concur.
Before us now, TRINIDAD claims that the Trial Court erred in giving full
faith and credit to TAN's testimony who, TRINIDAD alleges, was an
unreliable witness. That is not so.
We find no variance in the statement made by TAN before the
NAPOLCOM Hearing Officer that when TRINIDAD boarded the Fiera in
Buenavista, he (TAN) was not in the vehicle, and that made in open Court
when he said that he was with TRINIDAD going to Butuan City on board
the Fiera. For the facts disclose that when TRINIDAD boarded the Fiera in
Buenavista, TAN was still in Langihan distributing fish. The Fiera left for
Buenavista, driven by SORIANO between 6:00 to 7:00 A.M., while TAN
followed only at 11:00, A.M. in another vehicle. So that when TRINIDAD
boarded the Fiera in Buenavista, TAN was not yet in that vehicle although
on the return trip from Butuan City to Davao City, TAN was already on
board. In fact, TAN was the one driving. TAN's testimony clarifying this
point reads:
Q Did you not say in your direct examination that you
went to Buenavista, Agusan del Norte?
A We were in Langihan and since our fishes were not
consumed there, we went to Buenavista.
were shot "point-blank." Actually, this term refers merely to the "aim
directed straight toward a target" (Webster's Third New International
Dictionary) and has no reference to the distance between the gun and the
target. And in point of fact, it matters not how far the assailant was at the
time he shot the victims, the crucial factor being whether he did shoot the
victim or not.
xxxxxx
A We proceeded to Davao.
A Lolito Soriano.
Q Were you with the fish car in going back to Langihan?
Q Fall dead?
A I did not see that it was really Trinidad who shot Laroa
but since I was already alerted by the first burst, I have
seen that it was Trinidad who shot Soriano.
A When I got out from the jeep, Trinidad also got out.
A Carbine, sir.
xxxxxx
A He called me because he wanted me to get near him.
Q Now, after you saw that the two fell dead, what did you
do?
A I moved backward.
xxxxxx
Q From the place where you were because you said you
ran, what transpired next?
A He followed me.
Q While Trinidad followed you, what happened?
THIRD DIVISION
G.R. No. 168827
SO ORDERED.
Paras, Padilla, Sarmiento and Regalado, JJ., concur.
Footnotes
** Presided over by Judge Zenaida P. Placer.
worker, Melba Dacanay, and his wife spread to people in the Municipality,
including Ramil Basallo, her brother-in-law. Elvisa also prayed for
damages in the total amount of P100,000.00. The case was docketed as
Civil Case No. 227.4
The spouses Martinez filed a motion to dismiss the complaint in Civil Case
No. 226 which was heard in the morning of February 3, 1999. The court
denied the motion.
At about 1:40 p.m. that day, Dean went to the Tubao Credit Cooperative
(TCC) office to pick up the dividend certificate of his wife who was a
member of the cooperative. He left the building and walked to his car
which was parked in front. As he did, he read the dividend certificate of his
wife. Dean was about a step away from an L-300 van which was parked in
front of the building when petitioner, armed with a bolo, suddenly emerged
from behind the vehicle and stabbed him on the left breast. Dean instantly
moved backward and saw his assailant. Dean fled to the bank office and
was able to gain entry into the bank. Petitioner ran after him and upon
cornering him, tried to stab him again. Dean was able to parry the blow
with his right hand, and the bolo hit him on the right elbow. Dean fell to the
floor and tried to stand up, but petitioner stabbed him anew on his left
breast.5 Dean managed to run to the counter which was partitioned by a
glass. Unable to get inside the counter, petitioner shouted at Dean:
"Agparentomeng ka tatta ta talaga nga patayen ka tatta nga aldawen (You
kneel down because I will really kill you now this day)." 6
Meantime, SPO1 Henry Sulatre was at the Tubao Police Station, about
100 meters away. He was informed that a fight was going on in the bank.
He rushed to the place on board the police car. When he arrived at the
scene, he saw Barangay Captain Rodolfo Oller and his son Nicky
Oller.7 Nicky handed to him the bolo which petitioner had used to stab
Dean.8 He and Rodolfo brought petitioner to the police station. On the
way, they passed by the loading area of tricycles, about 40 meters away
from the police station. Petitioner shouted: "Sinaksak kon pare,
sangsangaili laeng isuna saan isuna to agari ditoy Tubao (I stabbed him,
he is just a visitor so he should not act like a king here in Tubao)." SPO1
Sulatre placed Benjamin in jail. Benjamin kept on shouting: "Napatay kon,
napatay kon (I killed him, I killed him)."9
In the meantime, PO3 Valenzuela brought Dean to the Doa Gregoria
Memorial Hospital in Agoo, La Union. The victim was transferred to the
Ilocos Regional Hospital (IRH) in San Fernando, La Union where Dean
was examined and operated on by Dr. Nathaniel Rimando, with the
assistance of Dr. Darius Parias.10 Dean sustained two stab wounds in the
anterior chest, left, and a lacerated wound in the right elbow, forearm. Had
it not been for the blood clot that formed in the stab wound on the left
ventricle that prevented the heart from bleeding excessively, Dean would
have died from profuse bleeding.11
On February 7, 1999, Dean gave a sworn statement to SPO1
Sulatre.12 However, he deferred swearing to the truth of his statement
before the Public Prosecution because SPO1 Sulatre was waiting for the
permanent medical certificate to be issued by the hospital. SPO1 Sulatre
deferred the execution and submission of an arrest report also pending
the issuance of the medical certificate.
