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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-12155

February 2, 1917

THE UNITED STATES, plaintiff-appellee,


vs.
PROTASIO EDUAVE, defendant-appellant.
Manuel Roxas for appellant.
Attorney-General Avancea for appellee.
MORELAND, J.:
We believe that the accused is guilty of frustrated murder.
We are satisfied that there was an intent to kill in this case. A deadly
weapon was used. The blow was directed toward a vital part of the body.
The aggressor stated his purpose to kill, thought he had killed, and threw
the body into the bushes. When he gave himself up he declared that he
had killed the complainant.
There was alevosia to qualify the crime as murder if death had resulted.
The accused rushed upon the girl suddenly and struck her from behind, in
part at least, with a sharp bolo, producing a frightful gash in the lumbar
region and slightly to the side eight and one-half inches long and two
inches deep, severing all of the muscles and tissues of that part.
The motive of the crime was that the accused was incensed at the girl for
the reason that she had theretofore charged him criminally before the
local officials with having raped her and with being the cause of her
pregnancy. He was her mother's querido and was living with her as such
at the time the crime here charged was committed.
That the accused is guilty of some crime is not denied. The only question
is the precise crime of which he should be convicted. It is contended, in
the first place, that, if death has resulted, the crime would not have been

murder but homicide, and in the second place, that it is attempted and not
frustrated homicide.
As to the first contention, we are of the opinion that the crime committed
would have been murder if the girl had been killed. It is qualified by the
circumstance of alevosia, the accused making a sudden attack upon his
victim from the rear, or partly from the rear, and dealing her a terrible blow
in the back and side with his bolo. Such an attack necessitates the finding
that it was made treacherously; and that being so the crime would have
been qualified as murder if death had resulted.
As to the second contention, we are of the opinion that the crime was
frustrated and not attempted murder. Article 3 of the Penal Code defines a
frustrated felony as follows:
A felony is frustrated when the offender performs all the acts of
execution which should produce the felony as a consequence, but
which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
An attempted felony is defined thus:
There is an attempt when the offender commences the
commission of the felony directly by overt acts, and does not
perform all the acts of execution which constitute the felony by
reason of some cause or accident other than his own voluntarily
desistance.
The crime cannot be attempted murder. This is clear from the fact that the
defendant performed all of the acts which should have resulted in the
consummated crime and voluntarily desisted from further acts. A crime
cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by
some outside cause from performing all of the acts which should produce
the crime. In other words, to be an attempted crime the purpose of the
offender must be thwarted by a foreign force or agency which intervenes
and compels him to stop prior to the moment when he has performed all
of the acts which should produce the crime as a consequence, which acts
it is his intention to perform. If he has performed all of the acts which
should result in the consummation of the crime and voluntarily desists

from proceeding further, it can not be an attempt. The essential element


which distinguishes attempted from frustrated felony is that, in the latter,
there is no intervention of a foreign or extraneous cause or agency
between the beginning of the commission of the crime and the moment
when all of the acts have been performed which should result in the
consummated crime; while in the former there is such intervention and the
offender does not arrive at the point of performing all of the acts which
should produce the crime. He is stopped short of that point by some
cause apart from his voluntary desistance.
To put it in another way, in case of an attempt the offender never passes
the subjective phase of the offense. He is interrupted and compelled to
desist by the intervention of outside causes before the subjective phase is
passed.
On the other hand, in case of frustrated crimes the subjective phase is
completely passed. Subjectively the crime is complete. Nothing
interrupted the offender while he was passing through the subjective
phase. The crime, however, is not consummated by reason of the
intervention of causes independent of the will of the offender. He did all
that was necessary to commit the crime. If the crime did not result as a
consequence it was due to something beyond his control.
The subjective phase is that portion of the acts constituting the crime
included between the act which begins the commission of the crime and
the last act performed by the offender which, with the prior acts, should
result in the consummated crime. From that time forward the phase is
objective. It may also be said to be that period occupied by the acts of the
offender over which he has control that period between the point where
he begins and the points where he voluntarily desists. If between these
two points the offender is stopped by reason of any cause outside of his
own voluntary desistance, the subjective phase has not been passed and
it is an attempt. If he is not so stopped but continues until he performs the
last act, it is frustrated.
That the case before us is frustrated is clear.
The penalty should have been thirteen years of cadena temporal there
being neither aggravating nor mitigating circumstance. As so modified, the
judgment is affirmed with costs. So ordered.

Torres
and
Araullo,
Carson and Trent, JJ., concur in the result.

JJ., concur.

this Honorable Court, the above-named accused, conspiring,


confederating and mutually helping one another, with intent to kill, with
treachery and evident premeditation, did then and there, wilfully,
unlawfully, and feloniously attack, assault and hit with a piece of hollow
block, one RUBEN RODIL who thereby sustained a non-mortal injury on
his head and on the different parts of his body, the accused thus
commenced the commission of the felony directly by overt acts, but failed
to perform all the acts of execution which would produce the crime of
Murder by reason of some causes other than their own spontaneous
desistance, that is, the said Ruben Rodil was able to ran (sic) away and
the timely response of the policemen, to his damage and prejudice.
CONTRARY TO LAW.3

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 166326

January 25, 2006

ESMERALDO RIVERA, ISMAEL RIVERA, EDGARDO


RIVERA, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review of the Decision 1 of the Court of Appeals (CA)
in CA-G.R. CR No. 27215 affirming, with modification, the Decision 2 of the
Regional Trial Court (RTC) of Cavite, Branch 90, in Criminal Case No.
6962-99, entitled People of the Philippines. v. Esmeraldo Rivera, et al.
On April 12, 1999, an Information was filed in the RTC of Imus, Cavite,
charging Esmeraldo, Ismael and Edgardo, all surnamed Rivera, of
attempted murder. The accusatory portion of the Information reads:
That on or about the 3rd day of May 1998, in the Municipality of
Dasmarias, Province of Cavite, Philippines, and within the jurisdiction of

Ruben Rodil testified that he used to work as a taxi driver. He stopped


driving in April 1998 after a would-be rapist threatened his life. He was
even given a citation as a Bayaning Pilipino by the television network
ABS-CBN for saving the would-be victim. His wife eked out a living as a
manicurist. They and their three children resided in Barangay San Isidro
Labrador II, Dasmarias, Cavite, near the house of Esmeraldo Rivera and
his brothers Ismael and Edgardo.
At noon of May 2, 1998, Ruben went to a nearby store to buy food.
Edgardo mocked him for being jobless and dependent on his wife for
support. Ruben resented the rebuke and hurled invectives at Edgardo. A
heated exchange of words ensued.
At about 7:30 p.m. the next day, a Sunday, Ruben went to the store to buy
food and to look for his wife. His three-year-old daughter was with him.
Momentarily, Esmeraldo and his two brothers, Ismael and Edgardo,
emerged from their house and ganged up on Ruben. Esmeraldo and
Ismael mauled Ruben with fist blows and he fell to the ground. In that
helpless position, Edgardo hit Ruben three times with a hollow block on
the parietal area. Esmeraldo and Ismael continued mauling Ruben.
People who saw the incident shouted: "Awatin sila! Awatin sila!" Ruben
felt dizzy but managed to stand up. Ismael threw a stone at him, hitting
him at the back. When policemen on board a mobile car arrived,
Esmeraldo, Ismael and Edgardo fled to their house.
Ruben was brought to the hospital. His attending physician, Dr. Lamberto
Cagingin, Jr., signed a medical certificate in which he declared that Ruben
sustained lacerated wounds on the parietal area, cerebral concussion or
contusion, hematoma on the left upper buttocks, multiple abrasions on the
left shoulder and hematoma periorbital left. 4 The doctor declared that the
lacerated wound in the parietal area was slight and superficial and would

heal from one to seven days. 5 The doctor prescribed medicine for 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

ATTEMPTED MURDER and sentenced to an indeterminate penalty of 2


years ofprision correccional as minimum to 6 years and 1 day of prision
mayor as maximum. In all other respects, the decision appealed from is
AFFIRMED.
SO ORDERED.9
The accused, now petitioners, filed the instant petition for review
on certiorari, alleging that the CA erred in affirming the RTC decision.
They insist that the prosecution failed to prove that they had the intention
to kill Ruben when they mauled and hit him with a hollow block.
Petitioners aver that, based on the testimony of Dr. Cagingin, Ruben
sustained only a superficial wound in the parietal area; hence, they should
be held criminally liable for physical injuries only. Even if petitioners had
the intent to kill Ruben, the prosecution failed to prove treachery; hence,
they should be held guilty only of attempted homicide.
On the other hand, the CA held that the prosecution was able to prove
petitioners intent to kill Ruben:
On the first assigned error, intent to kill may be deduced from the nature
of the wound inflicted and the kind of weapon used. Intent to kill was
established by victim Ruben Rodil in his testimony as follows:
Q: And while you were being boxed by Esmeraldo and Bong, what
happened next?
A: When I was already lying [down] xxx, Dagol Rivera showed up with a
piece of hollow block xxx and hit me thrice on the head, Sir.
Q: And what about the two (2), what were they doing when you were hit
with a hollow block by Dagol?
A: I was already lying on the ground and they kept on boxing me while
Dagol was hitting, Sir.
As earlier stated by Dr. Cagingin, appellants could have killed the victim
had the hollow block directly hit his head, and had the police not promptly
intervened so that the brothers scampered away. When a wound is not
sufficient to cause death, but intent to kill is evident, the crime is
attempted. Intent to kill was shown by the fact that the (3) brothers helped
each other maul the defenseless victim, and even after he had already
fallen to the ground; that one of them even picked up a cement hollow
block and proceeded to hit the victim on the head with it three times; and

that it was only the arrival of the policemen that made the appellants
desist from their concerted act of trying to kill Ruben Rodil. 10
The Office of the Solicitor General (OSG), for its part, asserts that the
decision of the CA is correct, thus:
The evidence and testimonies of the prosecution witnesses defeat the
presumption of innocence raised by petitioners. The crime has been
clearly established with petitioners as the perpetrators. Their intent to kill
is very evident and was established beyond reasonable doubt.
Eyewitnesses to the crime, Alicia Vera Cruz and Lucita Villejo clearly and
categorically declared that the victim Ruben Rodil was walking along St.
Peter Avenue when he was suddenly boxed by Esmeraldo "Baby" Rivera.
They further narrated that, soon thereafter, his two brothers Ismael and
Edgardo "Dagul" Rivera, coming from St. Peter II, ganged up on the
victim. Both Alicia Vera Cruz and Lucita Villejo recounted that they saw
Edgardo "Dagul" Rivera pick up a hollow block and hit Ruben Rodil with it
three (3) times. A careful review of their testimonies revealed the
suddenness and unexpectedness of the attack of petitioners. In this case,
the victim did not even have the slightest warning of the danger that lay
ahead as he was carrying his three-year old daughter. He was caught 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.

An essential element of murder and homicide, whether in their


consummated, frustrated or attempted stage, is intent of the offenders to
kill the victim immediately before or simultaneously with the infliction of
injuries. Intent to kill is a specific intent which the prosecution must prove
by direct or circumstantial evidence, while general criminal intent is
presumed from the commission of a felony by dolo.
In People v. Delim,12 the Court declared that evidence to prove intent to
kill in crimes against persons may consist, inter alia, in the means used by
the malefactors, the nature, location and number of wounds sustained by
the victim, the conduct of the malefactors before, at the time, or
immediately after the killing of the victim, the circumstances under which
the crime was committed and the motives of the accused. If the victim
dies as a result of a deliberate act of the malefactors, intent to kill is
presumed.
In the present case, the prosecution mustered the requisite quantum of
evidence to prove the intent of petitioners to kill Ruben. Esmeraldo and
Ismael pummeled the victim with fist blows. Even as Ruben fell to the
ground, unable to defend himself against the sudden and sustained
assault of petitioners, Edgardo hit him three times with a hollow block.
Edgardo tried to hit Ruben on the head, missed, but still managed to hit
the victim only in the parietal area, resulting in a lacerated wound and
cerebral contusions.
That the head wounds sustained by the victim were merely superficial and
could not have produced his death does not negate petitioners criminal
liability for attempted murder. Even if Edgardo did not hit the victim
squarely on the head, petitioners are still criminally liable for attempted
murder.
The last paragraph of Article 6 of the Revised Penal Code defines an
attempt to commit a felony, thus:
There is an attempt when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident
other than his own spontaneous desistance.
The essential elements of an attempted felony are as follows:
1. The offender commences the commission of the felony directly
by overt acts;

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


produce the felony;

hollow block; they narrowly missed hitting the middle portion of his head. If
Edgardo had done so, Ruben would surely have died.

3. The offenders act be not stopped by his own spontaneous


desistance;

We reject petitioners contention that the prosecution failed to prove


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

4. The non-performance of all acts of execution was due to cause


or accident other than his spontaneous desistance.13
The first requisite of an attempted felony consists of two elements,
namely:
(1) That there be external acts;
(2) Such external acts have direct connection with the crime
intended to be committed.14
The Court in People v. Lizada15 elaborated on the concept of an overt or
external act, thus:
An overt or external act is defined as some physical activity or deed,
indicating the intention to commit a particular crime, more than a mere
planning or preparation, which if carried out to its complete termination
following its natural course, without being frustrated by external obstacles
nor by the spontaneous desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense. The raison detre for the law
requiring a direct overt act is that, in a majority of cases, the conduct of
the accused consisting merely of acts of preparation has never ceased to
be equivocal; and this is necessarily so, irrespective of his declared intent.
It is that quality of being equivocal that must be lacking before the act
becomes one which may be said to be a commencement of the
commission of the crime, or an overt act or before any fragment of the
crime itself has been committed, and this is so for the reason that so long
as the equivocal quality remains, no one can say with certainty what the
intent of the accused is. It is necessary that the overt act should have
been the ultimate step towards the consummation of the design. It is
sufficient if it was the "first or some subsequent step in a direct movement
towards the commission of the offense after the preparations are made."
The act done need not constitute the last proximate one for completion. It
is necessary, however, that the attempt must have a causal relation to the
intended crime. In the words of Viada, the overt acts must have an
immediate and necessary relation to the offense.16
In the case at bar, petitioners, who acted in concert, commenced the
felony of murder by mauling the victim and hitting him three times with a

The appellate court sentenced petitioners to suffer an indeterminate


penalty of two (2) years of prision correccional in its minimum period, as
minimum, to six years and one day of prision mayor in its maximum
period, as maximum. This is erroneous. Under Article 248 of the Revised
Penal Code, as amended by Republic Act No. 7659, the penalty for
murder is reclusion perpetua to death. Since petitioners are guilty only of
attempted murder, the penalty should be reduced by two degrees,
conformably to Article 51 of the Revised Penal Code. Under paragraph 2
of Article 61, in relation to Article 71 of the Revised Penal Code, such a
penalty is prision mayor. In the absence of any modifying circumstance in
the commission of the felony (other than the qualifying circumstance of
treachery), the maximum of the indeterminate penalty shall be taken from
the medium period ofprision mayor which has a range of from eight (8)
years and one (1) day to ten (10) years. To determine the minimum of the
indeterminate penalty, the penalty of prision mayor should be reduced by
one degree, prision correccional, which has a range of six (6) months and
one (1) day to six (6) years.
Hence, petitioners should be sentenced to suffer an indeterminate penalty
of from two (2) years of prision correccional in its minimum period, as
minimum, to nine (9) years and four (4) months of prision mayor in its
medium period, as maximum.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of
merit. The Decision of the Court of Appeals is AFFIRMED WITH THE
MODIFICATION that petitioners are sentenced to suffer an indeterminate
penalty of from two (2) years of prision correccional in its minimum period,
as minimum, to nine (9) years and four (4) months of prision mayor in its
medium period, as maximum. No costs.

SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice

TSN, June 19, 2000, p. 29.

TSN, September 24, 2001, pp. 2-18.

Records, p. 257.

CA rollo, p. 136.

WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
CONSUELO YNARESSANTIAGO
Associate Justice

MA. ALICIA AUSTRIAMARTINEZ


Asscociate Justice

10

Rollo, pp. 25-26.

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

People v. Lizada, G.R. No. 143468-71, January 24, 2003, 444


Phil. 67 (2003).
14

Reyes, Revised Penal Code, 1981, Vol. I, p. 98.

15

Supra at note 13.

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

People v. Gutierrez, G.R. No. 142905, March 18, 2002, 429


Phil. 124, 126 (2002).
18

People v. Coscos, G.R. No. 132321, January 21, 2002, 424


Phil. 886, 903 (2002).
19

Footnotes
1

Penned by Associate Justice Portia Alio-Hormachuelos


(Chairman), with Associate Justices Danilo B. Pine and Fernanda
Lampas Peralta, concurring; rollo, pp. 17-29.
2

Penned by Judge Dolores L. Espaol; CA rollo, pp. 15-19.

Records, p. 1.

Exhibits "B" and "B-1," records, p. 9.

Id.

People v. Sullano, G.R. No. 125896, May 11, 2000, 387 Phil.
668, 682 (2000).

above-named accused, by forcefully covering the face of Martina Lourdes


T. Albano with a piece of cloth soaked in chemical with dizzying effects,
did then and there willfully, unlawfully and feloniously commenced the
commission of rape by lying on top of her with the intention to have carnal
knowledge with her but was unable to perform all the acts of execution by
reason of some cause or accident other than his own spontaneous
desistance, said acts being committed against her will and consent to her
damage and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by counsel,
pleaded "Not Guilty."5 Thereafter, trial on the merits ensued.