Instead of issuing a permanent medical certificate, the IRH issued on
February 8, 1999 the following Temporary Certificate:
TO WHOM IT MAY CONCERN:
According to hospital record, DEAN N. DONGUI-IS, 30 years old, male,
married, a resident of Francia West, Tubao, La Union, was
examined/treated/confined in this hospital on/from February 3-20, 1999.
WITH THE FOLLOWING FINDINGS AND DIAGNOSIS:
Stab Wound (L) Chest with Hemothorax (L), (L) Ventricular Perforation;
OPERATIONS:
Exploratory Thoracotomy (L); Evacuation of Retained Blood Clots;
Ventriculorrhaphy Decortication 2/11/99
and would need medical attendance for more than thirty (30) days barring
complications.13
On March 10, 1999, SPO1 Sulatre filed a criminal complaint for frustrated
murder against petitioner in the MCTC. 14 The MCTC opted not to act on
the crime pending the arrest report and SPO1 Sulatres submission of
Deans sworn statement.
The IRH issued a medical certificate on February 28, 1999, stating that
Deans wounds would need medical attendance of more than 30
days.15 Barangay Captain Oller and SPO1 Sulatre executed an affidavit
on petitioners arrest.16 Dean had his affidavit sworn before the Public
Prosecutor on March 30, 1999.
On September 13, 2000 the Provincial Prosecutor of La Union indicted
Benjamin for frustrated murder before the Regional Trial Court (RTC),
Thousand
(P22,000.00)
Pesos
as
moral
The OSG maintains that the Revised Rules of Criminal Procedure does
not require that the affidavit of the offended party or the witnesses to the
crime charged be appended to the criminal complaint filed in court.
Moreover, the issue of the validity of the criminal complaint in the MCTC
had became moot and academic after the Information was filed in the trial
court, and when petitioner was arraigned, assisted by counsel, and
entered a plea of not guilty.
with Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal
Procedure.
Moreover, petitioner submitted his counter-affidavit without any protest.
Neither did he assail the validity of the criminal complaint or the tardy
submission by SPO1 Sulatre of the medical certificate, the affidavit of
Dean and the affidavit of arrest of SPO1 Sulatre. Aside from this,
petitioner was arraigned in the RTC, assisted by counsel, and entered a
plea of not guilty.
On the second issue, the rulings of the trial court and the appellate court
are correct. Whether or not petitioner acted in self-defense whether
complete or incomplete is a question of fact, 46 the well-entrenched rule is
that findings of fact of the trial court in the ascertainment of the credibility
of witnesses and the probative weight of the evidence on record affirmed,
on appeal, by the CA are accorded high respect, if not conclusive effect,
by the Court and in the absence of any justifiable reason to deviate from
the said findings.47
In this case, the trial court gave no credence and probative weight to the
evidence of petitioner to prove that he acted in self-defense, complete or
incomplete. Petitioner failed to establish that the trial court and the
appellate court misconstrued, misappropriated or ignored facts and
circumstances of substance which, if considered, would warrant a
modification or reversal of the decision of the CA that petitioner failed to
establish clear and convincing evidence that he acted in self-defense,
complete or incomplete.
Like alibi, petitioners claim of self-defense is weak; it is also settled that
self-defense is easy to fabricate and difficult to disprove. Such a plea is
both a confession and avoidance. 48 One who invokes self-defense,
complete or incomplete, thereby admits having killed the victim by
inflicting injuries on him. The burden of evidence is shifted on the accused
to prove the confluence of the essential elements for the defense as
provided in Article 11, paragraph 1 of the Revised Penal Code:
x x x (1) unlawful aggression; (2) reasonable necessity of the means
employed to prevent or repel it; and (3) lack of sufficient provocation on
the part of the person defending himself. x x x49
The accused must rely on the strength of his own evidence and not on the
weakness of that of the prosecution because even if the evidence of the
prosecution is weak, the same can no longer be disbelieved. 50 The
accused cannot escape conviction if he fails to prove the essential
elements of complete self-defense.
full faith and credit. Moreover, the conviction of petitioner was not based
solely on the testimony of the SPO1 Salutre. The unimpeached testimony
of Dean categorically established the crime; this was corroborated by the
testimony of Dr. Nathaniel Rimando.
Petitioners argument that he should be acquitted because the criminal
complaint against him was not supported by the victims sworn statement
or by an affidavit of any witness is totally untenable. This issue should
have been raised during the preliminary investigation. It is much too late in
the day to complain about this issue after a judgment of conviction has
been rendered against him.
Contrary to petitioners stance, the testimonies of his corroborating
witnesses are unimpressive. For one, Godofredos testimony was limited
only to the alleged fact that happened outside of the cooperative building.
He himself admitted that when the protagonists started fighting each
other, for fear for his life, he hurriedly flagged and boarded a tricycle which
revved up to the highway; it was from there that he saw petitioner
slumped on his tricycle. In other words, he did not witness what transpired
thereafter or how the fight ended.
Joselitos testimony did not fare any better. It was given neither credence
nor weight by the trial court. And even if it had been proved that the victim
was rabid against petitioner, such evidence would only have established a
probability that he had indeed started an unlawful assault on petitioner.
This probability cannot, however, overcome the victims positive statement
that petitioner waylaid and assaulted him without any provocation. The
theory that Dean may have started the fight since he had a score to settle
against petitioner is flimsy, at best. Furthermore, Joselito admitted that he
was petitioners best friend; hence, his bias cannot be discounted.
The Crime Committed by the Petitioner
Petitioner next argues that should he be convicted of any crime, it should
be of less serious physical injuries only, absence the element of intent to
kill. He advances the argument that the single wound suffered by the
victim was not life threatening and that the latter was transferred to
undergo operation in another hospital only because the medical staff
where he was first rushed bungled their job. He makes much of the fact
that Dr. Darius R. Parias who issued the Medical Certificate never
testified for the prosecution.
Again, the Court is not swayed.1a\^/phi1.net
If one inflicts physical injuries on another but the latter survives, the crime
committed is either consummated physical injuries, if the offender had no
intention to kill the victim or frustrated or attempted homicide or frustrated
murder or attempted murder if the offender intends to kill the victim. Intent
to kill may be proved by evidence of the following: (a) motive; (b) the
nature or number of weapons used in the commission of the crime; (c) the
nature and number of wounds inflicted on the victim; (d) the manner the
crime was committed; and (e) words uttered by the offender at the time
the injuries are inflicted by him on the victim.60
Petitioner insists that he had no intent to kill Dean. However, the physical
evidence belies petitioners pose.
To begin with, as between petitioner and the victim, the former had more
hatred to harbor arising from the fact that the victim filed a lawsuit against
him and his wife. Petitioner thus had more motive to do harm than the
victim. By his own account, he and Dean had a history of personal
animosity.
Secondly, petitioner was armed with a deadly 14-inch bolo.
Thirdly, if it were true that petitioner stabbed Dean merely to defend
himself, it defies reason why he had to stab the victim three times.
Petitioners claim that Dean suffered only a single non-life threatening
wound is misleading. Dr. Rimando, who attended to and operated on
Dean, testified that the victim sustained three (3) stab wounds, two (2) of
which penetrated his heart and lung, causing massive blood clotting
necessitating operation; the other lacerated Deans his right elbow. The
presence of these wounds, their location and their seriousness would not
only negate self-defense; they likewise indicate a determined effort to
kill.61 Moreover, physical evidence is evidence of the highest order. It
speaks more eloquently than a hundred witnesses.62
Neither does the non-presentation of Dr. Darius R. Parias, the doctor
who signed the medical certificate, would dent a bit the evidence for the
prosecution. This is so because Dr. Parias, who assisted Dr. Rimaldo
during the operation of Dean, would merely corroborate Dr. Rimaldos
testimony. As such, his testimony is not indispensable.
Fourthly, from the manner the crime was committed, there can hardly be
any doubt that intent to kill was present. It has been clearly established
that petitioner ambushed Dean and struck him with a bolo. Dean was
defenseless
and
unarmed,
while
petitioner
was
deadly
armed.1vvphi1.nt
Lastly, the words of the petitioner while he was assaulting Dean were
most revealing:
Atty. Atitiw:
Q : When you were in the counter, what was accused Benjamin
doing?
A : When I was inside the counter and hes outside and between
us is a glass and there he shouting at me telling in Ilocano that
AGPARENTONG KA TATTA TA TALAGA NGA PATAYEN KA
TATTA NGA ALDAWEN "You kneel down because I will really kill
you now."63
xxxx
Atty. Atitiw:
Q : While passing through the loading area of the tricycle, do you
remember anything that transpired there at the loading area?
A : Yes, Sir.
Q : What is that, Mr. Witness?
A : While Benjamin Martinez, Barangay Captain Oller and I were
walking proceeding to our Police Station and when we were near
the area, at the loading area if the tricycle, Benjamin Martinez
shouted and I quote: "SINAKSAK KON PARE, SANGSANGAILI
LAENG ISUNA SAAN NGA ISUNA TI AGARI DITOY TUBAO,"
that was the utterance, Sir.64
xxxx
Q : After bringing him to the Police Station, what did you do next?
A : We put him in jail, Sir.
Q : And while in jail do you remember whether accused Benjamin
Martinez did anything while in jail?
A : Yes, Sir.
A : No, Sir.
Anent the allegation of negligence on the part of the medical staff of Doa
Gregoria Memorial Hospital where Dean was rushed, suffice it to say that
this is a new theory being foisted by petitioner. It was never raised in the
two courts below and thus it will not be entertained here. At any rate, this
allegation finds no support in the records of the case.
It cannot be denied that petitioner had the intention to kill Dean. Petitioner
performed all the acts of execution but the crime was not consummated
because of the timely medical intervention applied on the victim.
An appeal in a criminal case opens the entire case for review on any
question including one not raised by the parties. 66 In this regard, we find
ample evidence to establish treachery. The CAs advertence to the
stipulation of facts contained in the Pre-Trial Order dated December 20,
200067 is misplaced. This alleged stipulation was stricken off the record on
motion of the prosecution on the ground that no stipulation of such fact
was made.68
There is treachery when the offender commits any of the crimes against
the person, employing means, methods, or forms in the execution thereof
which tend directly and specially to insure its execution without risk to
himself arising from the defense which the offended party might take. 69
In the present case, the prosecution had met the requisites for alevosia to
be appreciated: (1) at the time of the attack the victim was not in a
position to defend himself; and (2) that the offender consciously adopted
the particular means, method, or form of the attack employed by
him.70 Dean lived to tell about the swiftness of the attempt against his life:
Q : After getting the dividend certificate where did you proceed
next?