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 138033

February 22, 2006

RENATO BALEROS, JR., Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari, petitioner Renato Baleros, Jr.
assails and seeks the reversal of the January 13, 1999 decision 1 of the
Court of Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March
31, 1999 resolution2 denying petitioners motion for reconsideration.
The assailed decision affirmed an earlier decision of the Regional Trial
Court (RTC) of Manila, Branch 2, in Criminal Case No. 91-101642 finding
petitioner Renato Baleros, Jr. y David (CHITO) guilty of attempted rape. 3
The accusatory portion of the information4 dated December 17, 1991
charging petitioner with attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13 December
1991 in Manila and within the jurisdiction of this Honorable Court, the

To prove its case, the prosecution presented thirteen (13) witnesses.


Among them were private complainant Martina Lourdes Albano (Malou),
and her classmates, Joseph Bernard Africa, Rommel Montes, Renato
Alagadan and Christian Alcala. Their testimonies, as narrated in some
detail in the decision of the CA, established the following facts:
Like most of the tenants of the Celestial Marie Building (hereafter
"Building", ) along A.H. Lacson Street, Sampaloc, Manila, MALOU,
occupying Room 307 with her maid, Marvilou Bebania (Marvilou), was a
medical student of the University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around
10:30. Outside, right in front of her bedroom door, her maid, Marvilou,
slept on a folding bed.
Early morning of the following day, MALOU was awakened by the smell of
chemical on a piece of cloth pressed on her face. She struggled but could
not move. Somebody was pinning her down on the bed, holding her
tightly. She wanted to scream for help but the hands covering her mouth
with cloth wet with chemicals were very tight (TSN, July 5, 1993, p. 33).
Still, MALOU continued fighting off her attacker by kicking him until at last
her right hand got free. With this the opportunity presented itself when
she was able to grab hold of his sex organ which she then squeezed.
The man let her go and MALOU went straight to the bedroom door and
roused Marvilou. xxx. Over the intercom, MALOU told S/G Ferolin that:
"may pumasok sa kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who it was
she did not, however, know. The only thing she had made out during their
struggle was the feel of her attackers clothes and weight. His upper
garment was of cotton material while that at the lower portion felt smooth
and satin-like (Ibid, p. 17). He was wearing a t-shirt and shorts
Original Records, p. 355).

To Room 310 of the Building where her classmates Christian Alcala,


Bernard Baptista, Lutgardo Acosta and Rommel Montes were staying,
MALOU then proceeded to seek help. xxx.
It was then when MALOU saw her bed topsy-turvy. Her nightdress was
stained with blue (TSN, July 5, 1993, pp. 13-14). Aside from the
window with grills which she had originally left opened, another window
inside her bedroom was now open. Her attacker had fled from her room
going through the left bedroom window (Ibid, Answers to Question number
5; Id), the one without iron grills which leads to Room 306 of the Building
(TSN, July 5, 1993, p.6).
xxx xxx xxx
Further, MALOU testified that her relation with CHITO, who was her
classmate , was friendly until a week prior to the attack. CHITO
confided his feelings for her, telling her: "Gusto kita, mahal kita" (TSN,
July 5, 1993, p. 22) and she rejected him. . (TSN, July 5, 1993, p. 22).

xxx xxx xxx


Joseph was already inside Room 306 at 9 oclock in the evening of
December 12, 1991. xxx by the time CHITOs knocking on the door woke
him up, . He was able to fix the time of CHITOs arrival at 1:30 A.M.
because he glanced at the alarm clock beside the bed when he was
awakened by the knock at the door .
Joseph noticed that CHITO was wearing dark-colored shorts and white Tshirt (Ibid., p. 23) when he let the latter in. . It was at around 3 oclock in
the morning of December 13, 1991 when he woke up again later to the
sound of knocking at the door, this time, by Bernard Baptista (Bernard),
.
xxx. With Bernard, Joseph then went to MALOUs room and thereat was
shown by Bernard the open window through which the intruder
supposedly passed.
xxx xxx xxx

Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived


at the Building at 1:30 in the early morning of December 13, 1991,
wearing a white t-shirt with a marking on the front of the T-shirt T M
and a Greek letter (sic) and below the quoted letters the word 1946
UST Medicine and Surgery (TSN, October 9, 1992, p. 9) and black
shorts with the brand name Adidas (TSN, October 16, 1992, p.7) and
requested permission to go up to Room 306. This Unit was being leased
by Ansbert Co and at that time when CHITO was asking permission to
enter, only Joseph Bernard Africa was in the room.
He asked CHITO to produce the required written authorization and when
CHITO could not, S/G Ferolin initially refused [but later, relented] . S/G
Ferolin made the following entry in the security guards logbook :
"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have
(sic) a Request letter from our tenant of Unit #-306 Ansbert, but still I let
him inter (sic) for the reason that he will be our tenant this coming summer
break as he said so I let him sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was
corroborated by Joseph Bernard Africa (Joseph), .

Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph


was finally able to talk to CHITO . He mentioned to the latter that
something had happened and that they were not being allowed to get out
of the building. Joseph also told CHITO to follow him to Room 310.
CHITO did just that. He followed after Joseph to Unit 310, carrying his
gray bag. xxx. None was in Room 310 so Joseph went to their yet another
classmate, Renato Alagadan at Room 401 to see if the others were there.
xxx.
People from the CIS came by before 8 oclock that same morning .
They likewise invited CHITO and Joseph to go with them to Camp Crame
where the two (2) were questioned .
An occupant of Room 310 Christian Alcala (Christian) recalled in Court
that in the afternoon of December 13, 1991, after their 3:30 class, he and
his roommates, Bernard Baptista and Lutgardo Acosta (Gary) were called
to the Building and were asked by the CIS people to look for anything not
belonging to them in their Unit. While they were outside Room 310 talking
with the authorities, Rommel Montes (Loyloy), another roommate of his,
went inside to search the Unit. Loyloy found (TSN, January 12, 1993, p. 6)
a gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their unit
which they did not know was there and surrender the same to the
investigators. When he saw the gray bag, Christian knew right away that it

belonged to CHITO (Ibid, p. 55) as he had seen the latter usually bringing
it to school inside the classroom (Ibid, p. 45).

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


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

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.

Exh. D One (1) printed handkerchief.


Exh. E One (1) white T-shirt marked TMZI.
Exh. F One (1) black short (sic) marked ADIDAS.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic), non-volatile and/or metallic
poison on the above stated specimens.
FINDINGS:
Toxicological examination conducted on the above stated specimens gave
the following results:
Exhs. C and D POSITIVE to the test for chloroform, a volatile poison.
Exhs. A, B, E and F are insufficient for further analysis.
CONCLUSION:

xxx xxx xxx.

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


added)

The forensic Chemist, Leslie Chambers, of the Philippine National Police


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

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

In December of 1991, CHITO was a medical student of (UST). With


Robert Chan and Alberto Leonardo, he was likewise a member of the Tau
Sigma Phi Fraternity . MALOU, , was known to him being also a
medical student at the UST at the time.
From Room 306 of the Celestial Marie Building , CHITO, wearing the
prescribed barong tagalog over dark pants and leather shoes, arrived at
their Fraternity house located at Dos Castillas, Sampaloc, Manila at

about 7 oclock in the evening of December 12, 1991. He was included in


the entourage of some fifty (50) fraternity members scheduled for a
Christmas gathering at the house of their senior fraternity brother, Dr. Jose
Duran, at No. 3 John Street, North Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming pool .
Soon after, the four (4) presidential nominees of the Fraternity, CHITO
included, were being dunked one by one into the pool. xxx.
xxx CHITO had anticipated his turn and was thus wearing his t-shirt
and long pants when he was dunked. Perla Duran, , offered each dry
clothes to change into and CHITO put on the white t-shirt with the
Fraternitys symbol and a pair of black shorts with stripes. xxx .
Again riding on Albertos car and wearing "barong tagalog over a white tshirt with the symbol TAU Sigma Phi, black short pants with stripe, socks
and shoes" (TSN, April 25, 1994, p. 15), CHITO left the party with Robert
Chan and Alberto at more or less past 1 A.M. of December 13, 1991 and
proceeded to the Building which they reached at about 1:30 A.M. (Ibid., p.
19). He had left his gray traveling bag containing "white t-shirt, sando,
underwear, socks, and toothbrush (Ibid., pp. 17-18) at room 306 in the
afternoon of the previous day .
At the gate of the Building, CHITO knocked and , S/G Ferolin, looking at
his watch, approached. Because of this, CHITO also looked at his own
watch and saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin initially
refused CHITO entry . xxx.
S/G Ferolin called Unit 306 . xxx. When S/G Ferolin finally let him in,
already about ten (10) minutes had lapsed since CHITO first arrived (Ibid.,
p. 25).
CHITO went up the floor, found the key left for him by Joseph behind the
opened jalousie window and for five (5) minutes vainly tried to open the
door until Rommel Montes, approached him and even commented:
"Okey ang suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29).
Rommel tried to open the door of Unit 306 but was likewise
unsuccessful. CHITO then decided to just call out to Joseph while
knocking at the door.
It took another (5) minutes of calling out and knocking before Joseph, ,
at last answered the door. Telling him, "Ikaw na ang bahala diyan" Joseph
immediately turned his back on CHITO and went inside the bedroom.
CHITO , changed to a thinner shirt and went to bed. He still had on the

same short pants given by Perla Duran from the fraternity party (TSN,
June 16, 1994, p. 20).
At 6 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

met, hence, he should be acquitted on the ground that the offense


charged against him has not been proved beyond reasonable
doubt.
Otherwise stated, the basic issue in this case turns on the question on
whether or not the CA erred in affirming the ruling of the RTC finding
petitioner guilty beyond reasonable doubt of the crime of attempted rape.
After a careful review of the facts and evidence on record in the light of
applicable jurisprudence, the Court is disposed to rule for petitioners
acquittal, but not necessarily because there is no direct evidence pointing
to him as the intruder holding a chemical-soaked cloth who pinned Malou
down on the bed in the early morning of December 13, 1991.
Positive identification pertains essentially to proof of identity and not per
se to that of being an eyewitness to the very act of commission of the
crime. There are two types of positive identification. A witness may identify
a suspect or accused as the offender as an eyewitness to the very act of
the commission of the crime. This constitutes direct evidence. There may,
however, be instances where, although a witness may not have actually
witnessed the very act of commission of a crime, he may still be able to
positively identify a suspect or accused as the perpetrator of a crime as
when, for instance, the latter is the person or one of the persons last seen
with the victim immediately before and right after the commission of the
crime. This is the second type of positive identification, which forms part of
circumstantial evidence.13 In the absence of direct evidence, the
prosecution may resort to adducing circumstantial evidence to discharge
its burden. Crimes are usually committed in secret and under condition
where concealment is highly probable. If direct evidence is insisted under
all circumstances, the prosecution of vicious felons who committed
heinous crimes in secret or secluded places will be hard, if not well-nigh
impossible, to prove.14
Section 4 of Rule 133 of the Rules of Court provides the conditions when
circumstantial evidence may be sufficient for conviction. The provision
reads:
Sec. 4. Circumstantial evidence, when sufficient Circumstantial
evidence is sufficient for conviction if
a) There is more than one circumstance;
b) The facts from which the inferences are derived are proven;
and

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


a conviction beyond reasonable doubt.
In the present case, the positive identification of the petitioner forms part
of circumstantial evidence, which, when taken together with the other
pieces of evidence constituting an unbroken chain, leads to only fair and
reasonable conclusion, which is that petitioner was the intruder in
question.
We quote with approval the CAs finding of the circumstantial evidence
that led to the identity of the petitioner as such intruder:
Chito was in the Building when the attack on MALOU took place. He had
access to the room of MALOU as Room 307 where he slept the night over
had a window which allowed ingress and egress to Room 306 where
MALOU stayed. Not only the Building security guard, S/G Ferolin, but
Joseph Bernard Africa as well confirmed that CHITO was wearing a black
"Adidas" shorts and fraternity T-shirt when he arrived at the Building/Unit
307 at 1:30 in the morning of December 13, 1991. Though it was dark
during their struggle, MALOU had made out the feel of her intruders
apparel to be something made of cotton material on top and shorts that
felt satin-smooth on the bottom.
From CHITOs bag which was found inside Room 310 at the very spot
where witness Renato Alagadan saw CHITO leave it, were discovered the
most incriminating evidence: the handkerchief stained with blue and wet
with some kind of chemicals; a black "Adidas" satin short pants; and a
white fraternity T-shirt, also stained with blue. A different witness, this time,
Christian Alcala, identified these garments as belonging to CHITO. As it
turned out, laboratory examination on these items and on the beddings
and clothes worn by MALOU during the incident revealed that the
handkerchief and MALOUs night dress both contained chloroform, a
volatile poison which causes first degree burn exactly like what MALOU
sustained on that part of her face where the chemical-soaked cloth had
been pressed.
This brings the Court to the issue on whether the evidence adduced by
the prosecution has established beyond reasonable doubt the guilt of the
petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner, by pressing on Malous
face the piece of cloth soaked in chemical while holding her body tightly
under the weight of his own, had commenced the performance of an act
indicative of an intent or attempt to rape the victim. It is argued that
petitioners actuation thus described is an overt act contemplated under

the law, for there can not be any other logical conclusion other than that
the petitioner intended to ravish Malou after he attempted to put her to an
induced sleep. The Solicitor General, echoing what the CA said, adds that
if 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

Lest it be misunderstood, the Court is not saying that petitioner is


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

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.

Penned by Associate Justice Martin S. Villarama, Jr. and


concurred in by Associate Justices Romeo A. Brawner (ret.) and
Eloy R. Bello, Jr. (ret.); Rollo, pp. 198-237.

20

Rollo, pp. 222-223.

21

People vs. Canlas, et al., 423 Phil. 665 (2001).

Id., p. 273.

22

431 Phil. 786 (2002).

Id., pp. 120-155.

23

416 SCRA 506 (2003).

Original Records, pp. 1-3.

24

Sec. 14(2), Art. III.

Id., p. 42.

25

Aquino, Revised Penal Code, 1997 ed., Vol. III, p. 81.

Rollo, pp. 201-212.

26

TSN, December 15, 1993, pp. 18-19; TSN, December 20, 1993,
pp. 23-24.
8

TSN, January 17, 1994, pp. 7-10.

TSN, January 17, 1994, p. 24.

10

Rollo, pp. 120-155.

11

See Note #1, supra.

12

See Note #2, supra.

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

Comment, pp. 20-21; Rollo, pp. 302-303.

16

People vs. Campuhan, 385 Phil. 912 (2000).

17

61 Phil. 703, 705 (1935).

18

Ibid.

19

Reyes, The Revised Penal Code, 1998 Edition, p. 91.

Ibid., citing People vs. Lilian Gozum, CA 54 O.G. 7409; People


vs. Reyes, 60 Phil. 369 [1934].

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.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G. R. No. 160188

June 21, 2007

ARISTOTEL VALENZUELA y NATIVIDAD, petitioner,


vs.
PEOPLE OF THE PHILIPPINES and HON. COURT OF APPEALS
NACHURA, respondents.
DECISION
TINGA, J.:
This case aims for prime space in the firmament of our criminal law
jurisprudence. Petitioner effectively concedes having performed the
felonious acts imputed against him, but instead insists that as a result, he
should be adjudged guilty of frustrated theft only, not the felony in its
consummated stage of which he was convicted. The proposition rests on
a common theory expounded in two well-known decisions 1 rendered
decades ago by the Court of Appeals, upholding the existence of
frustrated theft of which the accused in both cases were found guilty.
However, the rationale behind the rulings has never been affirmed by this
Court.