In the case at bar, SPO1 Salutre testified that petitioner did not voluntarily
surrender but was forcibly apprehended by Barangay Captain Oller, and
thereafter turned over to him. Petitioner however insists that said
testimony is hearsay inasmuch as SPO1 Salutre was not the person who
actually arrested him. We disagree. During SPO1 Salutres testimony,
petitioner failed to object to the questions propounded to SPO1 Salutre
regarding his apprehension. Consequently, he cannot now claim that
SPO1 Salutres testimony on the arrest was hearsay. Petitioners
assertion of having voluntarily surrendered to Barangay Captain Oller was
not corroborated by any competent and reliable evidence. Considering the
damning averments in the Affidavit of Arrest, petitioner should have at
least called Barangay Captain Oller to the witness stand just to shed light
on his alleged voluntary surrender.
We agree with the trial court that the qualifying circumstance of evident
premeditation has not been adequately shown. To properly appreciate the
same, it is necessary to establish: (1) the time when the offender
determined to commit the crime; (2) an act manifestly indicating that the
culprit has clung to this determination; and (3) a sufficient lapse of time
between the determination and the execution to allow him to reflect upon
the consequences of his act. 76 Since there is dearth of evidence on when
petitioner first conceived of killing Dean and that he was afforded sufficient
time to reflect on the consequences of his contemplated crime before its
final execution, the circumstance of evident premeditation cannot be
appreciated.
Civil Liabilities of Petitioner
The trial court awarded Dean the amount of P92,000.00 representing his
hospitalization and medical expenses which was increased by the CA
to P92,715.68. To be entitled to actual damages, it is necessary to prove
the actual amount of loss with a reasonable degree of certainty, premised
upon competent proof and the best evidence obtainable to the injured
party.77 For Deans hospitalization and medical expenses, the receipts
submitted to support said claim amounted only to P56,275.48; hence,
Dean is entitled only to the said amount.
The Court awards exemplary damages in the amount of P25,000.00,
inasmuch as the qualifying circumstance of treachery attended the
commission of the crime. In People v. Catubig, 78 we emphasized that
insofar as the civil aspect of the crime is concerned, exemplary damages
in the amount of P25,000.00 is recoverable if there is present an
aggravating circumstance, whether qualifying or ordinary, in the
commission of the crime.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
C E R T I F I CAT I O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer
of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
Footnotes
Penned by Associate Justice Fernanda Lampas-Peralta, with Presiding
Justice Ruben T. Reyes and Associate Justice Josefina Guevara-Salonga,
concurring; rollo, pp. 47-64.
1
Exhibit "A."
Exhibit "B."
Id. at 18.
Exhibit "F-1."
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MA. ALICIA AUSTRIAMARTINEZ
Associate Justice
MINITA V. CHICO-NAZARIO
Asscociate Justice
10
11
12
Exhibit "C."
13
Records, p. 2.
14
Id. at 1.
15
Id. at 2.
16
Exhibit "E."
40
Id. at 50.
17
Records, p. 44.
41
Id. at 67.
18
42
Id. at 17.
19
Id. at 12.
43
20
Id. at 8.
21
22
45
Records, p. 9.
Id. at 9.
Id. at 13-14.
People of the Philippines v. De los Reyes, G.R. 140680, May 28, 2004,
430 SCRA 166; Senoja v. People of the Philippines, G.R. No. 160341,
October 19, 2004, 440 SCRA 695; Garcia v. People of the Philippines,
G.R. No. 144699, March 10, 2004, 425 SCRA 221, 229.
46
23
Exhibit "1-A."
24
Exhibit "1-C."
25
26
27
28
29
30
31
32
Id. at 19.
Id. at 21-22.
Id. at 22-23.
Id. at 32-33.
TSN, February 19, 2001, p. 9.
Id. at 12.
33
34
35
36
Id. at 286.
37
Id. at 287.
38
Rollo, p. 52.
39
Id. at 63-64.
Rugas v. People of the Philippines, G.R. No. 147789, January 14, 2004,
419 SCRA 399, 406-407; People v. De los Reyes, supra note 46, at 173.
47
48
49
50
51
52
Id. at 229.
53
55
56
57
58
60
Santos v. Court of Appeals, G.R. No. 126624, November 11, 2003, 415
SCRA 384, 399.
61
62
63
64
65
Id. at 9-10.
People of the Philippines v. Estoya, G.R. No. 153538, May 19, 2004,
428 SCRA 544, 560.
66
67
Records, p. 155.
68
Id. at 199.
69
70
People of the Philippines v. Escote, Jr., 448 Phil. 749, 786 (2003).
71
72
73
Id. at 534.
74
People of the Philippines v. Torpio, G.R. No. 138984, June 4, 2004, 431
SCRA 9, 16.
People of the Philippines v. Cario, G.R. No. 131117, June 15, 2004,
432 SCRA 57, 83.
75
76
77
78
79
appellant that he was opening the dike because he would plant the next
morning. Without much ado, Mondragon tried to hit the complainant who
dodged the blow. Thereupon, appellant drew his bolo and struck
complainant on different parts of his body. Complainant backed out,
unsheathed his own bolo, and hacked appellant on the head and forearm
and between the middle and ring fingers in order to defend himself. The
appellant retreated, and the complainant did not pursue him but went
home instead. The following day, the complainant was treated by Dr.
Alfredo Jamandre, Municipal Health Officer of Miagao, Iloilo, for the
following lesions (Exhibit A):
"1. Incised wound about 2-1/2 inches long and 1/3 inches deep
cutting diagonally across the angle of the left jaw.