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

convicted of frustrated theft since at the time he was apprehended, he


was never placed in a position to freely dispose of the articles
stolen.20 However, in its Decision dated 19 June 2003, 21 the Court of
Appeals
rejected
this
contention
and
affirmed
petitioners
conviction.22 Hence the present Petition for Review,23 which expressly
seeks that petitioners conviction "be modified to only of Frustrated
Theft."24
Even in his appeal before the Court of Appeals, petitioner effectively
conceded both his felonious intent and his actual participation in the theft
of several cases of detergent with a total value of P12,090.00 of which he
was charged.25 As such, there is no cause for the Court to consider a
factual scenario other than that presented by the prosecution, as affirmed
by the RTC and the Court of Appeals. The only question to consider is
whether under the given facts, the theft should be deemed as
consummated or merely frustrated.
II.
In arguing that he should only be convicted of frustrated theft, petitioner
cites26 two decisions rendered many years ago by the Court of Appeals:
People v. Dio27 and People v. Flores.28 Both decisions elicit the interest of
this Court, as they modified trial court convictions from consummated to
frustrated theft and involve a factual milieu that bears similarity to the
present case. Petitioner invoked the same rulings in his appeal to the
Court of Appeals, yet the appellate court did not expressly consider the
import of the rulings when it affirmed the conviction.
It is not necessary to fault the Court of Appeals for giving short shrift to the
Dio and Flores rulings since they have not yet been expressly adopted
as precedents by this Court. For whatever reasons,
the occasion to define or debunk the crime of frustrated theft has not
come to pass before us. Yet despite the silence on our part, Dio and
Flores have attained a level of renown reached by very few other
appellate court rulings. They are comprehensively discussed in the most
popular of our criminal law annotations, 29 and studied in criminal law
classes as textbook examples of frustrated crimes or even as definitive of
frustrated theft.
More critically, the factual milieu in those cases is hardly akin to the
fanciful scenarios that populate criminal law exams more than they
actually occur in real life. Indeed, if we finally say that Dio and Flores are
doctrinal, such conclusion could profoundly influence a multitude of
routine theft prosecutions, including commonplace shoplifting. Any

scenario that involves the thief having to exit with the stolen property
through a supervised egress, such as a supermarket checkout counter or
a parking area pay booth, may easily call for the application of Dio and
Flores. The fact that lower courts have not hesitated to lay down
convictions for frustrated theft further validates that Dio and Flores and
the theories offered therein on frustrated theft have borne some weight in
our jurisprudential system. The time is thus ripe for us to examine whether
those theories are correct and should continue to influence prosecutors
and judges in the future.
III.
To delve into any extended analysis of Dio and Flores, as well as the
specific issues relative to "frustrated theft," it is necessary to first refer to
the basic rules on the three stages of crimes under our Revised Penal
Code.30
Article 6 defines those three stages, namely the consummated, frustrated
and attempted felonies. A felony is consummated "when all the elements
necessary for its execution and accomplishment are present." It is
frustrated "when the offender performs all the acts of execution which
would produce the felony as a consequence but which, nevertheless, do
not produce it by reason of causes independent of the will of the
perpetrator." Finally, it is attempted "when the offender commences the
commission of a felony directly by overt acts, and does not perform all the
acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance."
Each felony under the Revised Penal Code has a "subjective phase," or
that portion of the acts constituting the crime included between the act
which begins the commission of the crime and the last act performed by
the offender which, with prior acts, should result in the consummated
crime.31 After that point has been breached, the subjective phase ends
and the objective phase begins. 32 It has been held that if the offender
never passes the subjective phase of the offense, the crime is merely
attempted.33 On the other hand, the subjective phase is completely
passed in case of frustrated crimes, for in such instances, "[s]ubjectively
the crime is complete."34
Truly, an easy distinction lies between consummated and frustrated
felonies on one hand, and attempted felonies on the other. So long as the
offender fails to complete all the acts of execution despite commencing
the commission of a felony, the crime is undoubtedly in the attempted
stage. Since the specific acts of execution that define each crime under
the Revised Penal Code are generally enumerated in the code itself, the

task of ascertaining whether a crime is attempted only would need to


compare the acts actually performed by the accused as against the acts
that constitute the felony under the Revised Penal Code.
In contrast, the determination of whether a crime is frustrated or
consummated necessitates an initial concession that all of the acts of
execution have been performed by the offender. The critical distinction
instead is whether the felony itself was actually produced by the acts of
execution. The determination of whether the felony was "produced" after
all the acts of execution had been performed hinges on the particular
statutory definition of the felony. It is the statutory definition that generally
furnishes the elements of each crime under the Revised Penal Code,
while the elements in turn unravel the particular requisite acts of execution
and accompanying criminal intent.
The long-standing Latin maxim "actus non facit reum, nisi mens sit rea"
supplies an important characteristic of a crime, that "ordinarily, evil intent
must unite with an unlawful act for there to be a crime," and accordingly,
there can be no crime when the criminal mind is wanting. 35 Accepted in
this jurisdiction as material in crimes mala in se, 36 mens rea has been
defined before as "a guilty mind, a guilty or wrongful purpose or criminal
intent,"37 and "essential for criminal liability." 38 It follows that the statutory
definition of our mala in se crimes must be able to supply what the mens
rea of the crime is, and indeed the U.S. Supreme Court has comfortably
held that "a criminal law that contains no mens rea requirement infringes
on constitutionally protected rights."39 The criminal statute must also
provide for the overt acts that constitute the crime. For a crime to exist in
our legal law, it is not enough that mens rea be shown; there must also be
an actus reus.40
It is from the actus reus and the mens rea, as they find expression in the
criminal statute, that the felony is produced. As a postulate in the
craftsmanship of constitutionally sound laws, it is extremely preferable that
the language of the law expressly provide when the felony is produced.
Without such provision, disputes would inevitably ensue on the elemental
question whether or not a crime was committed, thereby presaging the
undesirable and legally dubious set-up under which the judiciary is
assigned the legislative role of defining crimes. Fortunately, our Revised
Penal Code does not suffer from such infirmity. From the statutory
definition of any felony, a decisive passage or term is embedded which
attests when the felony is produced by the acts of execution. For example,
the statutory definition of murder or homicide expressly uses the phrase
"shall kill another," thus making it clear that the felony is produced by the
death of the victim, and conversely, it is not produced if the victim
survives.

We next turn to the statutory definition of theft. Under Article 308 of the
Revised Penal Code, its elements are spelled out as follows:
Art. 308. Who are liable for theft. Theft is committed by any person who,
with intent to gain but without violence against or intimidation of persons
nor force upon things, shall take personal property of another without the
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

belonging to another against the will of the owner," 43 a definition similar to


that by Paulus that a thief "handles (touches, moves) the property of
another."44 However, with the Institutes of Justinian, the idea had taken
hold that more than mere physical handling, there must further be an
intent of acquiring gain from the object, thus: "[f]urtum est contrectatio rei
fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus
possessinisve."45 This requirement of animo lucrandi, or intent to gain,
was maintained in both the Spanish and Filipino penal laws, even as it
has since been abandoned in Great Britain.46
In Spanish law, animo lucrandi was compounded with apoderamiento, or
"unlawful taking," to characterize theft. Justice Regalado notes that the
concept of apoderamiento once had a controversial interpretation and
application. Spanish law had already discounted the belief that mere
physical taking was constitutive of apoderamiento, finding that it had to be
coupled with "the intent to appropriate the object in order to constitute
apoderamiento; and to appropriate means to deprive the lawful owner of
the thing."47 However, a conflicting line of cases decided by the Court of
Appeals ruled, alternatively, that there must be permanency in the
taking48 or an intent to permanently deprive the owner of the stolen
property;49 or that there was no need for permanency in the taking or in its
intent, as the mere temporary possession by the offender or disturbance
of the proprietary rights of the owner already constituted
apoderamiento.50 Ultimately, as Justice Regalado notes, the Court
adopted the latter thought that there was no need of an intent to
permanently deprive the owner of his property to constitute an unlawful
taking.51
So long as the "descriptive" circumstances that qualify the taking are
present, including animo lucrandi and apoderamiento, the completion of
the operative act that is the taking of personal property of another
establishes, at least, that the transgression went beyond the attempted
stage. As applied to the present case, the moment petitioner obtained
physical possession of the cases of detergent and loaded them in the
pushcart, such seizure motivated by intent to gain, completed without
need to inflict violence or intimidation against persons nor force upon
things, and accomplished without the consent of the SM Super Sales
Club, petitioner forfeited the extenuating benefit a conviction for only
attempted theft would have afforded him.
On the critical question of whether it was consummated or frustrated theft,
we are obliged to apply Article 6 of the Revised Penal Code to ascertain
the answer. Following that provision, the theft would have been frustrated
only, once the acts committed by petitioner, if ordinarily sufficient to
produce theft as a consequence, "do not produce [such theft] by reason of
causes independent of the will of the perpetrator." There are clearly two

determinative factors to consider: that the felony is not "produced," and


that such failure is due to causes independent of the will of the
perpetrator. The second factor ultimately depends on the evidence at
hand in each particular case. The first, however, relies primarily on a
doctrinal definition attaching to the individual felonies in the Revised Penal
Code52 as to when a particular felony is "not produced," despite the
commission of all the acts of execution.
So, in order to ascertain whether the theft is consummated or frustrated, it
is necessary to inquire as to how exactly is the felony of theft "produced."
Parsing through the statutory definition of theft under Article 308, there is
one apparent answer provided in the language of the law that theft is
already "produced" upon the "tak[ing of] personal property of another
without the latters consent."
U.S. v. Adiao53 apparently supports that notion. Therein, a customs
inspector was charged with theft after he abstracted a leather belt from
the baggage of a foreign national and secreted the item in his desk at the
Custom House. At no time was the accused able to "get the merchandise
out of the Custom House," and it appears that he "was under observation
during the entire transaction."54 Based apparently on those two
circumstances, the trial court had found him guilty, instead, of frustrated
theft. The Court reversed, saying that neither circumstance was decisive,
and holding instead that the accused was guilty of consummated theft,
finding that "all the elements of the completed crime of theft are
present."55 In support of its conclusion that the theft was consummated,
the Court cited three (3) decisions of the Supreme Court of Spain, the
discussion of which we replicate below:
The defendant was charged with the theft of some fruit from the land of
another. As he was in the act of taking the fruit[,] he was seen by a
policeman, yet it did not appear that he was at that moment caught by the
policeman but sometime later. The court said: "[x x x] The trial court did
not err [x x x ] in considering the crime as that of consummated theft
instead of frustrated theft inasmuch as nothing appears in the record
showing that the policemen who saw the accused take the fruit from the
adjoining land arrested him in the act and thus prevented him from taking
full possession of the thing stolen and even its utilization by him for an
interval of time." (Decision of the Supreme Court of Spain, October 14,
1898.)
Defendant picked the pocket of the offended party while the latter was
hearing mass in a church. The latter on account of the solemnity of the
act, although noticing the theft, did not do anything to prevent it.
Subsequently, however, while the defendant was still inside the church,
the offended party got back the money from the defendant. The court said

that the defendant had performed all the acts of execution and considered
the theft as consummated. (Decision of the Supreme Court of Spain,
December 1, 1897.)
The defendant penetrated into a room of a certain house and by means of
a key opened up a case, and from the case took a small box, which was
also opened with a key, from which in turn he took a purse containing 461
reales and 20 centimos, and then he placed the money over the cover of
the case; just at this moment he was caught by two guards who were
stationed in another room near-by. The court considered this as
consummated robbery, and said: "[x x x] The accused [x x x] having
materially taken possession of the money from the moment he took it from
the place where it had been, and having taken it with his hands with intent
to appropriate the same, he executed all the acts necessary to constitute
the crime which was thereby produced; only the act of making use of the
thing having been frustrated, which, however, does not go to make the
elements of the consummated crime." (Decision of the Supreme Court of
Spain, June 13, 1882.)56
It is clear from the facts of Adiao itself, and the three (3) Spanish decisions
cited therein, that the criminal actors in all these cases had been able to
obtain full possession of the personal property prior to their apprehension.
The interval between the commission of the acts of theft and the
apprehension of the thieves did vary, from "sometime later" in the 1898
decision; to the very moment the thief had just extracted the money in a
purse which had been stored as it was in the 1882 decision; and before
the thief had been able to spirit the item stolen from the building where the
theft took place, as had happened in Adiao and the 1897 decision. Still,
such intervals proved of no consequence in those cases, as it was ruled
that the thefts in each of those cases was consummated by the actual
possession of the property belonging to another.
In 1929, the Court was again confronted by a claim that an accused was
guilty only of frustrated rather than consummated theft. The case is
People v. Sobrevilla,57 where the accused, while in the midst of a crowd in
a public market, was already able to abstract a pocketbook from the
trousers of the victim when the latter, perceiving the theft, "caught hold of
the [accused]s shirt-front, at the same time shouting for a policeman; after
a struggle, he recovered his pocket-book and let go of the defendant, who
was afterwards caught by a policeman."58 In rejecting the contention that
only frustrated theft was established, the Court simply said, without further
comment or elaboration:
We believe that such a contention is groundless. The [accused]
succeeded in taking the pocket-book, and that determines the crime of
theft. If the pocket-book was afterwards recovered, such recovery does

not affect the [accuseds] criminal liability, which arose from the [accused]
having succeeded in taking the pocket-book.59

que se haya producido en toda su extension, sin materializar demasiado


el acto de tomar la cosa ajena.62

If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme


Court cases cited in the latter, in that the fact that the offender was able to
succeed in obtaining physical possession of the stolen item, no matter
how momentary, was able to consummate the theft.

Integrating these considerations, the Court of Appeals then concluded:

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.

However, the crime committed is only frustrated qualified theft because


petitioners were not able to perform all the acts of execution which should
have produced the felony as a consequence. They were not able to carry
the coconuts away from the plantation due to the timely arrival of the
owner.80

Thus, Empelis does not compel us that it is an insurmountable given that


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

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

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:

La doctrina hoy generalmente sustentada considera que el hurto se


consuma cuando la cosa queda de hecho a la disposicin del agente.
Con este criterio coincide la doctrina sentada ltimamente porla
jurisprudencia espaola que generalmente considera consumado el hurto
cuando el culpable coge o aprehende la cosa y sta quede por tiempo
ms o menos duradero bajo su poder. El hecho de que ste pueda
aprovecharse o no de lo hurtado es indiferente. El delito no pierde su
carcter de consumado aunque la cosa hurtada sea devuelta por el
culpable o fuere recuperada. No se concibe la frustracin, pues es muy
dificil que el que hace cuanto es necesario para la consumacin del hurto
no lo consume efectivamente, los raros casos que nuestra jurisprudencia,
muy vacilante, declara hurtos frustrados son verdaderos delitos
consumados.87 (Emphasis supplied)
Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who
was content with replicating the Spanish Supreme Court decisions on the
matter, Cuello Caln actually set forth his own thought that questioned
whether theft could truly be frustrated, since "pues es muy dificil que el
que hace cuanto es necesario para la consumacin del hurto no lo
consume efectivamente." Otherwise put, it would be difficult to foresee
how the execution of all the acts necessary for the completion of the crime
would not produce the effect of theft.
This divergence of opinion convinces us, at least, that there is no
weighted force in scholarly thought that obliges us to accept frustrated
theft, as proposed in Dio and Flores. A final ruling by the Court that there
is no crime of frustrated theft in this jurisdiction will not lead to scholastic
pariah, for such a submission is hardly heretical in light of Cuello Calns
position.
Accordingly, it would not be intellectually disingenuous for the Court to
look at the question from a fresh perspective, as we are not bound by the
opinions of the respected Spanish commentators, conflicting as they are,
to accept that theft is capable of commission in its frustrated stage.
Further, if we ask the question whether there is a mandate of statute or
precedent that must compel us to adopt the Dio and Flores doctrines, the
answer has to be in the negative. If we did so, it would arise not out of
obeisance to an inexorably higher command, but from the exercise of the
function of statutory interpretation that comes as part and parcel of judicial
review, and a function that allows breathing room for a variety of theorems
in competition until one is ultimately adopted by this Court.
V.

The foremost predicate that guides us as we explore the matter is that it


lies in the province of the legislature, through statute, to define what
constitutes a particular crime in this jurisdiction. It is the legislature, as
representatives of the sovereign people, which determines which acts or
combination of acts are criminal in nature. Judicial interpretation of penal
laws should be aligned with what was the evident legislative intent, as
expressed primarily in the language of the law as it defines the crime. It is
Congress, not the courts, which is to define a crime, and ordain its
punishment.88 The courts cannot arrogate the power to introduce a new
element of a crime which was unintended by the legislature, or redefine a
crime in a manner that does not hew to the statutory language. Due
respect for the prerogative of Congress in defining crimes/felonies
constrains the Court to refrain from a broad interpretation of penal laws
where a "narrow interpretation" is appropriate. "The Court must take heed
of language, legislative history and purpose, in order to strictly determine
the wrath and breath of the conduct the law forbids." 89
With that in mind, a problem clearly emerges with the Dio/Flores dictum.
The ability of the offender to freely dispose of the property stolen is not a
constitutive element of the crime of theft. It finds no support or extension
in Article 308, whether as a descriptive or operative element of theft or as
the mens rea or actus reus of the felony. To restate what this Court has
repeatedly held: the elements of the crime of theft as provided for in
Article 308 of the Revised Penal Code are: (1) that there be taking of
personal property; (2) that said property belongs to another; (3) that the
taking be done with intent to gain; (4) that the taking be done without the
consent of the owner; and (5) that the taking be accomplished without the
use of violence against or intimidation of persons or force upon things. 90
Such factor runs immaterial to the statutory definition of theft, which is the
taking, with intent to gain, of personal property of another without the
latters consent. While the Dio/Flores dictum is considerate to the
mindset of the offender, the statutory definition of theft considers only the
perspective of intent to gain on the part of the offender, compounded by
the deprivation of property on the part of the victim.
For the purpose of ascertaining whether theft is susceptible of commission
in the frustrated stage, the question is again, when is the crime of theft
produced? There would be all but certain unanimity in the position that
theft is produced when there is deprivation of personal property due to its
taking by one with intent to gain. Viewed from that perspective, it is
immaterial to the product of the felony that the offender, once having
committed all the acts of execution for theft, is able or unable to freely
dispose of the property stolen since the deprivation from the owner alone
has already ensued from such acts of execution. This conclusion is
reflected in Chief Justice Aquinos commentaries, as earlier cited, that "[i]n

theft or robbery the crime is consummated after the accused had material
possession of the thing with intent to appropriate the same, although his
act of making use of the thing was frustrated." 91
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.

Or, more likely, the appreciation of several classes of factual


circumstances such as the size and weight of the property, the location of
the property, the number and identity of people present at the scene of the
crime, the number and identity of people whom the offender is expected to
encounter upon fleeing with the stolen property, the manner in which the
stolen item had been housed or stored; and quite frankly, a whole lot
more. Even the fungibility or edibility of the stolen item would come into
account, relevant as that would be on whether such property is capable of
free disposal at any stage, even after the taking has been consummated.

WHEREFORE, the petition is DENIED. Costs against petitioner.

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

See infra, People v. Dio and People v. Flores.

Not accounting for those unpublished or unreported decisions, in


the one hundred year history of this Court, which could no longer
be retrieved from the Philippine Reports or other secondary
sources, due to their wholesale destruction during the Second
World War or for other reasons.
3

See People v. Adiao, infra. There have been a few cases


wherein the Court let stand a conviction for frustrated theft, yet in
none of those cases was the issue squarely presented that theft
could be committed at its frustrated stage. See People v. Abuyen,
52 Phil. 722 (1929); People v. Flores, 63 Phil. 443 (1936); and
People v. Tapang, 88 Phil. 721 (1951). In People v. Argel G.R. No.
L-45975, 25 May 1981, 192 SCRA 21, the Court did tacitly accept
the viability of a conviction for frustrated theft, though the issue
expounded on by the Court pertained to the proper appellate
jurisdiction over such conviction.
It would indeed be error to perceive that convictions for frustrated
theft are traditionally unconventional in this jurisdiction, as such
have routinely been handed down by lower courts, as a survey of
jurisprudence would reveal. Still, the plain fact remains that this
Court , since Adiao in 1918, has yet to directly rule on the legal

foundation of frustrated theft, or even discuss such scenario by


way of dicta.
In passing, we take note of a recent decision of the Court of
Appeals in People v. Concepcion, C.A. G.R. CR No. 28280, 11
July
2005
(See
at
http://ca.supremecourt.gov.ph
/cardis/CR28280.pdf), where the appellate court affirmed a
conviction for frustrated theft, the accused therein having been
caught inside Meralco property before he could flee with some
copper electrical wire. However, in the said decision, the accused
was charged at the onset with frustrated theft, and the Court of
Appeals did not inquire why the crime committed was only
frustrated theft. Moreover, the charge for theft was not under the
Revised Penal Code, but under Rep. Act No. 7832, a special law.
4

53 Phil. 226 (1929).

217 Phil. 377 (1984).

Records, pp. 1-2.

Rollo, pp. 21-22.

Id. at 22.

See id. at 472.

10

See Records, pp. 7-14. A brief comment is warranted regarding


these four (4) other apparent suspects. The affidavits and sworn
statements that were executed during the police investigation by
security guards Lago and Vivencio Yanson, by SM employee
Adelio Nakar, and by the taxi driver whose cab had been hailed to
transport the accused, commonly point to all six as co-participants
in the theft of the detergents. It is not explained in the record why
no charges were brought against the four (4) other suspects, and
the prosecutions case before the trial court did not attempt to
draw in any other suspects other than petitioner and Calderon. On
the other hand, both petitioner and Calderon claimed during trial
that they were innocent bystanders who happened to be in the
vicinity of the Super Sale Club at the time of the incident when
they were haled in, along with the four (4) other suspects by the
security guards in the resulting confusion. See infra. However,
both petitioner and Calderon made no move to demonstrate that
the non-filing of the charges against the four (4) other suspects
somehow bolstered their plea of innocence.

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

Also identified in the case record as "Rosalada" or "Rosullado."


He happened to be among the four (4) other suspects also
apprehended at the scene and brought for investigation to the
Baler PNP Station. See id. Rosulada also testified in court in
behalf of Calderon. See Records, pp. 357-390.
12

Records, pp. 330-337.

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

No. 924-R, 18 February 1948, 45 O.G. 3446.

28

6 C.A. Rep. 2d 835 (1964).

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

Act No. 3185, as amended.

31

See People v. Caballero, 448 Phil. 514, 534 (2003). Reyes


defines the final point of the subjective phase as "that point where
[the offender] still has control over his acts, including their (acts)
natural course." See L.B. Reyes, I The Revised Penal Code:
Criminal Law (13th Ed., 2001), at 101.

14

Rollo, p. 25.

15

Records, pp. 424-425.

16

Id. at 472-474; Penned by Judge Reynaldo B. Daway.

See e.g., U.S. v. Eduave, 36 Phil. 209, 212 (1917); People v.


Caballero, id.

17

Id. at 474.

34

18

Id. at 484.

35

19

CA rollo, pp. 54-62.

20

Rollo, p. 25.

32

People v. Caballero, 448 Phil. 514, 534 (2003).

33

U.S. v. Eduave, 36 Phil. 209, 212 (1917).

People v. Pacana, 47 Phil. 48 (1925); cited in Aquino, supra


note 29, at 39. See also Lecaroz v. Sandiganbayan, 364 Phil.
890, 905 (1999).
36

See Padilla v. Dizon, A.C. No. 3086, 23 February 1988, 158


SCRA 127, 135.

21

Id. at 20-27. Penned by Associate Justice Eubolo G. Verzola of


the Court of Appeals Third Division, concurred in by Associate
Justices Martin S. Villarama, Jr. and Mario L. Guaria.

37

22

A motion for reconsideration filed by petitioner was denied by


the Court of Appeals in a Resolution dated 1 October 2003.

38

23

Rollo, pp. 8-15.

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

J. Feliciano, Concurring and Dissenting, Umil v. Ramos, G.R.


No. 81567, 3 October 1991, 202 SCRA 251, 288.

49

People v. Galang, CA, 43 O.G. 577; People v. Rico, CA, 50


O.G. 3103; cf.People v. Roxas, CA-G.R. No. 14953, 31 October
1956, all cited in Regalado, supra note 47 at 521.

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

People v. Fernandez, CA, 38 O.G. 985; People v. Martisano,


CA, 48 O.G. 4417, cited in Regalado, supra note 47 at 521.
51

REgalado, supra note 47 at 521 citing Villacorta v. Insurance


Commission, G.R. No. 54171, 28 October 1980, 100 SCRA
467; Association of Baptists for World Evangelism v. Fieldmens
Ins. Co., No. L-28772, 21 September 1983, 209 Phil. 505 (1983).
See also People v. Bustinera, supra note 42.

42

See People v. Bustinera, G.R. No. 148233, 8 June 2004, 431


SCRA 284, 291, citing People v. Sison, 322 SCRA 345, 363-364
(2000).
43

S. Guevarra, Commentaries on the Revised Penal Code (4th


ed., 1946), at 614.
44

45

52

The distinction being "inconsequential" if the criminal charge is


based on a special law such as the Dangerous Drugs Law.
See e.g., People v. Enriquez, G.R. No. 99838, October 23 1997,
281 SCRA 103, 120.
53

38 Phil. 754 (1918).

54

Id. at 755.

55

Id.

56

Id. at 755-756.

57

Supra note 4.

58

Supra note 4 at 227.

59

Id.

60

People v. Dio, supra note 27 at 3450.

61

Id.

62

Id.

63

Id. at 3451.

64

People v. Flores, supra note 28 at 840.

Id. at 615.
Id. citing Inst. 4, 1, 1.

46

Section 1(2) of the Theft Act of 1968 states: "It is immaterial


whether the appropriation is made with a view to gain, or is made
for the thiefs own benefit." Sir John Smith provides a sensible
rationalization for this doctrine: "Thus, to take examples from the
old law, if D takes Ps letters and puts them down on a lavatory or
backs Ps horse down a mine shaft, he is guilty of theft
notwithstanding the fact that he intends only loss to P and no gain
to himself or anyone else. It might be thought that these instances
could safely and more appropriately have been left to other
branches of the criminal lawthat of criminal damage to property
for instance. But there are cases where there is no such damage
or destruction of the thing as would found a charge under another
Act. For example, D takes Ps diamond and flings it into a deep
pond. The diamond lies unharmed in the pond and a prosecution
for criminal damage would fail. It seems clearly right that D should
be guilty of theft." J. Smith, Smith & Hogan Criminal Law (9th ed.,
1999), at 534.
47

48

F. Regalado, Criminal Law Conspectus (1st ed., 2000), at 520.

People v. Kho Choc, 50 O.G. 1667, cited in Regalado, id. at


521.

65

Id. at 836. The Court of Appeals in Flores did not identify the
character of these stolen merchandise.

They would therefore come within the definition of qualified theft


because the property stolen consists of coconuts "taken from the
premises of a plantation."] Empelis v. IAC, supra note 5, at 379,
380.

66

Id. at 841.

67

Id.

80

Empelis v. IAC, supra note 5, at 380.

68

People v. Dio, supra note 27 at 841.

81

Id.

69

People v. Naval and Beltran, CA 46 O.G. 2641.

82

70

See note 62.

71

Aquino, supra note 29 at 122.

72

Id. at 110.

73

C.A. G.R. No. 20105-R, 4 October 1958, 55 O.G. 1388.

74

Id. at 1391. Citations omitted.

75

CA G.R. No. 2107-R, 31 May 1949.

76

Note the similarity between this holding and the observations of


Chief Justice Aquino in note 72.
77

Reyes, supra note 29 at 113.

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.

Art. 234, Cdigo Penal Espaol de 1995. See Ley Orgnica


10/1995, de 23 de noviembre, del Cdigo Penal,
http://noticias.juridicas.com/base_datos/Penal/lo10-1995.html
(Last visited, 15 April 2007). The traditional qualifier "but without
violence against or intimidation of persons nor force upon things,"
is instead incorporated in the definition of robbery ("robos") under
Articulo 237 of the same Code ("Son reos del delito de robo los
que, con nimo de lucro, se apoderaren de las cosas muebles
ajenas empleando fuerza en las cosas para acceder al lugar
donde stas se encuentran o violencia o intimidacin en las
personas.")
By way of contrast, the Theft Act 1968 of Great Britain defines
theft in the following manner: "A person is guilty of theft if he
dishonestly appropriates property belonging to another with the
intention of permanently depriving the other of it; and thief and
steal shall be construed accordingly." See Section 1(1), Theft Act
1968 (Great Britain). The most notable difference between the
modern British and Spanish laws on theft is the absence in the
former of the element of animo lucrandi. See note 42.
83

1 S. Viada, Codigo Penal Reformado de 1870 (1926 ed) at 103.

84

"Considerando que segn se desprende de la sentencia


recurrida, los dependientes de la sastrera de D. Joaquin Gabino
sorprendieron al penado Juan Gomez Lopez al tomar una capa
que haba en un maniqu, por lo que hubo de arrojarla al suelo,
siendo detenido despues por agentes de la Autoridad yque esto
supuesto es evidente que el delito no aparece realizado en toda
la extensin precisa para poderlo calificar como consumado, etc."
Id. at 103-104.
85

The other examples cited by Viada of frustrated theft are in the


case where the offender was caught stealing potatoes off a field
by storing them in his coat, before he could leave the field where
the potatoes were taken, see Viada (supra note 83, at 103),

where the offender was surprised at the meadow from where he


was stealing firewood, id.

Epifanio y Lazaro (petitioner) guilty of Frustrated Murder, and the CA


Resolution3 dated January 14, 2003 which denied petitioner's Motion for
Reconsideration.

86

E. Cuello Calon, II Derecho Penal (1955 ed.), at 799 (Footnote


1).
87
Id. at 798-799.
88
Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483
SCRA 243, 266, citing United States v. Wiltberger, 18 U.S. 76
(1820).
89
Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483
SCRA 243. See also Dowling v. United States, 473 U.S. 207
(1985).
90
See e.g., People v. Bustinera, supra note 42.
91
Aquino, supra note 29, at 110.
92
People v. Obillo, 411 Phil. 139, 150 (2001); People v. Bernabe,
448 Phil. 269, 280 (2003); People v. Bustinera, supra note 42 at
295.
93
44 Phil. 720 (1923).
94
Id. at 726.
95
Justice Regalado cautions against "putting a premium upon the
pretensions of an accused geared towards obtention of a reduced
penalty." Regalado, supra note 47, at 27.

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. NO. 157057

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

June 26, 2007


2. Fracture 7th and 8th rib, posterior, right.

LEONIDAS EPIFANIO Y LAZARO, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of
the Revised Rules of Court assailing the Decision 1 dated May 22, 2002 of
the Court of Appeals (CA) in CA-G.R. CR No. 17995 which affirmed the
Decision2 dated July 5, 1994 of the Regional Trial Court, Branch 4,
Panabo, Davao (RTC) in Criminal Case No. 91-15 finding Leonidas

Probable healing time will be 15-30 days barring complication. 8


Subsequently, petitioner was charged with Frustrated Murder in Criminal
Case No. 91-15. The Information dated January 4, 1991 reads:
That on or about August 15, 1990, in the Municipality of Samal, Province
of Davao, Philippines, and within the jurisdiction of the Honorable Court,
the above-named accused, with treachery and evident premeditation, with
intent to kill, armed with a knife, did then and there willfully, unlawfully, and
feloniously attack, assault and stab one Crisaldo Alberto, thereby inflicting
upon him wounds which ordinarily would have caused his death, thus the
accused performed all the acts of execution which would produce the

crime of murder, as a consequence but which, nevertheless, did not


produce it by reason of some causes independent of the will of the
accused, that is, by the timely and able medical assistance rendered to
said Crisaldo Alberto, and further causing actual, moral and compensatory
damages to the offended party.

SO ORDERED.13

Contrary to law.9

Petitioner filed a Motion for Reconsideration 16 but it was denied by the CA


in a Resolution17 dated January 14, 2003.

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 appealed his conviction to the CA, docketed as CA-G.R. CR


No. 17995.14 On May 22, 2002, the CA rendered a Decision 15 affirming in
toto the Decision of the RTC.

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

No evidence in this case was introduced to prove that Crisaldo would


have died from his wound without timely medical attendance. It is wellsettled that where there is nothing in the evidence to show that the wound
would be fatal if not medically attended to, the character of the wound is
doubtful; hence, the doubt should be resolved in favor of the accused and
the crime committed by him may be declared as attempted, not frustrated,
murder.31
Accordingly, the imposable penalty for the crime of attempted murder,
following Article 51 of the Revised Penal Code, is prision correccional in
its maximum period to prision mayor in its medium period. Applying the
Indeterminate Sentence Law, the minimum of the penalty to be imposed
should be within the range of arresto mayor in its maximum period to
prision correccional in its medium period, and the maximum of the penalty
to be imposed should be within the range of prision correccional in its
maximum period to prision mayor in its medium period. Since no generic
aggravating or mitigating circumstance attended the commission of the
crime of attempted murder, the penalty should be two (2) years and four
(4) months of prision correccional, as minimum; and eight (8) years of
prision mayor, as maximum.
Anent the award of P6,000.00 as damages, the Court notes that the
receipts showing the expenses incurred during Crisaldo's hospitalization
amounted only to P853.50.32 As a general rule, a party seeking the award
of actual damages must produce competent proof or the best evidence
obtainable to justify such award.33 Only substantiated and proven
expenses will be recognized in court. Nonetheless, in lieu of actual
damages, the Court grants temperate damages of P6,000.00, as it cannot
be denied that Crisaldo incurred expenses during his three-week stay in
the provincial hospital, although the exact amount cannot be proved with
certainty.34
WHEREFORE, the Decision dated July 5, 1994 of the Regional Trial
Court, Branch 4, Panabo, Davao in Criminal Case No. 91-15
is MODIFIED to the effect that petitioner is found GUILTY of ATTEMPTED
MURDER and is sentenced to suffer an indeterminate imprisonment of 2
years and 4 months of prision correccional, as minimum, and 8 years of
prision mayor, as maximum together with the accessory penalties
provided by law; and petitioner is ordered to indemnify Crisaldo Alberto
the sum of P6,000.00 as temperate damages, and costs.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice

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

Penned by Associate Justice Eugenio S. Labitoria (retired) and


concurred in by Associate Justices Teodoro P. Regino (retired)
and Juan Q. Enriquez, Jr., CA rollo, p. 120.
2

Original Records, p. 134.

20

36 Phil. 209 (1917).

TSN, August 20, 1991, Testimony of Crisaldo Alberto, pp. 5-6;


TSN, August 21, 1991, Testimony of Crisaldo Alberto, p. 7; TSN,
August 21, 1991, Testimony of Allan Perez, pp. 18-19.

21

Id. at 212.

22

Id. at 213.

23

United States v. Eduave, supra note 20, at 212.

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

TSN, August 20, 1991, Testimony of Crisaldo Alberto, pp. 7, 13;


TSN, August 21, 1991, Testimony of Allan Perez, p. 20.
7

TSN, August 21, 1991, Testimony of Crisaldo Alberto, p. 8; TSN,


August 21, 1991, Testimony of Allan Perez, p. 21.

25

See People v. Sumalpong, 348 Phil. 501, 522-523; People v.


Maguikay, G.R. No. 103226-28, October 14, 1994, 237 SCRA
587, 605.
26

People v. Caballero, 448 Phil. 514, 534 (2003).


People v. Caballero, id. at 534.

Exh. "A", Original Records, p. 44.

27

Original Records, pp. 1-2.

28

10

Id. at 69.

11

TSN, October 7, 1993, Testimony of Leonidas Epifanio, pp. 1620.

People v. Pacificador, 426 Phil. 563, 595 (2002); People v.


Villamor, 424 Phil. 302, 318 (2002); People v. Listerio, 390 Phil.
337, 357 (2000).
29

411 Phil. 939 (2001).

30
12

Original Records, p. 134.

People v. Matyaong, supra note 29, at 948 citing Wharton and


Stilles, Medical Jurisprudence, vol. III, fifth edition, p. 174 (1905).

13

Id. at 154.

31

14

CA rollo, p. 53.

15

Id. at 120.

People v. Costales, 424 Phil. 321, 334 (2002); People v. De la


Cruz, 353 Phil. 363, 386 (1998).
32

Exhibits "C" to "C-12", Original Records, pp. 89-94.

33
16

Id. at 130.

17

Id. at 149.

18

Rollo, p. 17.

19

Pangonorom v. People, G.R. No. 143380, April 11, 2005, 455


SCRA 211, 220; People v. Saludes, 451 Phil. 719, 728
(2003); People v. Lucero, G.R. Nos. 102407-08, March 26, 2001,
355 SCRA 93, 101-102.