"2. Incised wound 1-1/2 inches long and cutting the bone
underneath (3/4 centimeters deep) below the right eye.
"3. Incised wound about 1 inch long at the lunar side of the left
wrist.
"4. Incised wound about 3-1/2 inches long and 1/2 inch deep at
the left side of the lower part of the left arm.
"5. Incised wound about 1/2 inch long at the back of the left index,
middle and ring fingers.
"6. Incised wound about 1 inch long of the palmar side of the left
thumb.
"Barring complication the above lesions may heal from 20
to 25 days."
xxx
xxx
xxx
the petitioner and the offended party the intention of the petitioner to kill
the offended party was not manifest.
The Court of Appeals concluded that the petitioner had the intention to kill
the offended party when the petitioner answered in the affirmative the
question as to whether he would do everything that he could do to stop
the offended party from digging the canal because he needed the water.
We reproduce here the transcript of the pertinent testimony:
xxx
xxx
xxx
ATTY. MORADA:
Q In other words you want to tell us that you will do everything
you could to stop Nacionales digging the canal, because you
need water?
ATTY. CANTO:
I object to the question. It is misleading.
COURT:
Witness may answer.
WITNESS:
Yes, sir, because I need the water.
xxx
to what he really meant to do. At least it cannot be said that when the
petitioner answered "yes", when he was asked whether he would do
everything to stop Nacionales from digging the canal, the only way he had
in mind to stop Nacionales was to kill him. It must be noted that this
answer of the petitioner was made to a qualifying question propounded to
him by the private prosecutor over the objection of his counsel on the
ground that the question was misleading. At most, that answer of the
petitioner may only be considered as an expression of opinion of what he
would do under a given circumstance.
xxx
xxx
The foregoing statement or answer was made by the petitioner during the
trial which took place on January 14, 1959. The incident in question took
place on July 11, 1954. The statement made by the petitioner almost five
years after the occurrence of the incident should not, in our opinion, be
considered as an accurate indication of what he had in his mind at the
time of the incident. Besides, that answer of the petitioner is not a
categorical statement of an intention on his part to kill the offended party.
The term "will do everything" has a broad meaning and it should be
construed in a manner as to give the petitioner the benefit of the doubt as
See also: U.S. vs. Reyes and Palanca, 80 Phil. 551; U.S. vs.
Mendoza, 38 Phil. 691; People vs. Montes. 53 Phil. 323; People
vs. Pacusbas and Pacusbas, 64 Phil. 614; and People vs. Penesa
81 Phil. 398.
money had not been actually stolen, but that he lost it in gambling.
Because of these accusations against him, he nurtured resentment
against both Tan Siong Kiap and Jose Sy.
So early in the morning of September 3, while a Chinaman by the name of
Ngo Cho, who the possessor of a caliber .45 pistol, was away from his
room, defendant-appellant got his pistol and tucked it in his belt. With this
pistol he went to the restaurant at 822 Ongpin, and there shot Ong Pian.
After shooting him, he proceeded to 511 Misericordia, in store where Jose
Sy and Tan Siong Kiap were, and there he fired at them. Then he escaped
to Legarda Street, in Sampaloc, where he borrowed P1 from his relatives.
From there he went to Malabon, to the house of his mother, to whom he
told he had killed two persons and from he asked money.
The foregoing is the substance of the written declaration made by the
defendant-appellant in Exhibit D on September 6, 1949. At the time of the
trial, however, he disowned the confession and explained that he signed it
without having read its contents. He declared that it was not he who shot
the three victims, but it was one by the name of Chua Tone, with whom he
had previously connived to kill the three other victims. He introduced no
witnesses, however, to support his denial. Neither did he deny that he
admitted before Captain Lomotan having killed the three persons, or
having been found in Tarlac in possession of the caliber .45 pistol, Exhibit
C, and its magazine, Exhibit C-1. In his cross-examination he admitted
many of the incidents mentioned in the confession, especially the cause of
his resentment against his victims Ong Pian, Jose Sy, and Tan Siong
Kiap.
The trial court refused to believed his testimony, and therefore, found him
guilty of the crime charged.
On this appeal counsel for the defendant-appellant claims that the trial
court erred in not finding that Tan Siong Kiap received the shot
accidentally from the same bullet that had been fired at Jose Sy, and in
finding that defendant-appellant has committed a crime distinct and
separate from that of murder for the slaying of Jose Sy. We find no merit
in this contention. According to the uncontradicted testimony of the
offended party Tan Siong Kiap, when the latters saw defendant-appellant
firing shots he asked him why he was doing so, and the defendant-
appellant, instead of answering him, turned around and fired at him also. It
is not true, therefore, that the shot which hit him was fired at Sy.
It is also contended that the evidence is not sufficient to sustain the
judgment of conviction. We also find no merit in this contention. The
evidence submitted to prove the charge consists of: the uncontradicted
testimony of the victim himself; the admissions made verbally by the
defendant-appellant before Captain Lomotan in Tarlac; the fact that the
defendant-appellant had escaped and was found in Tarlac; his possession
of the .45 caliber pistol coupled with the fact, attested to by the testimony
of the physician who examined and treated the wounds of Tan Siong Kiap,
that the wounds found in his person must have been caused by the
caliber .45 bullet; and, lastly, the confession of the defendant-appellant
himself, Exhibit D, which he was not able to impugn. As against this mass
of evidence, defendant-appellant has only made a very unbelievable story
that it was not he but another that had committed the crime charged. His
admissions at the time of the trial regarding the incidents, as well as the
cause of his having assaulted his victims, coincide exactly with the
reasons given in his written confession. This shows that he had made the
confession himself, for nobody but himself could have known the facts
therein stated. The claim that the offense has not been proved beyond
reasonable doubt must be dismissed.
The defendant-appellant lastly claims that the lower court also erred in
sentencing him to pay an indemnity of P350. The offended party testified
that he actually spent P300 for hospital and doctor's fees, and that he was
confined in the hospital for nine days. The above facts stand
uncontradicted. This assignment of error must also be dismissed.
It is lastly contended that the defendant-appellant should be found guilty
only of less serious physical injuries instead of the crime of frustrated
murder as defendant-appellant admitted in his confession in the open
court that he had a grudge against the offended party, and that he
connived with another to kill the latter. The intent to kill is also evident from
his conduct in firing the shot directly at the body of the offended party.
But while intent to kill is conclusively proved the wound inflicted was not
necessarily fatal, because it did not touch any of the vital organs of the
body. As a matter of fact, the medical certification issued by the physician
who examined the wound of the offended party at the time he went to the
hospital, states that the wound was to heal within a period of fourteen
days, while the offended party actually stayed in the hospital for nine days
and continued receiving treatment thereafter five time for the period of
more than ten days, or a total of not more than thirty days. The question
that needs to be determined, therefore, is: Did the defendant-appellant
perform all the acts of execution necessary to produce the death of his
victim?
In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. Dagman, 47
Phil., 768 and People vs. Borinaga, 55 Phil., 433, this Court has held that
it is not necessary that the accused actually commit all the acts of
execution necessary to produce the death of his victim, but that it is
sufficient that he believes that he has committed all said acts. In the case
of People vs. Dagman, supra, the victim was first knocked down by a
stone thrown at him, then attacked with a lance, and then wounded by
bolos and clubs wielded by the accused, but the victim upon falling down
feigned death, and the accused desisted from further continuing in the
assault in the belief that their victim was dead. And in the case of
People vs. Borinaga, supra, the accused stabbed his intended victim, but
the knife with which he committed the aggression instead of hitting the
body of the victim, lodged in the back of the chair in which he was seated,
although the accused believed that he had already harmed him. In both
these cases this Court held that of the crime committed was that of
frustrated murder, because the subjective phase of the acts necessary to
commit the offense had already passed; there was full and complete belief
on the part of the assailant that he had committed all the acts of execution
necessary to produce the death of the intended victim.
aspect, 0.6 x 0.4 clean and left, lower third, posterior aspect, 0.4 x
0.2 come right knee, 0.6 x 0.4 come right leg, upper third, anterior
aspect, 1.4 x 0.8
April 3, 1990
In his second assignment of error the appellant claims that the information
does not allege any aggravating circumstance nor was any proved during the
trial.
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in
Criminal Case No. 83-031-B before the Regional Trial Court, Branch II,
Borongan, Eastern Samar. The information filed in the said case reads as
follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior
complaint under oath by the offended party, accuses CEILITO
ORITA alias LITO of the crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning
inside a boarding house at Victoria St., Poblacion, Borongan,
Eastern Samar, Philippines, and within the jurisdiction of this
Honorable Court, above named accused with lewd designs and
by the use of a Batangas knife he conveniently provided himself
for the purpose and with threats and intimidation, did, then and
there wilfully, unlawfully and feloniously lay with and succeeded in
having sexual intercourse with Cristina S. Abayan against her will
and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the
offense charged. After the witnesses for the People testified and the
exhibits were formally offered and admitted, the prosecution rested its
case. Thereafter, the defense opted not to present any exculpatory
evidence and instead filed a Motion to Dismiss. On August 5, 1985, the
trial court rendered its decision, the dispositive portion of which reads (pp.
59-60, Rollo):
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of
Appeals. On December 29, 1988, the Court of Appeals rendered its
decision, the dispositive portion of which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED,
and the appellant found guilty of the crime of rape, and
consequently, sentenced to suffer imprisonment of reclusion
perpetua and to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting
aside its December 29, 1988 decision and forwarded the case to this
Court, considering the provision of Section 9, paragraph 3 of Batas
Pambansa Blg. 129 in conjunction with Section 17, paragraph 3,
subparagraph 1 of the Judiciary Act of 1948.
the room, she ran to another room. Appellant again chased her.
She fled to another room and jumped out through a window (p.
27, ibid).
Still naked, she darted to the municipal building, which was about
eighteen meters in front of the boarding house, and knocked on
the door. When there was no answer, she ran around the building
and knocked on the back door. When the policemen who were
inside the building opened the door, they found complainant
naked sitting on the stairs crying. Pat. Donceras, the first
policeman to see her, took off his jacket and wrapped it around
her. When they discovered what happened, Pat. Donceras and
two other policemen rushed to the boarding house. They heard a
sound at the second floor and saw somebody running away. Due
to darkness, they failed to apprehend appellant.
Meanwhile, the policemen brought complainant to the Eastern
Samar Provincial Hospital where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined
complainant, issued a Medical Certificate (Exhibit "A") which
states:
Physical Examination Patient is fairly built, came in
with loose clothing with no under-clothes; appears in state
of shock, per unambulatory.
PE Findings Pertinent Findings only.
Neck- Circumscribed hematoma at Ant. neck.