People v. Agudez, G.R. No. 138386-87, May 20, 2004, 428


SCRA 692, 713; People v. Bao, 464 Phil. 872, 885 (2004).
34

People v. Ronas, 403 Phil. 613, 630 (2001).

The defendant Aurelio Lamahang is before this court on appeal from a


decision of the Court of First Instance of Iloilo, finding him guilty of
attempted robbery and sentencing him to suffer two years and four
months of prision correccional and to an additional penalty of ten years
and one day of prision mayor for being an habitual delinquent, with the
accessory penalties of the law, and to pay the costs of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was
patrolling his beat on Delgado and C.R. Fuentes streets of the City of
Iloilo, caught the accused in the act of making an opening with an iron bar
on the wall of a store of cheap goods located on the last named street. At
that time the owner of the store, Tan Yu, was sleeping inside with another
Chinaman. The accused had only succeeded in breaking one board and
in unfastening another from the wall, when the policeman showed up, who
instantly arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the
provincial fiscal of Iloilo, the trial judge and the Solicitor-General, as
constituting attempted robbery, which we think is erroneous.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-43530

August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,


vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto K. Bausa for appellant.
Office of the Solicitor-General Hilado for appellee.
RECTO, J.:

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.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 33463

December 18, 1930

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,


vs.
BASILIO BORINAGA, defendant-appellant.
Paulo Jaro for appellant.
Attorney-General Jaranilla for appellee.
MALCOLM, J.:
Sometime prior to March 4, 1929, an American by the name of Harry H.
Mooney, a resident of the municipality of Calubian, Leyte, contracted with
one Juan Lawaan for the construction of a fish corral. Basilio Borinaga
was associated with Lawaan in the construction of the corral. On the
morning of March 4, 1929, Lawaan, with some of his men, went to
Mooney's shop and tried to collect from him the whole amount fixed by the
contract, notwithstanding that only about two-thirds of the fish corral had
been finished. As was to be expected, Mooney refused to pay the price
agreed upon at that time. On hearing this reply of Mooney, Lawaan
warned him that if he did not pay, something would happen to him, to
which Mooney answered that if they wanted to do something to him they
should wait until after breakfast, Lawaan then left with his men, and
Mooney, after partaking of his morning meal, returned to his shop.
On the evening of the same day, Mooney was in the store of a neighbor
by the name of Perpetua Najarro. He had taken a seat on a chair in front
of the Perpetua, his back being to the window. Mooney had not been
there long when Perpetua saw Basilio Borinaga from the window strike
with a knife at Mooney, but fortunately for the latter, the knife lodged in the
back of the chair on which Mooney was seated. Mooney fell from the chair
as a result of the force of the blow, but was not injured. Borinaga ran away
towards the market place. Before this occurred, it should be stated that

Borinaga had been heard to tell a companion: "I will stab this Mooney,
who is an American brute." After the attack, Borinaga was also heard to
say that he did not hit the back of Mooney but only the back of the chair.
But Borinaga was persistent in his endeavor, and hardly ten minutes after
the first attack, he returned, knife in hand, to renew it, but was unable to
do so because Mooney and Perpetua were then on their guard and turned
a flashlight on Borinaga, frightening him away. Again the same night,
Borinaga was overheard stating that he had missed his mark and was
unable to give another blow because of the flashlight. The point of the
knife was subsequently, on examination of the chair, found embedded in
it.
The foregoing occurrences gave rise to the prosecution of Basilio
Borinaga in the Court of First Instance of Leyte for the crime of frustrated
murder. The defense was alibi, which was not given credence. The
accused was convicted as charged, by Judge Ortiz, who sentenced him to
fourteen years, eight months, and one day of imprisonment, reclusion
temporal, with the accessory penalties and the costs.

the 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

We dissent from the opinion of the majority in so far as it finds the


defendant-appellant guilty of the crime of frustrated murder instead of that
of an attempt to commit murder.
Article 3 of the Penal Code provides as follows:
ART. 3. Frustrated felonies and attempts to commit felonies are
punishable, as well as those which are consummated.
A felony is frustrated when the offender performs all the acts of execution
which should produce the felony as a consequence, but which,
nevertheless, do no produce it by reason of causes independent of the will
of the perpetrator.
There is an attempt when the offender commences the commission of the
felony directly by overt acts, and does not perform all the acts of execution
which constitute the felony by reason of some cause or accident other
than his own voluntary desistance.
The pertinent facts as found by the court below and by this court are the
following:

On the evening of the same day, Mooney was in the store of a neighbor
by the name of Perpetua Najarro. He had taken a seat on a chair in front
of Perpetua, his back being to the window. Mooney had not been there
long when Perpetua saw Basilio Borinaga from the window strike with a
knife at Mooney, but fortunately for the latter, the knife lodged in the back
of the chair on which Mooney was seated. Mooney fell from the chair as a
result of the force of the blow, but was not injured. Borinaga ran away
towards the market place. Before this occurred, it should be stated that
Borinaga had been heard to tell a companion: "I will stab this Mooney,
who is an American brute." After the attack, Borinaga was also heard to
say that he did not hit the back of Mooney but only the back of the chair.
But Borinaga was persistent in his endeavor, and hardly ten minutes after
the first attack, he returned, knife in hand, to renew it, but was unable to
do so because Mooney and Perpetua were then on their guard and turned
a flashlight on Borinaga, frightening him away. Again that same night,
Borinaga was overheard stating that he had missed his mark and was
unable to give another blow because of the flashlight. The point of the
knife was subsequently, on examination of the chair, found embedded in
it.
Since the facts constituting frustrated felony and those constituting an
attempt to commit felony are integral parts of those constituting
consummated felony, it becomes important to know what facts would have
been necessary in order that the case at bar might have been a
consummated murder, so that we may determine whether the facts
proved during the trial constitute frustrated murder or simply an attempt to
commit murder.
In order that the crime committed by the defendant-appellant might have
been a consummated murder it would have been necessary for him to
have inflicted a deadly wound upon a vital spot of the body of Mooney,
with treachery, as a result of which he should have died.
Since according to the definition given by the Code a frustrated felony is
committed "when the offender performs all the acts of execution which
should produce the felony as a consequence, but which, nevertheless, do
not produce it by reason of causes independent of the will of the
perpetrator" let us examine the facts of record to find out whether the said
defendant-appellant has performed all the acts of execution which should
produce the murder of Mooney as a consequence. The prisoner at bar,

intending to kill Mooney, approached him stealthily from behind and made
movement with his right hand to strike him in the back with a deadly knife,
but the blow, instead of reaching the spot intended, landed on the frame of
the back of the chair on which Mooney was sitting at the time and did not
cause the slightest physical injury on the latter. The acts of execution
performed by the defendant-appellant did not produce the death of
Mooney as a consequence nor could they have produced it because the
blow did not reach his body; therefore the culprit did not perform all the
acts of execution which should produce the felony. There was lacking the
infliction of the deadly wound upon a vital spot of the body of Mooney.
It is true that the frame of the back of the chair stood between the deadly
knife and the back of Mooney; but what it prevented was the wounding of
said Mooney in the back and not his death, had he been wounded. It is
the preventing of death by causes independent of the will of the
perpetrator, after all the acts of execution which should produce the felony
as a consequence had been performed, that constitutes frustrated felony,
according to the law, and not the preventing of the performance of all the
acts of execution which constitute the felony, as in the present case. The
interference of the frame of the back of the chair which prevented the
defendant-appellant from wounding Mooney in the back with a deadly
knife, made his acts constitute an attempt to commit murder; for he had
commenced the commission of the felony directly by overt acts, and did
not perform all the acts of execution which constitute the felony by reason
of a cause or accident other than his own voluntary desistance.
The foregoing considerations force us to the conclusion that the facts
alleged in the information and proved during the trial are not sufficient to
constitute the crime of frustrated murder, but simply the crime of an
attempt to commit murder.
Johnson and Street, JJ., concur.

EN BANC
G.R. Nos. L-39303-39305

March 17, 1934

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffs-appellee,


vs.
FELIPE KALALO, ET AL., defendants.
FELIPE KALALO, MARCELO KALALO, JUAN KALALO, and
GREGORIO RAMOS, appellants.
Meynardo M. Farol and Feliciano Gomez for appellants.
Acting Solicitor-General Pea for appellee.
DIAZ, J.:
On November 10, 1932, the herein appellants Felipe Kalalo, Marcelo
Kalalo, Juan Kalalo, and Gregorio Ramos, were tried in the Court of First
Instance of Batangas jointly with Alejandro Garcia, Fausta Abrenica and
Alipia Abrenica in criminal cases Nos. 6858, 6859 and 6860, the first two
for murder, and the last for frustrated murder. Upon agreement of the
parties said three cases were tried together and after the presentation of
their respective evidence, the said court acquitted Alejandro Garcia,
Fausta Abrenica and Alipia Abrenica, and sentenced the appellants as
follows:
In case No. 6858, for the alleged murder of Marcelino Panaligan, to
seventeen years, four months and one day ofreclusion temporal, with the
corresponding accessory penalties, and to indemnify the heirs of the said
deceased Marcelino Panaligan in the sum of P1,000, with the costs.
In case No. 6859, for the alleged murder of Arcadio Holgado, to
seventeen years, four months and one day ofreclusion temporal, with the
corresponding accessory penalties, and to indemnify the heirs of the
aforesaid victim, the deceased Arcadio Holgado, in the sum of P1,000,
with the costs.
Republic of the Philippines
SUPREME COURT
Manila

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.

6. A superficial wound barely cutting the skin, about 4 cm. long in


the lumbar region just to the right of the spinal column. (Exhibit I.)

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.

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


to wit:

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.

1. A penetrating cut wound in the epigastric region of the


abdomen measuring about 7 cm. long and 3 cm. wide cutting the
omentum and injuring the lower portion of the stomach and a
portion of the transverse colon, but no actual perforation of either
one of the two organs.

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

undoubtedly allowed him to keep at a distance from Kalalo; and in


connection with the testimony of Isabela Holgado and Maria Gutierrez,
said circumstance shows furthermore that the three appellants Felipe
Kalalo, Juan Kalalo and Gregorio Ramos attacked said Panaligan with
their respective bolos at the same time that Marcelo Kalalo attacked
Arcadio Holgado, in order that all might act simultaneously in conformity
with the common intent of the four and of their coaccused to eliminate
through violence and at any cost, without much risk to them, all those who
wanted to plow the land which was the cause of the dispute between the
two parties. And it is not strange that the three appellants, who inflicted
the wounds upon Marcelino Panaligan, should act as they did, because
they knew that the latter carried a revolver in a holster on his belt.
Although it may seem a repetition or redundancy, it should be stated that
Marcelo Kalalo's allegation that he acted in self-defense is absolutely
unfounded on the ground that, were it true that the deceased Marcelino
Panaligan succeeded in using his revolver, he would have wounded if not
the said appellant, at least the other appellants.
The trial court has acted correctly in not giving credit to the testimony of
the appellants Juan and Felipe Kalalo and Gregorio Ramos that they
proceeded to the scene of the crime completely unarmed, with the
exception that one of them had a brush in his hand and the other a plane,
after Marcelino Panaligan and Arcadio Holgado had already expired,
which is incredible and improbable under the circumstances, knowing, as
in fact they then knew, that their brother Marcelo Kalalo had been
attacked by armed men. This court cannot help but agree with the
decision of the lower court where it states:
It is improbable that after having been informed that their brother
was engaged in a fight, they went to the scene of the crime, one
merely armed with a plane and the other with a brush. It is
improbable that Felipe Kalalo also went to that place simply to
follow Juan Kalalo and Gregorio Ramos upon seeing them run
unarmed in that direction. These improbabilities of the defenses of
the accused, in the face of the positive and clear testimony of the
eyewitnesses pointing to the said accused as the aggressors of
the deceased Marcelino Panaligan and Arcadio Holgado, cannot,
of course, prevail against nor detract from the weight of the
evidence of the prosecution, particularly taking into consideration

the numerous wounds of each of the deceased and the positions


thereof, which show that the said deceased were attacked by
several persons and that those several persons were the
defendants. Furthermore, the established fact that after the
commission of the crime the said defendants had been in hiding
in order to avoid arrest, is corroborative evidence of their guilt.

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

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


In case No. 6858, or G.R. No. 39303, the court finds that the crime
committed by the appellants is homicide and they hereby sentenced to
fourteen years, eight months and one day of reclusion temporal each, to
jointly and severally indemnify the heirs of Marcelino Panaligan in the sum
of P1,000 and to pay the proportionate part of the costs of the
proceedings of both instances; and by virtue of the provisions of Act No.
4103, the minimum of the said penalty of reclusion temporal is hereby
fixed at nine years;
In case No. 6859, or G.R. No. 39304, the court likewise finds that the
crime committed by the appellants is homicide, and they are hereby
sentenced to fourteen years, eight months and one day of reclusion
temporaleach, to jointly and severally indemnify the heirs of Arcadio
Holgado in the sum of P1,000 and to pay the proportionate part of the

costs of both instances; and in conformity with the provisions of Act No.
4103, the minimum of the penalty of reclusion temporal herein imposed
upon them is hereby fixed at nine years;
In case No. 6860, or G.R. No. 39305, the court finds that the crime
committed by the appellant Marcelo Kalalo is attempted homicide, and he
is hereby sentenced to two years, four months and one day of prision
correccional, it being understood that by virtue of the provisions of said
Act No. 4103, the minimum of this penalty is six months, and he is
furthermore sentenced to pay the costs of the appeal in this case.
In all other respects, the appealed sentences in the said three cases are
hereby affirmed without prejudice to crediting the appellants therein with
one-half of the time during which they have undergone preventive
imprisonment, in accordance with article 29 of the Revised Penal Code.
So ordered.
Street, Abad Santos, Hull, and Butte, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 79123-25 January 9, 1989
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EMELIANO TRINIDAD, accused-appellant.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellant.
MELENCIO-HERRERA, J.:
On the sole issue that the adduced evidence is insufficient to prove his
guilt beyond reasonable doubt of two crimes of Murder and one of
Frustrated Murder with which he has been charged, accused Emeliano
Trinidad appeals from the judgment of the Regional Trial Court, Branch 7,
Bayugan, Agusan del Sur.
From the testimony of the principal witness, Ricardo TAN, the prosecution
presents the following factual version:
The deceased victim, Lolito Soriano, was a fish dealer based in Davao
City. His helpers were TAN, a driver, and the other deceased victim
Marcial LAROA. On 19 January 1983, using a Ford Fiera, they arrived at
Butuan City to sell fish. In the morning of 20 January 1983 SORIANO
drove the Fiera to Buenavista, Agusan del Norte, together with LAROA
and a helper of one Samuel Comendador. TAN was left behind in Butuan
City to dispose of the fish left at the Langihan market. He followed
SORIANO and LAROA, however, to Buenavista later in the morning.
While at Buenavista, accused Emeliano TRINIDAD, a member of the
Integrated National Police, assigned at Nasipit Police Station, and residing
at Baan, Butuan City, asked for a ride to Bayugan, Agusan del Sur, which
is on the way to Davao City. TRINIDAD was in uniform and had two

firearms, a carbine, and the other, a side-arm .38 caliber revolver.


SORIANO, LAROA, TAN, and TRINIDAD then left Butuan on 20 January
1983 at about 5:20 P.M. bound for Davao City. TAN was driving the Fiera.
Seated to his right was SORIANO, LAROA and the accused TRINIDAD, in
that order. When they reached the stretch between El Rio and Afga,
TRINIDAD advised them to drive slowly because, according to him, the
place was dangerous. All of a sudden, TAN heard two gunshots.
SORIANO and LAROA slumped dead. TAN did not actually see the
shooting of LAROA but he witnessed the shooting of SORIANO having
been alerted by the sound of the first gunfire. Both were hit on the head.
TRINIDAD had used his carbine in killing the two victims.
TAN then hurriedly got off the Fiera, ran towards the direction of Butuan
City and hid himself in the bushes. The Fiera was still running slowly then
but after about seven (7) to ten (10) meters it came to a halt after hitting
the muddy side of the road. TAN heard a shot emanating from the Fiera
while he was hiding in the bushes.
After about twenty (20) to thirty (30) minutes, when a passenger jeep
passed by, TAN hailed it and rode on the front seat. After a short interval
of time, he noticed that TRINIDAD was seated at the back. Apparently
noticing TAN as well, TRINIDAD ordered him to get out and to approach
him (TRINIDAD) but, instead, TAN moved backward and ran around the
jeep followed by TRINIDAD. When the jeep started to drive away, TAN
clung to its side. TRINIDAD fired two shots, one of which hit TAN on his
right thigh. As another passenger jeep passed by, TAN jumped from the
first jeep and ran to the second. However, the passengers in the latter
jeep told him to get out not wanting to get involved in the affray. Pushed
out, TAN crawled until a member of the P.C. chanced upon him and
helped him board a bus for Butuan City.
TRINIDAD's defense revolved around denial and alibi. He contended that
he was in Cagayan de Oro City on the date of the incident, 20 January
1983. At that time, he was assigned as a policeman at Nasipit Police
Station, Agusan del Norte. He reported to his post on 19 January 1983 but
asked permission from his Station Commander to be relieved from work
the next day, 20 January, as it was his birthday. He left Baan, his Butuan
City residence, at about 3:00 P.M. on 20 January 1983 and took a bus
bound for Cagayan de Oro City. He arrived at Cagayan de Oro at around
8:00 P.M. and proceeded to his sister's house at Camp Alagar to get his

subsistence allowance, as his sister was working thereat in the Finance


Section.
At his sister's house he saw Sgt. Caalim, Mrs. Andoy, one Paelmo, in
addition to his sister. Sgt. Caalim corroborated having seen TRINIDAD
then.
Continuing, TRINIDAD claimed that he left Cagayan de Oro for Butuan at
lunch time on 21 January 1983 arriving at the latter place around 6:00
P.M., and went to his house directly to get his service carbine. He was on
his way to Nasipit to report for duty on 21 January 1983 when he was
arrested at around 6:00 P.M. at Buenavista, Agusan del Norte.
After joint trial on the merits and unimpressed by the defense by the Trial
Court** sentenced the accused in an "Omnibus Decision", thus:
WHEREFORE PREMISES CONSIDERED, this Court finds
Emeliano Trinidad GUILTY beyond reasonable doubt of the
crimes of Murder and Frustrated Murder.
In the Frustrated Murder, there being no mitigating circumstance,
and taking into account the provisions of the Indeterminate
Sentence Law, accused Trinidad is meted out a penalty of:

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.

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

Q Now, what time did you leave for Buenavista from


Langihan?

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

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

3) to pay the costs.

Q You were riding the fish car which you said?

Likewise, in the two murder cases, Trinidad is accordingly


sentenced:

A I was not able to take the fish car in going to Buenavista


because they left me fishes to be dispatched yet.

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

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


January 20, 1983?

2) to indemnify the heirs of Marcial Laroa and Lolito Soriano the


amount of P30,000.00 each; and

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


consumed.

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


Q What time did you go to Buenavista?

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

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


were also going to dispatch fishes in 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.

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


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

TRINIDAD's defense of alibi is inherently weak and cannot prevail over


the straightforward and detailed descriptive narration of TAN, thus:

Q What transportation did you take?

A Lolito Soriano and Marcia Laroa with his helper.

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

xxxxxx

A We proceeded to Davao.

Q Now, when this fish car returned to Butuan City who


drove it?

Q Did you in fact reach Davao on that date?


A No, sir.

A Lolito Soriano.
Q Were you with the fish car in going back to Langihan?

Q Could you tell the Court why you failed to reach


Davao?

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

A Because we were held-up.

Felimon Comendador, also a fish vendor, and a resident of Butuan City,


testified that he saw TRINIDAD riding in the Fiera on the front seat in the
company of TAN, SORIANO and LAROA, when the Fiera stopped by his
house at Butuan City (TSN, November 5, 1985, pp. 32-33).
The other inconsistencies TRINIDAD makes much of, such as, that TAN
was unsure before the NAPOLCOM Hearing Officer whether TRINIDAD
was wearing khaki or fatigue uniform but, in open Court, he testified
positively that TRINIDAD was in khaki uniform; and that while TAN
declared that TRINIDAD was wearing a cap, prosecution witness Felimon
Comendador said that he was not but was in complete fatigue uniform,
are actually trivial details that do not affect the positive identification of
TRINIDAD that TAN has made nor detract from the latter's overall
credibility.
Nor is there basis for TRINIDAD to contend that the absence of
gunpowder burns on the deceased victims negates TAN's claim that they

Q Who held-up you?


A Emeliano Trinidad, sir.
Q Are you referring to accused Emeliano Trinidad whom
you pointed to the court awhile ago?
A Yes, sir.
Q Will you tell the Court how did Emeliano Trinidad
holdup you?
A When we reach between El Rio and Afga, Trinidad
advised us to run slowly because this place is dangerous.
Then suddenly there were two gun bursts.

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


did you see if there was any?

A I heard one gun burst.


Q From what direction was that gun bursts you heard?

A I have found out that Lolito Soriano and Marcial Laroa


already fall.

A From the Ford Fiera, sir.

Q Fall dead?

Q After that, what happened?

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

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


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

Q You mean to inform the Court that these two died


because of that gun shot bursts?
A Yes, sir.
Q Did you actually see Trinidad shooting the two?

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


what happened?

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 He ordered me to get out.

Q What was the firearm used?

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

A Carbine, sir.

Q Tell the Court, what happened after you and Trinidad


got out from the jeep?

Q Now, when you got down, what happened?

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?

Q What did you do?

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

A I moved backward.

xxxxxx

'Q Now, what did Trinidad do?

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?

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


A I ran away around the jeep.
Q While hiding yourself at the bushes, what transpired?

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


happened?
A The driver drove the jeep.

TAN's testimony remained unshaken even during cross- examination. No


ill motive has been attributed to him to prevaricate the truth. He was in the
vehicle where the killing transpired was a witness to the actual happening,
and was a victim himself who managed narrowly to escape death despite
the weaponry with which TRINIDAD was equipped.

Q Now, after that, what did you do?


A I ran after the jeep and then I was able to take the jeep
at the side of it.
Q How about Trinidad, where was he at that time?
A He also ran, sir.
Q Now, when Trinidad ran after you what happened?
A Trinidad was able to catchup with the jeep and fired his
gun.
Q Were you hit?
A At that time I did not know that I was hit because it was
sudden.
Q When for the first time did you notice that you were hit?
A At the second jeep.
Q You mean to inform the Court that the jeep you first
rode is not the very same jeep that you took for the
second time?
A No, sir.
Q Now, when you have notice that you were hit, what did
you do?
A At the first jeep that I took I was hit, so I got out from it
and stood-up at the middle of the road so that I can catch
up the other jeep.' (TSN, December 6, 1985, pp. 44-49)

The defense is correct, however, in contending that in the Frustrated


Murder case, TRINIDAD can only be convicted of Attempted Murder.
TRINIDAD had commenced the commission of the felony directly by overt
acts but was unable to perform all the acts of execution which would have
produced it by reason of causes other than his spontaneous desistance,
such as, that the jeep to which TAN was clinging was in motion, and there
was a spare tire which shielded the other parts of his body. Moreover, the
wound on his thigh was not fatal and the doctrinal rule is that where the
wound inflicted on the victim is not sufficient to cause his death, the crime
is only Attempted Murder, the accused not having performed all the acts of
execution that would have brought about death (People vs. Phones, L32754-5, July 21, 1978, 84 SCRA 167; People vs. Garcia, L-40106, March
13, 1980, 96 SCRA 497).
But while the circumstances do spell out the two crimes of Murder, the
penalty will have to be modified. For, with the abolition of capital
punishment in the 1987 Constitution, the penalty for Murder is
now reclusion
temporal in
its
maximum
period
to reclusion
perpetua (People vs. Lopez, et al. G.R. No. 71876-76, January 25, 1988
citing People vs. Gavarra, No. L-37673, October 30, 1987; People vs.
Masangkay, G.R. No. 73461, October 27, 1987). With no attending
mitigating or aggravating circumstance, said penalty is imposable in its
medium period or from eighteen (18) years, eight (8) months and one (1)
day to twenty (20) years. The penalty next lower in degree for purposes of
the Indeterminate Sentence Law is prision mayor, maximum, to reclusion
temporal, medium, or from ten (10) years and one (1) day to seventeen
(17) years and four (4) months (Article 61, parag. 3, Revised Penal Code).
WHEREFORE, the guilt of the accused Emeliano Trinidad for the crimes
of Murder (on two counts) and Attempted Murder, having been proven
beyond reasonable doubt, his conviction is hereby AFFIRMED and he is
hereby sentenced as follows:

1) In each of Criminal Cases Nos. 79123-24 (Nos. 96 and


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

THIRD DIVISION
G.R. No. 168827

April 13, 2007

BENJAMIN P. MARTINEZ, Petitioner,


vs.
COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
CALLEJO, SR., J.:
This is a Petition for Review on Certiorari of the Decision 1 and the
Resolution2 of the Court of Appeals (CA) in CA-G.R. CR No. 25436,
affirming with modification the trial courts judgment finding Benjamin P.
Martinez guilty beyond reasonable doubt of frustrated homicide.
The Antecedents

SO ORDERED.
Paras, Padilla, Sarmiento and Regalado, JJ., concur.

Footnotes
** Presided over by Judge Zenaida P. Placer.

Republic of the Philippines


SUPREME COURT
Manila

Dean Dongui-is was a teacher at the Tubao National High School, La


Union. Petitioner Benjamin Martinez was the husband of Deans coteacher, Lilibeth Martinez. Petitioner eked out a living as a tricycle driver.
On October 28, 1998, Dean and his wife Freda filed a complaint for
damages against the spouses Martinez in the Municipal Circuit Trial Court
(MCTC) of Tubao, La Union. They alleged that in March 1998, petitioner, a
suitor of Elvisa Basallo, had been peddling false reports that Dean and
Elvisa had illicit relations; he even told Freda that Elvisa was Deans
mistress. This led to a quarrel between Dean and Freda, and the latter
was hospitalized for her heart ailment. Dean requested Lilibeth to stop her
husband from spreading lies, and she replied that Elvisa had been her
husbands mistress. They prayed that they be awarded moral and
exemplary damages and litigation fees in the total amount
of P100,000.00.3 The case was docketed as Civil Case No. 226.
For her part, Elvisa also filed a complaint against the spouses Martinez in
the MCTC of Tubao for damages anchored on Article 26 of the New Civil
Code. She alleged that on several occasions, petitioner went to the
Shaltene Pawnshop and Pharmacy where she was employed and
accused her of having an illicit affair with Dean; on one occasion, he held
her hand and forcibly pulled her outside, which caused her to scratch his
face and run after him with a knife; he also told her husbands cousin,
Willy Ordanza, that she had an illicit affair with Dean; Willy, in turn, told
her mother-in-law about it; petitioner relayed the same rumors to her co-

worker, Melba Dacanay, and his wife spread to people in the Municipality,
including Ramil Basallo, her brother-in-law. Elvisa also prayed for
damages in the total amount of 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),

Branch 31, of the same province. The accusatory portion of the


Information reads:
That on or about the 3rd day of February 1999, in the Municipality of
Tubao, Province of La Union, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to kill, and with
treachery and evident premeditation, being then armed with a small
pointed bolo, did then and there willfully, unlawfully and feloniously attack,
assault and stab one DEAN DONGUI-IS y Manalo, hitting him on his left
breast and right elbow, and thereby inflicting on him injuries that would
have produced the crime of Murder as a consequence but which
nevertheless, did not produce it by reason of causes independent of the
will of the accused, mainly the timely rendition of medical assistance of on
the said offended party, which prevented his death, to his damage and
prejudice.
CONTRARY TO LAW.17
On October 13, 2000, the accused, assisted by counsel, was arraigned
and entered a plea of not guilty.
The Case for Petitioner
Petitioner declared that he merely defended himself against Deans
assault. Dean was so jealous of him because his mistress, Elvisa, had
also been his mistress. Unknown to Dean, he had already terminated his
relation with Elvisa sometime in March 1997 when his wife Lilibeth
discovered the illicit relationship. 18 Dean also suspected that he
(petitioner) had been sending letters to his (Deans) wife relative to the
illicit relationship with Elvisa. Dean also suspected that he was
responsible for the raid conducted by the Criminal Investigation Service
(CIS) of his house for possession of a gun. 19 As a result, Dean filed a civil
complaint against him for damages, docketed as Civil Case No. 266.
Before and after the filing of the civil case, Dean had hurled invectives at
him in the presence of Joselito Madriaga and other tricycle drivers. 20 Dean
even attempted to sideswipe him with his car.21
Petitioner declared that the criminal charge against him was Deans
concoction, and intended solely to harass him. He narrated that he went
to the TCC office at about 1:30 p.m. on February 3, 1999. His wife had
earlier received a note from the cooperative to get the interest on her
deposit.22 He parked his tricycle in front of the building on the left side of
the railing going to the entrance of the cooperative. 23 Deans car was
parked on the right side of the railing. 24 On his way, he met his 82-year-old
uncle, Godofredo Sarmiento, who was also on his way to the cooperative

to update his passbook because he was intending to apply for a loan. 25 He


told Godofredo that they could go to the TCC together. When they were
about to pass through the entrance door, Dean was about to exit from the
cooperative. Dean thought that he was blocking his way and shouted
invectives at him and his uncle; Dean also spat on his breast and face;
and threw a punch which he was able to parry with his left elbow. 26 Dean
kept attacking him, forcing him to move backward through the railing and
towards his tricycle. Dean punched him again but he managed to parry
the blow with his bolo which he took from his tricycle. He stabbed Dean on
his right elbow.27 He swung his bolo at Dean which forced the latter to run
back into the office. He entered the office and stood by the entrance door
to see if Dean would get a weapon. Dean continued hurling invectives at
him but was later pacified by Patricio Alterado, an employee of the
cooperative.28 When Barangay Captain Oller arrived, he surrendered,
along with his bolo.29 He never boasted on the way to the police station
that he had killed Dean.30
Godofredo partially corroborated the testimony of petitioner. He declared
that Dean spat on the face of petitioner.31 By the time Dean and petitioner
reached the place where the latters tricycle was parked, he had left; he
was afraid of being involved. 32 He did not report the incident to the police
authorities.
Joselito Madriaga testified that he and petitioner were bosom buddies with
a long history of friendship. Dean had an axe to grind against petitioner
because the two maintained a common mistress, Elvisa. 33
The Trial Courts Decision
On April 30, 2001, the trial court rendered judgment 34 convicting petitioner
of frustrated homicide. The fallo of the decision reads
WHEREFORE, this Court, after a consideration of the evidence adduced
in this case, finds accused BENJAMIN MARTINEZ guilty of the crime of
Frustrated Homicide as principal. Neither aggravating circumstance nor
mitigating circumstance has been appreciated. Applying the Indeterminate
Sentence Law, accused Benjamin Martinez is sentenced to suffer the
penalty of imprisonment ranging from FOUR (4) YEARS OF PRISION
CORRECTIONAL MEDIUM as minimum to EIGHT (8) YEARS and ONE
(1) DAY OF PRISION MAYOR MEDIUM as maximum. He is also ordered
to pay DEAN DONGUI-IS the amount of ONE HUNDRED FIFTY
THOUSAND (P150,000.00) PESOS, broken into the following:
(a) Ninety-Two Thousand (P92,000.00) Pesos for medical
expenses;

(b) Twenty-Six Thousand (P26,000.00) Pesos, representing his


salaries for two (2) months when he could not attend to teach due
to his injuries;
(c) Twenty-Two
damages; and

Thousand

(P22,000.00)

Pesos

as

moral

(d) Ten Thousand (P10,000.00) Pesos as complainants attorneys


fees.
SO ORDERED.35
The trial court gave credence and full probative weight to the testimony of
Dean, Dr. Rimando, SPO1 Sulatre, and the documentary evidence of the
prosecution. The court rejected petitioners twin defenses of denial and
self-defense. It declared that his version lacked strong corroboration, and
that his witnesses (a close relative and a friend) were biased.
Finding that the prosecution failed to prove the qualifying circumstances of
treachery, the trial court convicted petitioner of frustrated homicide. The
court declared that the crime involved a "love triangle," 36 and considered
the protagonists history of personal animosity. There was no evident
premeditation because Dean had been "forewarned" of the attack. 37
On appeal before the CA, petitioner raised the following issues:
I. THE TRIAL COURT COMMITTED SERIOUS ERRORS WHEN IT
WRONGFULLY GAVE CREDENCE TO THE FABRICATED CLAIMS OF
THE SOLE WITNESS FOR THE PROSECUTION.
II. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT
WRONGFULLY GAVE CREDENCE TO THE FALSE AND SPECIOUS
TESTIMONY OF THE COMPLAINANT.
III. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT
CONVICTED THE ACCUSED FOR FRUSTRATED HOMICIDE FOR
INJURIES NOT ATTESTED BY ANY COMPETENT MEDICAL
CERTIFICATE.
IV. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT
CONVICTED THE ACCUSED FOR FRUSTRATED HOMICIDE WITHOUT
ANY PROOF BEYOND REASONABLE DOUBT.

V. THE TRIAL COURT COMMITTED SERIOUS ERROR WHEN IT


DISREGARDED THE CONCLUSIVE EVIDENCE FOR THE DEFENSE
WHICH COMPLETELY NEGATED ANY PROOF FOR THE
PROSECUTION AND WHICH DEFINITELY WARRANTED THE
ACQUITTAL OF THE ACCUSED.38
Maintaining his innocence, petitioner claimed that he had merely acted in
self-defense when Dean insulted him, spat on his face and assaulted him
with fist blows on a mere suspicion that he (petitioner) was blocking
Deans way through the exit door of the cooperative.
The Decision of the Court of Appeals
On February 21, 2005, the CA rendered judgment affirming the assailed
decision of the RTC with modification. The fallo reads
WHEREFORE, the appealed Decision dated April 30, 2001 of the trial
court is affirmed, subject to the afforested modification of the minimum
period of the sentence. Loss of earnings in the amount of P26,000.00 and
attorneys fees in the amount of P10,000.00 are deleted, and the award of
actual damages is increased to P92,715.68.
SO ORDERED.39
The CA ruled that the case is more of a "retaliation" rather than a case of
self-defense. It declared that Dean sustained two fatal stab wounds in his
left chest, a fact which belied petitioners defense and confirmed the
prosecutions theory that he purposely and vigorously attacked the victim.
The CA ruled that when an unlawful aggression which has begun no
longer exists, the one making the defense has no more right to kill or even
wound the aggressor. The appellate court pointed out that in the case
before it, the supposed unlawful aggression of Dean ceased from the
moment he retreated inside the cooperative building; there was no need
for petitioner to follow Dean inside the building and stab him with his bolo.
Petitioner should have simply stood his ground and walked away.
In discounting the qualifying circumstances of treachery and evident
premeditation, the CA simply adverted to the stipulation of facts contained
in the Pre-Trial Order dated December 20, 2000 issued by the RTC,
stating "[t]hat the accused stabbed the private complainant when the latter
assaulted and boxed him (accused)."40 Petitioners plea of voluntary
surrender was not appreciated in his favor. However, the appellate court
modified the minimum sentence imposed by the trial court to four (4)
years and two (2) months of prision correctional, as minimum.