Breast Well developed, conical in shape with
prominent nipples; linear abrasions below (L) breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L) knees.
Vulva No visible abrasions or marks at the perineal
area or over the vulva, errythematous (sic)areas noted
surrounding vaginal orifice, tender, hymen intact; no
laceration fresh and old noted; examining finger can
barely enter and with difficulty; vaginal canal tight; no
discharges noted.
xxx
xxx
Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States
v. Garcia: 9 Phil. 434) because not all acts of execution was
performed. The offender merely commenced the commission of a felony
directly by overt acts. Taking into account the nature, elements and
manner of execution of the crime of rape and jurisprudence on the matter,
it is hardly conceivable how the frustrated stage in rape can ever be
committed.
Of course, We are aware of our earlier pronouncement in the case of
People v. Eria 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 orfrustrated 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 Eria case, supra, might have
prompted the law-making body to include the crime of frustrated rape in
the amendments introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the
genital organ of the victim, the trial court relied on the testimony of Dr.
Zamora when he "categorically declared that the findings in the vulva
does not give a concrete disclosure of penetration. As a matter of fact, he
tossed back to the offended party the answer as to whether or not there
actually was penetration." (p. 53, Rollo) Furthermore, the trial court stated
(p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate
(Exhibit "A") as interpreted by Dr. Reinerio Zamora and the
equivocal declaration of the latter of uncertainty whether there
was penetration or not. It is true, and the Court is not oblivious,
that conviction for rape could proceed from the uncorroborated
testimony of the offended party and that a medical certificate is
not necessary (People v. Royeras People v. Orteza, 6 SCRA 109,
113). But the citations the people relied upon cannot be applicable
to the instant case. The testimony of the offended party is at
variance with the medical certificate. As such, a very disturbing
doubt has surfaced in the mind of the court. It should be stressed
that in cases of rape where there is a positive testimony and a
medical certificate, both should in all respect, compliment each
other, for otherwise to rely on the testimony alone in utter
xxx
xxx
Q What do you mean when you said comply, or what act do you
referred (sic) to, when you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be convicted
even on the sole basis of the victim's testimony if credible (People v.
Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v.
Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People
v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349).
Moreover, Dr. Zamora's testimony is merely corroborative and is not an
indispensable element in the prosecution of this case (People v.
Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the
scale in favor of the accused because after a thorough review of the
records, We find the evidence sufficient to prove his guilt beyond
reasonable doubt of the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that
whenever the crime of rape is committed with the use of a deadly weapon,
plastic bags with water to be frozen into ice in the freezer located at the
second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon.
As Corazon was busy preparing the drinks, she heard one of her
daughters cry, "Ayo'ko, ayo'ko!" 7 prompting Corazon to rush upstairs.
Thereupon, she saw Primo Campuhan inside her children's room kneeling
before Crysthel whose pajamas or "jogging pants" and panty were already
removed, while his short pants were down to his knees.
According to Corazon, Primo was forcing his penis into Crysthel's vagina.
Horrified, she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and
boxed him several times. He evaded her blows and pulled up his pants.
He pushed Corazon aside when she tried to block his path. Corazon then
ran out and shouted for help thus prompting her brother, a cousin and an
uncle who were living within their compound, to chase the
accused. 8Seconds later, Primo was apprehended by those who answered
Corazon's call for help. They held the accused at the back of their
compound until they were advised by their neighbors to call the barangay
officials instead of detaining him for his misdeed. Physical examination of
the victim yielded negative results. No evident sign of extra-genital
physical injury was noted by the medico-legal officer on Crysthel's body as
her hymen was intact and its orifice was only 0.5 cm. in diameter.
A review of the records clearly discloses that the prosecution utterly failed
to discharge its onus of proving that Primo's penis was able to penetrate
Crysthel's vagina however slight. Even if we grant arguendo that Corazon
witnessed Primo in the act of sexually molesting her daughter, we
seriously doubt the veracity of her claim that she saw the inter-genital
contact between Primo and Crysthel. When asked what she saw upon
entering her children's room Corazon plunged into saying that she saw
Primo poking his penis on the vagina of Crysthel without explaining her
relative position to them as to enable her to see clearly and sufficiently, in
automotive lingo, the contact point. It should be recalled that when
Corazon chanced upon Primo and Crysthel, the former was allegedly in a
kneeling position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of
the accused is pinning down the victim, while his right hand is
holding his penis and his left hand is spreading the legs of the
victim).
It can reasonably be drawn from the foregoing narration that Primo's
kneeling position rendered an unbridled observation impossible. Not even
a vantage point from the side of the accused and the victim would have
provided Corazon an unobstructed view of Primo's penis supposedly
reaching Crysthel's external genitalia, i.e., labia majora, labia minora,
hymen, clitoris, etc., since the legs and arms of Primo would have hidden
his movements from Corazon's sight, not to discount the fact that Primo's
right hand was allegedly holding his penis thereby blocking it from
Corazon's view. It is the burden of the prosecution to establish how
Corazon could have seen the sexual contact and to shove her account
into the permissive sphere of credibility. It is not enough that she claims
that she saw what was done to her daughter. It is required that her claim
be properly demonstrated to inspire belief. The prosecution failed in this
respect, thus we cannot conclude without any taint of serious doubt that
inter-genital contact was at all achieved. To hold otherwise would be to
resolve the doubt in favor of the prosecution but to run roughshod over the
constitutional right of the accused to be presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his
wicked intention despite her timely appearance, thus giving her the
opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with man's instinct of selfpreservation to remain where he is and persist in satisfying his lust even
when he knows fully well that his dastardly acts have already been
discovered or witnessed by no less than the mother of his victim. For, the
normal behavior or reaction of Primo upon learning of Corazon's presence
would have been to pull his pants up to avoid being caught literally with
his pants down. The interval, although relatively short, provided more than
enough opportunity for Primo not only to desist from but even to conceal
his evil design.