As to damages, the CA deleted the RTCs award of loss of earning


capacity and attorney fees, holding that they lack factual and legal basis.
It, however, increased the award of actual damages from P92,000.00
to P92,715.68 reasoning that latter amount was duly receipted. The CA
denied the appellants motion for reconsideration.41
Before this Court, petitioner assigns the following errors allegedly
committed by the CA
I. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET
ASIDE, AS THEY AROSE FROM MISAPPREHENSION OF FACTS THAT
PROVE THAT THE PROCEEDINGS AND THE FINDINGS MADE IN THE
DECISION OF THE TRIAL COURT AS WELL AS IN THE ASSAILED
DECISION ITSELF, WERE BASED ON A FALSE CHARGE WHICH IS
PATENTLY FABRICATED BY A POLICE INVESTIGATOR AND WHICH
COMPRISES MALICIOUS PROSECUTION.

filed the criminal complaint against petitioner on the basis of a sworn


statement by Dean which was taken only on March 10, 1999, long after
the criminal complaint was filed in the MCTC. Worse, when he testified on
cross-examination, Dean admitted that he did not see the questions
prepared by SPO1 Sulatre at the hospital, nor his answers to the
policemans questions. The affidavit dated March 10, 1999 was not
typewritten in the hospital, and he was not present when the affidavit was
typewritten in the police station. Thus, the testimony of the victim was selfserving and uncorroborated, tailored solely to support the charge filed by
SPO1 Sulatre.
In its comment on the petition, respondent, through the Office of the
Solicitor General (OSG), avers that the issues raised by petitioner are
factual, hence, inappropriate in a petition for review on certiorari in this
Court.

II. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET


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

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.

III. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SE[T]


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

It insists that Deans testimony, by itself, is sufficient to warrant the


conviction of petitioner for frustrated homicide. Petitioners conviction may
be anchored on Deans testimony since the trial court found it credible and
entitled to full probative weight. Petitioner failed to prove his plea of selfdefense by clear and convincing evidence.

IV. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET


ASIDE, AS THE SAME WERE RENDERED IN ALL GRAVE ABUSE OF
DISCRETION AND IN TOTAL DISREGARD OF THE COMPETENT AND
UNREBUTTED TESTIMONY FOR THE DEFENSE, WHICH NEGATE
ANY REASONABLE DOUBT ON THE GUILT OF THE ACCUSED.

The Courts Decision

V. THE ASSAILED DECISION AND RESOLUTION HAVE TO BE SET


ASIDE, AS THE INFERENCES MADE ON THE UNDISPUTED FACTS
ARE CONTRARY TO LAW AND JURISPRUDENCE AND CANNOT
JUSTIFY ANY FINDING OF ANY PROOF BEYOND REASONABLE
DOUBT.42
Petitioner insists that the criminal complaint filed by SPO1 Sulatre was a
fabrication because the latter never conducted a formal investigation of
the stabbing incident or of any witness to the incident. The police officer

The petition is denied for lack of merit.


Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal
Procedure43 provide:
Sec. 3. Procedure. The preliminary investigation shall be conducted in
the following manner:
(a) The complaint shall state the address of the respondent and
shall be accompanied by the affidavits of the complainant and his
witnesses, as well as other supporting documents to establish
probable cause. They shall be in such number of copies as there
are respondents, plus two (2) copies for the official file. The

affidavits shall be subscribed and sworn to before any prosecutor


or government official authorized to administer oath, or, in their
absence or unavailability, before a notary public, each of whom
must certify that he personally examined the affiants and that he
is satisfied that they voluntarily executed and understood their
affidavits.
(b) Within ten (10) days after the filing of the complaint, the
investigating officer shall either dismiss it if he finds no ground to
continue with the investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint and its
supporting affidavits and documents.
It bears stressing that the officer conducting the preliminary investigation
has to determine whether to dismiss the complaint outright based on the
averments of the complaint and the appendages thereof if it finds no
ground to continue with the investigation. If he finds ground to continue
with the investigation of the accused, a subpoena should be issued to the
accused, appending thereto a copy of the complaint and the supporting
affidavits. Unless the affidavits of the witnesses named in the complaint
and supporting documents are appended to the complaint, the
investigating officer may not be able to determine whether to dismiss the
complaint outright or to conduct an investigation and issue a subpoena to
the accused.44
We agree with petitioner that the criminal complaint filed by SPO1 Sulatre
with the MCTC on March 10, 1999 was defective. As gleaned from the
RTC records, the criminal complaint was not accompanied by any medical
certificate showing the nature and number of wounds sustained by the
victim, the affidavits of any of the witnesses listed at the bottom of the
criminal complaint (particularly the victim himself), and the arrest report of
SPO1 Sulatre, Brgy. Capt. Rodolfo Oller, and his son Nicky.
The MCTC had the option not to act one way or the other on the criminal
complaint of SPO1 Sulatre because the latter failed to comply with
Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal
Procedure; or to order SPO1 Sulatre to comply with the aforequoted rule;
or to dismiss the complaint without prejudice to its refiling with the
requisite documents. However, the MCTC opted not to act on the
complaint until after SPO1 Sulatre shall have submitted the requisite
affidavits/medical certificate/arrest report. When SPO1 Sulatre filed with
the MCTC, on March 10, 1999, the permanent medical certificate issued
by the IRH, the affidavit of Dean and his and Brgy. Capt. Ollers affidavit of
arrest of petitioner, the MCTC forthwith issued a subpoena to petitioner
appending thereto the said medical certificate, affidavit of Dean and the
affidavit of arrest of SPO1 Sulatre. 45 Hence, SPO1 Sulatre had complied

with Section 3(a) and (b), Rule 112 of the Revised Rules of Criminal
Procedure.
Moreover, petitioner submitted his counter-affidavit without any protest.
Neither did he assail the validity of the criminal complaint or the tardy
submission by SPO1 Sulatre of the medical certificate, the affidavit of
Dean and the affidavit of arrest of SPO1 Sulatre. Aside from this,
petitioner was arraigned in the RTC, assisted by counsel, and entered a
plea of not guilty.
On the second issue, the rulings of the trial court and the appellate court
are correct. Whether or not petitioner acted in self-defense whether
complete or incomplete is a question of fact, 46 the well-entrenched rule is
that findings of fact of the trial court in the ascertainment of the credibility
of witnesses and the probative weight of the evidence on record affirmed,
on appeal, by the CA are accorded high respect, if not conclusive effect,
by the Court and in the absence of any justifiable reason to deviate from
the said findings.47
In this case, the trial court gave no credence and probative weight to the
evidence of petitioner to prove that he acted in self-defense, complete or
incomplete. Petitioner failed to establish that the trial court and the
appellate court misconstrued, misappropriated or ignored facts and
circumstances of substance which, if considered, would warrant a
modification or reversal of the decision of the CA that petitioner failed to
establish clear and convincing evidence that he acted in self-defense,
complete or incomplete.
Like alibi, 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.

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


x x x Unlawful aggression presupposes an actual, sudden and
unexpected or imminent danger on the life and limb of a person a mere
threatening or intimidating attitude is not sufficient. There must be actual
physical force or a threat to inflict physical injury. In case of a threat, it
must be offensive and positively strong so as to display a real, not
imagined, intent to cause injury. Aggression, if not continuous, does not
constitute, aggression warranting self-defense.52
Aggression, if not continuous, does not constitute aggression warranting
self-defense.53 When unlawful aggression ceases, the defender no longer
has any justification to kill or wound the original aggressor. The assailant
is no longer acting in self-defense but in retaliation against the original
aggressor.54
There can be no self-defense, complete or incomplete, unless the
accused proves unlawful aggression on the part of the victim. 55 Unlawful
aggression is a sudden and unexpected attack or an imminent danger
thereof, and not merely a threatening or an intimidating attitude. 56
Petitioner failed to discharge his burden.
First. Petitioner failed to surrender himself to the responding
authorities who arrived at the situs criminis, as well as the bolo he
used in stabbing the victim. One who acted in self-defense is
expected to surrender, not only himself, but also the weapon he
used to kill or inflict physical injuries on the victim.57
Second. The victim sustained three stab wounds on different parts
of his body. Two were fatal stab wounds at his left chest. The
presence of a large number of wounds on the part of the victim,
their nature and location disprove self-defense and instead
indicate a determined effort to kill the victim.58
Third. Petitioner testified that he was punched by the victim.
However, there is not a scintilla of evidence to show that petitioner
suffered even a scratch as a result of the alleged fist blows.
Neither can the RTC nor the CA be faulted for giving credence to the
testimony of SPO1 Salutre. No evidence was adduced by the defense to
show that he harbored any ill-motive against petitioner to charge him with
such a crime. Absent any proof of improper motive, the prosecution
witness who is law enforcer is presumed to have regularly performed his
duty in arresting and charging petitioner.59 His testimony is thus entitled to

full faith and credit. Moreover, the conviction of petitioner was not based
solely on the testimony of the SPO1 Salutre. The unimpeached testimony
of Dean categorically established the crime; this was corroborated by the
testimony of Dr. Nathaniel Rimando.
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.

Q : What is that, Mr. Witness?

A : No, Sir.

A : He kept on shouting words, Sir.

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

Q : What are those words if you can remember?

A : Because I was suddenly stabbed by Benjamin Martinez.

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

Q : Where did Benjamin Martinez stab you?

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?

A : In front of the bank, Sir.


Q : And how did Benjamin Martinez stab you?
A : I was about to go to my car, Sir. I was reading the dividend
certificate that I got from the bank but when I was about one step
away from the back of the L300 van that was parked in front of
the bank, I was suddenly stabbed by him.
Q : Where was Benjamin Martinez at that time when he was
stabbed you?
A : Probably he was hiding at the back of the L300 van, Sir.71
When Dean was attacked he was unarmed. He had just exited the
cooperative building and had no inkling that he would be waylaid as he
made his way towards his car. Upon the other hand, petitioner was armed
with a deadly 14-inch bolo. The attacked on Dean was swift and
unannounced; undeniably, petitioners attack was treacherous.
Petitioner is guilty of frustrated murder under Article 248 in relation to
Article 6, first paragraph of the Revised Penal Code which reads:
A felony is consummated when all the elements necessary for its
execution and accomplishment are present; and it is frustrated when the
offender performs all the acts of execution which would produce the felony
as a consequence but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.
The essential elements of a frustrated felony are as follows:

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

1. The offender performs all the acts of execution;

Q : Where you able to go to the school?

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


consequence;

3. But the felony is not produced;


4. By reason of causes independent of the will of the perpetrator.72
A crime is frustrated when the offender has performed all the acts of
execution which should result in the consummation of the crime. The
offender has passed the subjective phase in the commission of the crime.
Subjectively, the crime is complete. Nothing interrupted the offender while
passing through the subjective phase. He did all that is necessary to
consummate the crime. However, the crime was not consummated by
reason of the intervention of causes independent of the will of the
offender. In homicide cases, the offender is said to have performed all the
acts of execution if the wound inflicted on the victim is mortal and could
cause the death of the victim barring medical intervention or attendance. 73
The penalty for frustrated murder is one degree lower than reclusion
perpetua to death, which is reclusion temporal. 74 The latter penalty has a
range of 12 years and 1 day to 20 years. Applying the Indeterminate
Sentence Law, the maximum of the indeterminate penalty should be taken
from reclusion temporal, the penalty for the crime, taking into account any
modifying circumstances in its commission. The minimum of the
indeterminate penalty shall be taken from the full range of prision mayor
which is one degree lower than reclusion temporal. Since there is no
modifying circumstance in the commission of frustrated murder, the
appellants should be meted an indeterminate penalty of from nine (9)
years and four (4) months of prision mayor in its medium period as
minimum, to seventeen (17) years and four (4) months of reclusion
temporal in its medium period, as maximum.
Petitioner, likewise, insists that he voluntarily surrendered to Barangay
Captain Rodolfo Oller. He faults the trial and appellate courts for relying
on the prosecutions Affidavit of Arrest, arguing that the same is
inadmissible as hearsay, the affiants not having testified to affirm their
declarations.
For voluntary surrender to be appreciated, the following requisites should
be present: (1) the offender has not been actually arrested; (2) the
offender surrendered himself to a person in authority or the latters agent;
and (3) the surrender was voluntary. The surrender must be spontaneous,
made in such a manner that it shows the interest of the accused to
surrender unconditionally to the authorities, either because he
acknowledged his guilt or he wishes to save them the trouble and
expenses that would necessarily be incurred in the search and capture. 75

In the case at bar, SPO1 Salutre testified that petitioner did not voluntarily
surrender but was forcibly apprehended by Barangay Captain Oller, and
thereafter turned over to him. Petitioner however insists that said
testimony is hearsay inasmuch as SPO1 Salutre was not the person who
actually arrested him. We disagree. During SPO1 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.

The CA is correct in deleting Deans claim for lost salary while


recuperating, since this was not supported by evidence. However, the trial
courts award of P10,000.00 as attorneys fees should be reinstated, Dean
having hired a private prosecutor to prosecute his case.
Lastly, for the suffering Dean endured from petitioners felonious act, the
award of P22,000.00 moral damages is increased to P25,000.00, in
keeping with the latest jurisprudence.79
IN LIGHT OF ALL THE FOREGOING, the assailed Decision is hereby
AFFIRMED WITH MODIFICATION. Petitioner is hereby found guilty
beyond reasonable doubt of Frustrated Murder under Article 248 in
relation to Article 6, first paragraph of the Revised Penal Code and is
hereby sentenced to suffer an indeterminate penalty from nine (9) years
and four (4) months of prision mayor in its medium period, as minimum, to
seventeen (17) years and four (4) months of reclusion temporal in its
medium period, as maximum.
Petitioner is ordered to pay Dean Dongui-is the amount of P56,275.48 as
actual damages; P25,000 as moral damages; P25,000.00 as exemplary
damages; and P10,000.00 as attorneys fees.
SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice

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

Rollo, pp. 66-67.

Exhibit "A."

Exhibit "B."

TSN, January 15, 2001, pp. 11-15.

Id. at 18.

TSN, December 13, 2000, pp. 6-7.

Exhibit "F-1."

TSN, December 13, 2000, pp. 9-10.

WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MA. ALICIA AUSTRIAMARTINEZ
Associate Justice

MINITA V. CHICO-NAZARIO
Asscociate Justice

ANTONIO EDUARDO B. NACHURA


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.

10

TSN, January 15, 2001, p. 19.

11

TSN, January 29, 2001, p. 23.

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

TSN, March 26, 2001, pp. 4-5.

42

Id. at 17.

19

Id. at 12.

43

20

Id. at 8.

21

22

As amended by the Courts Resolution in A.M. No. 05-8-26-SC dated


August 30, 2006.
44

Section 3(b), Rule 112, Revised Rules of Criminal Procedure.

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

TSN, February 19, 2001, pp. 2-4.

26

TSN, March 26, 2001, p. 17.

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

TSN, March 8, 2001, pp. 4-16.

34

Penned by Executive Judge Clifton U. Ganay; records, pp. 224-293.

35

Records, pp. 292-293.

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

Garcia v. People of the Philippines, supra note 46, at 228.

49

People of the Philippines v. De los Reyes, supra note 46, at 172.

50

Senoja v. People of the Philippines, supra note 46, at 704-705.

51

Supra note 46.

52

Id. at 229.

53

People of the Philippines v. Saul, 423 Phil. 924, 934 (2001).

People of the Philippines v. Tagana, G.R. No. 133027, March 4, 2004,


424 SCRA 620, 635.
54

55

People of the Philippines v. Gumayao, 460 Phil. 735, 746 (2003).

56

People of the Philippines v. Dala, 460 Phil. 727, 732 (2003).

57

People of the Philippines v. Marcelo, supra note 55.

58

People of the Philippines v. Rubiso, 447 Phil. 374, 382 (2003).

People of the Philippines v. Fernandez, G.R. No. 90019, December 8,


1993, 228 SCRA 301, 308-309.
59

60

People of the Philippines v. Caballero, 448 Phil. 514, 534 (2003).

Santos v. Court of Appeals, G.R. No. 126624, November 11, 2003, 415
SCRA 384, 399.
61

62

Garcia v. People of the Philippines, supra note 48, at 233.

63

TSN, January 15, 2001, p. 18.

64

TSN, December 13, 2000, pp. 7-8.

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

Revised Penal Code, Art. 14, par. 16.

70

People of the Philippines v. Escote, Jr., 448 Phil. 749, 786 (2003).

71

TSN, January 15, 2001, p. 12.

72

People of the Philippines v. Caballero, supra note 61, at 533.

73

Id. at 534.

74

Revised Penal Code, Art. 61, par. 2.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-17666

June 30, 1966

ISIDORO MONDRAGON, petitioner,


vs.
THE PEOPLE OF THE PHILIPPINES, respondent.
Jose Gaton for petitioner.
Assistant Solicitor General E. Umali and Solicitor N. P. Eduardo for
respondent.
ZALDIVAR, J.:

People of the Philippines v. Torpio, G.R. No. 138984, June 4, 2004, 431
SCRA 9, 16.