What appears to be the basis of the conviction of the accused was
Crysthel's answer to the question of the court
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she
readily said, "No." Thus
Q: But did his penis penetrate your organ?
A: No, sir. 20
This testimony alone should dissipate the mist of confusion that
enshrouds the question of whether rape in this case was consummated. It
has foreclosed the possibility of Primo's penis penetrating her vagina,
however slight. Crysthel made a categorical statement denying
penetration, 27 obviously induced by a question propounded to her who
could not have been aware of the finer distinctions between touching and
penetration. Consequently, it is improper and unfair to attach to this reply
of a four (4)-year old child, whose vocabulary is yet as underdeveloped as
her sex and whose language is bereft of worldly sophistication, an adult
interpretation that because the penis of the accused touched her organ
there was sexual entry. Nor can it be deduced that in trying to penetrate
the victim's organ the penis of the accused touched the middle portion of
her vagina and entered the labia of her pudendum as the prosecution
failed to establish sufficiently that Primo made efforts to penetrate
Crysthel. 22Corazon did not say, nay, not even hint that Primo's penis was
erect or that he responded with an erection. 23 On the contrary, Corazon
even narrated that Primo had to hold his penis with his right hand, thus
showing that he had yet to attain an erection to be able to penetrate his
victim.
Antithetically, the possibility of Primo's penis having breached Crysthel's
vagina is belied by the child's own assertion that she resisted Primo's
advances by putting her legs close together; 24 consequently, she did not
feel any intense pain but just felt "not happy" about what Primo did to
her. 25 Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In
cases where penetration was not fully established, the Court had
anchored its conclusion that rape nevertheless was consummated on the
victim's testimony that she felt pain, or the medico-legal finding of
discoloration in the inner lips of the vagina, or the labia minora was
already gaping with redness, or the hymenal tags were no longer
visible. 26 None was shown in this case. Although a child's testimony must
be received with due consideration on account of her tender age, the
Court endeavors at the same time to harness only what in her story
appears to be true, acutely aware of the equally guaranteed rights of the
accused. Thus, we have to conclude that even on the basis of the
testimony of Crysthel alone the accused cannot be held liable for
consummated rape; worse, be sentenced to death.1wphi1
Lastly, it is pertinent to mention the medico legal officer's finding in this
case that there were no external signs of physical injuries on complaining
witness' body to conclude from a medical perspective that penetration had
taken place. As Dr. Aurea P. Villena explained, although the absence of
complete penetration of the hymen does not negate the possibility of
contact, she clarified that there was no medical basis to hold that there
was sexual contact between the accused and the victim. 27
In cases of rape where there is a positive testimony and a medical
certificate, both should in all respects complement each other; otherwise,
to rely on the testimonial evidence alone, in utter disregard of the manifest
variance in the medical certificate, would be productive of unwarranted or
even mischievous results. It is necessary to carefully ascertain whether
the penis of the accused in reality entered the labial threshold of the
female organ to accurately conclude that rape was consummated. Failing
in this, the thin line that separates attempted rape from consummated
rape will significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is
attempted when the offender commences the commission of rape directly
by overt acts, and does not perform all the acts of execution which should
produce the crime of rape by reason of some cause or accident other than
his own spontaneous desistance. All the elements of attempted rape
and only of attempted rape are present in the instant case, hence, the
accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the
imposable penalty of death for the offense charged, which is statutory
rape of a minor below seven (7) years. Two (2) degrees lower is reclusion
temporal, the range of which is twelve (12) years and one (1) day to
twenty (20) years. Applying the Indeterminate Sentence Law, and in the
absence of any mitigating or aggravating circumstance, the maximum of
the penalty to be imposed upon the accused shall be taken from the
medium period of reclusion temporal, the range of which is fourteen (14)
years, eight (8) months and (1) day to seventeen (17) years and four (4)
months, while the minimum shall be taken from the penalty next lower in
degree, which is prision mayor, the range of which is from six (6) years
and one (1) day to twelve (12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO
"SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing
him to death and to pay damages is MODIFIED. He is instead found guilty
of ATTEMPTED RAPE and sentenced to an indeterminate prison term of
eight (8) years four (4) months and ten (10) days of prision mayor medium
as minimum, to fourteen (14) years ten (10) months and twenty (20) days
ofreclusion temporal medium as maximum. Costs de oficio.
SO ORDERED.1wphi1.nt
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing,
Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon,
Jr.,
JJ.,
concur.
Pnganiban, J., in the result.
Footnotes
1
People v. Ceilito Orita alias "Lito," G.R. No. 88724, 3 April 1990,
184 SCRA 105.
2
See Note 1.
See Note 4.
19
12
20
21
23
25
Ibid.
A: Yes sir.
Q: And you also made the result of the genital physical
examination shows (sic) that there is no injury on any part
of the body of the patient, correct, Doctor?
A: Yes sir.
26
Q: Will you tell the Court, what do you mean by this No. 1.
conclusion appearing in Exhibit "A" which I quote "no evident sign
of extra-genital injury noted on the body of the subject at the time
of examination?"