The petitioner, Isidoro Mondragon, was prosecuted in the Court of First


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

People of the Philippines v. Demante, G.R. No. 132310, January 20,


2004, 420 SCRA 229, 247.

The pertinent portion of the decision of the Court of Appeals, which


embody the findings of fact and conclusion of said court, is as follows:

People of the Philippines v. Cario, G.R. No. 131117, June 15, 2004,
432 SCRA 57, 83.
75

76

77

78

79

416 Phil. 102 (2001).


People of the Philippines v. Caballero, supra note 60, at 538.

At about 5:00 in the afternoon of July 11, 1954, while complainant


Serapion Nacionales was opening the dike of his ricefield situated in
Antandan, Miagao, Iloilo, to drain the water therein and prepare the
ground for planting the next day, he heard a shout from afar telling him not
to open the dike, Nacionales continued opening the dike, and the same
voice shouted again, "Don't you dare open the dike." When he looked up,
he saw Isidoro Mondragon coming towards him. Nacionales informed

appellant that he was opening the dike because he would plant the next
morning. Without much ado, Mondragon tried to hit the complainant who
dodged the blow. Thereupon, appellant drew his bolo and struck
complainant on different parts of his body. Complainant backed out,
unsheathed his own bolo, and hacked appellant on the head and forearm
and between the middle and ring fingers in order to defend himself. The
appellant retreated, and the complainant did not pursue him but went
home instead. The following day, the complainant was treated by Dr.
Alfredo Jamandre, Municipal Health Officer of Miagao, Iloilo, for the
following lesions (Exhibit A):
"1. Incised wound about 2-1/2 inches long and 1/3 inches deep
cutting diagonally across the angle of the left jaw.
"2. Incised wound 1-1/2 inches long and cutting the bone
underneath (3/4 centimeters deep) below the right eye.
"3. Incised wound about 1 inch long at the lunar side of the left
wrist.
"4. Incised wound about 3-1/2 inches long and 1/2 inch deep at
the left side of the lower part of the left arm.
"5. Incised wound about 1/2 inch long at the back of the left index,
middle and ring fingers.
"6. Incised wound about 1 inch long of the palmar side of the left
thumb.
"Barring complication the above lesions may heal from 20
to 25 days."
xxx

xxx

xxx

Also upon the evidence, the offense committed is attempted


homicide. Appellant's intention to kill may be inferred from his
admission made in court that he would do everything he could to
stop Nacionales from digging the canal because he needed the
water. However, it was established that the injuries received by

the complainant were not necessarily fatal as to cause the death


of said complainant.
The issue raised by the petitioner in the present appeal is that the Court of
Appeals erred in finding him guilty of the crime of attempted homicide and
not of the crime of less serious physical injuries. It is the contention of the
petitioner that the facts as found by the Court of Appeals do not show that
the petitioner had the intention to kill the offended party.1wph1.t
There is merit in the contention of the petitioner. We have carefully
examined the record, and We find that the intention of the petitioner to kill
the offended party has not been conclusively shown. The finding of the
Court of Appeals that the petitioner had the intention to kill the offended
party is simply the result of an inference from an answer made by the
petitioner while testifying in his own behalf. Thus in the decision appealed
from, it stated:
x x x Appellant's intention to kill may be inferred from his
admission made in Court that he would do everything he could to
stop Nacionales from digging the canal because he needed the
water.
The facts as found by the Court of Appeals, in our opinion, do not
establish the intent to kill on the part of the petitioner. Rather, We gather
that what happened was that the petitioner and the offended party had a
quarrel over the matter regarding the opening of the canal which would
drain the water away from the land of the petitioner, and because of this
quarrel a fight between them took place. The fight started with the
petitioner first giving first blows to the offended party and later he drew his
bolo and inflicted on the offended party the injuries which the Court of
Appeals found to be not necessarily fatal and which were certified by a
government medical officer that they would heal in less than 30 days. The
facts as found by the Court of Appeals also show that the offended party
drew his bolo and hit the petitioner on different parts of his body, and that
the petitioner retreated and did not insist on hitting the offended party with
his bolo. It may be assumed that the petitioner drew his bolo and hit the
offended party with it only when the offended party had shown a defiant
attitude, considering that the offended party himself had a bolo, as in fact
the offended party had also drawn his bolo and hit the petitioner with it,
We consider that under the circumstances surrounding the fight between

the petitioner and the offended party the intention of the petitioner to kill
the offended party was not manifest.
The Court of Appeals concluded that the petitioner had the intention to kill
the offended party when the petitioner answered in the affirmative the
question as to whether he would do everything that he could do to stop
the offended party from digging the canal because he needed the water.
We reproduce here the transcript of the pertinent testimony:
xxx

xxx

xxx

ATTY. MORADA:
Q In other words you want to tell us that you will do everything
you could to stop Nacionales digging the canal, because you
need water?
ATTY. CANTO:
I object to the question. It is misleading.
COURT:
Witness may answer.
WITNESS:
Yes, sir, because I need the water.
xxx

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

The intent to kill being an essential element of the offense of frustrated or


attempted homicide, said element must be proved by clear and convincing
evidence. That element must be proved with the same degree of certainty
as is required of the other elements of the crime. The inference of intent to
kill should not be drawn in the absence of circumstances sufficient to
prove such intent beyond reasonable doubt (People vs. Villanueva, 51
Phil. 488).1
We hold that the facts brought out in the decision of the Court of Appeals
in the present case do not justify a finding that the petitioner had the
intention to kill the offended party. On the contrary, there are facts brought
out by the decision appealed from which indicates that the petitioner had
no intention to kill, namely: the petitioner started the assault on the
offended party by just giving him fist blows; the wounds inflicted on the
offended party were of slight nature, indicating no homicidal urge on the
part of the petitioner; the petitioner retreated and went away when the
offended party started hitting him with a bolo, thereby indicating that if the
petitioner had intended to kill the offended party he would have held his
ground and kept on hitting the offended party with his bolo to kill him.
The element of intent to kill not having been duly established, and
considering that the injuries suffered by the offended party were not
necessarily fatal and could be healed in less than 30 days, We hold that
the offense that was committed by the petitioner is only that of less
serious physical injuries.
The offense of less serious physical injuries, as defined in Article 265 of
the Revised Penal Code, is punishable byarresto mayor or imprisonment
of from 1 month and 1 day to 6 months. The facts as found by the Court of
Appeals do not show any aggravating or mitigating circumstance that may

be considered in the imposition of the penalty on the petitioner. We,


therefore, sentence the petitioner to suffer the penalty of three (3) months
and fifteen (15) days of arresto mayor.
In view of the foregoing, the decision of the Court of Appeals appealed
from should be, as it is hereby, modified in the sense that the petitioner is
declared guilty of the offense of less serious physical injuries and he is
sentenced to suffer the penalty of three (3) months and fifteen (15) days
of arresto mayor, with costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Bengzon and Sanchez,
JJ.,
concur.
Barrera and Makalintal, JJ., took no part.
Footnotes
1

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.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-5848

April 30, 1954

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
SY PIO, alias POLICARPIO DE LA CRUZ, defendant-appellant.
Exequiel Zaballero, Jr. for appellant.
Assistant Solicitor General Guillermo E. Torres and Solicitor Florencio
Villamor for appellee.
LABRADOR, J.:

This is an appeal from a judgment of the Court of First Instance of Manila


finding the defendant-appellant herein Sy Pio, alias Policarpio de la Cruz,
guilty of frustrated murder against the person of Tan Siong Kiap, and
sentencing him to suffer an indeterminate sentence of 6 years, 1 month,
and 11 days of prision mayor, to 14 years, 8 months, and 1 day
of reclusion temporal, to indemnify the offended party Tan Siong Kiap in
the sum of P350, without subsidiary imprisonment in case of insolvency,
and to pay the costs. The case was appealed to the Court of Appeals, but
that court certified it to this Court under the provisions of section 17 (4) of
Republic Act No. 296, on the ground that the crime charged was
committed on the same occasion that the defendant-appellant had
committed crime of murder, with which the defendant-appellant was also
charged.
The evidence for the prosecution shows that early in the morning of
September 3, 1949, the defendant-appellant entered the store at 511
Misericordia, Sta Cruz, Manila. Once inside he started firing a .45 caliber
pistol that he had in his hand. The first one shot was Jose Sy. Tan Siong
Kiap, who was in the store and saw the accused enter and afterwards fire
a shot at Jose Sy, asked the defendant-appellant, "What is the idea?"
Thereupon defendant-appellant turned around and fired at him also. The
bullet fired from defendant-appellant's pistol entered the right shoulder of
Tan Siong Kiap immediately ran to a room behind the store to hide. From
there he still heard gunshot fired from defendant-appellant's pistol, but
afterwards defendant-appellant ran away.
Tan Siong Kiap was brought to the Chinese General Hospital, where his
wound was treated. He stayed there from September 3 to September 12,
1949, when he was released upon his request and against the physician's
advice. He was asked to return to the hospital for further treatment, and
he did so five times for a period of more than ten days. Thereafter his
wound was completely healed. He spent the sum of P300 for hospital and
doctor's fees.
The defendant-appellant shot two other persons in the morning of
September 3, 1949, before shooting and wounding Tan Siong Kiap; one
was Ong Pian and the other Jose Sy. On September 5 information was
received by the Manila Police Department that defendant-appellant was in
custody of the Constabulary in Tarlac, so a captain of the Manila police by
the name of Daniel V. Lomotan proceeded to Tarlac. There he saw the

defendant-appellant and had a conversation with him. On this occasion


defendant-appellant and had a conversation with him. On this occasion
defendant-appellant admitted to Lomotan that his victims were Tan Siong
Kiap, Ong Pian, and Jose Sy. The Constabulary in Tarlac also delivered to
Lomotan the pistol used by the defendant-appellant, marked Exhibit C,
and its magazine, Exhibit C-1, both of which the Constabulary had
confiscated from the defendant-appellant. The defendant-appellant was
thereupon delivered to the custody of Lomotan, and the latter brought him
to Manila, where his statement was taken down in writing. This declaration
was submitted at the time of the trial as Exhibit D, and it contains all the
details of the assaults that defendant-appellant 3 against the persons of
Tan Siong Kiap, Ong Pian, and Jose Sy. This written statement was taken
down on a typewriter and afterwards signed by the defendant-appellant in
both his Chinese and Filipino names, the latter being Policarpio de la
Cruz.
According to the declaration of the defendant-appellant, some months
prior to September 3, 1949, he was employed as an attendant in a
restaurant belonging to Ong Pian. Defendant-appellant's wife by the name
of Vicenta was also employed by Ong Pian's partner, Eng Cheng Suy.
Prior to September 3 the relatives of his wife had been asking the latter for
help, because her father was sick. Defendant-appellant asked money
from Ong Pian, but the latter could only give him P1. His wife was able to
borrow P20 from her employer, and this was sent to his wife's parents in
Cebu. Afterwards defendant-appellant was dismissed from his work at the
restaurant of Ong Pian, and he became a peddler. Ong Pian presented a
list of the sums that defendant-appellant had borrowed from him, and
these sums were deducted from the salary of his wife. Defendantappellant did not recognize these sums as his indebtedness, and so he
resented Ong Pian's conduct.
As to Tan Siong Kiap, the confession states that a few days before
September 3, 1949, defendant-appellant had been able to realize the sum
of P70 from the sales of medicine that he peddled. He laid his money in a
place in his room, but the following morning he found that it had
disappeared from the place in which he had placed it. Tan Siong Kiap and
Jose Sy, upon the discovery of the loss of money, told defendantappellant that he must have given the money to his wife, and that nobody
had stolen it. After this incident of the loss, the defendant-appellant used
to hear Tan Siong Kiap and Jose Sy and other Chinamen say that the

money had not been actually stolen, but that he lost it in gambling.
Because of these accusations against him, he nurtured resentment
against both Tan Siong Kiap and Jose Sy.
So early in the morning of September 3, while a Chinaman by the name of
Ngo Cho, who the possessor of a caliber .45 pistol, was away from his
room, defendant-appellant got his pistol and tucked it in his belt. With this
pistol he went to the restaurant at 822 Ongpin, and there shot Ong Pian.
After shooting him, he proceeded to 511 Misericordia, in store where Jose
Sy and Tan Siong Kiap were, and there he fired at them. Then he escaped
to Legarda Street, in Sampaloc, where he borrowed P1 from his relatives.
From there he went to Malabon, to the house of his mother, to whom he
told he had killed two persons and from he asked money.
The foregoing is the substance of the written declaration made by the
defendant-appellant in Exhibit D on September 6, 1949. At the time of the
trial, however, he disowned the confession and explained that he signed it
without having read its contents. He declared that it was not he who shot
the three victims, but it was one by the name of Chua Tone, with whom he
had previously connived to kill the three other victims. He introduced no
witnesses, however, to support his denial. Neither did he deny that he
admitted before Captain Lomotan having killed the three persons, or
having been found in Tarlac in possession of the caliber .45 pistol, Exhibit
C, and its magazine, Exhibit C-1. In his cross-examination he admitted
many of the incidents mentioned in the confession, especially the cause of
his resentment against his victims Ong Pian, Jose Sy, and Tan Siong
Kiap.
The trial court refused to believed his testimony, and therefore, found him
guilty of the crime charged.
On this appeal counsel for the defendant-appellant claims that the trial
court erred in not finding that Tan Siong Kiap received the shot
accidentally from the same bullet that had been fired at Jose Sy, and in
finding that defendant-appellant has committed a crime distinct and
separate from that of murder for the slaying of Jose Sy. We find no merit
in this contention. According to the uncontradicted testimony of the
offended party Tan Siong Kiap, when the latters saw defendant-appellant
firing shots he asked him why he was doing so, and the defendant-

appellant, instead of answering him, turned around and fired at him also. It
is not true, therefore, that the shot which hit him was fired at Sy.
It is also contended that the evidence is not sufficient to sustain the
judgment of conviction. We also find no merit in this contention. The
evidence submitted to prove the charge consists of: the uncontradicted
testimony of the victim himself; the admissions made verbally by the
defendant-appellant before Captain Lomotan in Tarlac; the fact that the
defendant-appellant had escaped and was found in Tarlac; his possession
of the .45 caliber pistol coupled with the fact, attested to by the testimony
of the physician who examined and treated the wounds of Tan Siong Kiap,
that the wounds found in his person must have been caused by the
caliber .45 bullet; and, lastly, the confession of the defendant-appellant
himself, Exhibit D, which he was not able to impugn. As against this mass
of evidence, defendant-appellant has only made a very unbelievable story
that it was not he but another that had committed the crime charged. His
admissions at the time of the trial regarding the incidents, as well as the
cause of his having assaulted his victims, coincide exactly with the
reasons given in his written confession. This shows that he had made the
confession himself, for nobody but himself could have known the facts
therein stated. The claim that the offense has not been proved beyond
reasonable doubt must be dismissed.
The defendant-appellant lastly claims that the lower court also erred in
sentencing him to pay an indemnity of P350. The offended party testified
that he actually spent P300 for hospital and doctor's fees, and that he was
confined in the hospital for nine days. The above facts stand
uncontradicted. This assignment of error must also be dismissed.
It is lastly contended that the defendant-appellant should be found guilty
only of less serious physical injuries instead of the crime of frustrated
murder as defendant-appellant admitted in his confession in the open
court that he had a grudge against the offended party, and that he
connived with another to kill the latter. The intent to kill is also evident from
his conduct in firing the shot directly at the body of the offended party.
But while intent to kill is conclusively proved the wound inflicted was not
necessarily fatal, because it did not touch any of the vital organs of the
body. As a matter of fact, the medical certification issued by the physician
who examined the wound of the offended party at the time he went to the

hospital, states that the wound was to heal within a period of fourteen
days, while the offended party actually stayed in the hospital for nine days
and continued receiving treatment thereafter five time for the period of
more than ten days, or a total of not more than thirty days. The question
that needs to be determined, therefore, is: Did the defendant-appellant
perform all the acts of execution necessary to produce the death of his
victim?
In the cases of U.S. vs. Eduave, 36 Phil., 209, People vs. Dagman, 47
Phil., 768 and People vs. Borinaga, 55 Phil., 433, this Court has held that
it is not necessary that the accused actually commit all the acts of
execution necessary to produce the death of his victim, but that it is
sufficient that he believes that he has committed all said acts. In the case
of People vs. Dagman, supra, the victim was first knocked down by a
stone thrown at him, then attacked with a lance, and then wounded by
bolos and clubs wielded by the accused, but the victim upon falling down
feigned death, and the accused desisted from further continuing in the
assault in the belief that their victim was dead. And in the case of
People vs. Borinaga, supra, the accused stabbed his intended victim, but
the knife with which he committed the aggression instead of hitting the
body of the victim, lodged in the back of the chair in which he was seated,
although the accused believed that he had already harmed him. In both
these cases this Court held that of the crime committed was that of
frustrated murder, because the subjective phase of the acts necessary to
commit the offense had already passed; there was full and complete belief
on the part of the assailant that he had committed all the acts of execution
necessary to produce the death of the intended victim.

In the case at bar, however, the defendant-appellant fired at his victim,


and the latter was hit, but he was able to escape and hide in another
room. The fact that he was able to escape, which appellant must have
seen, must have produced in the mind of the defendant-appellant that he
was not able to his his victim at a vital part of the body. In other words, the
defendant-appellant knew that he had not actually all the acts of execution
necessary to kill his victim. Under these circumstances, it can not be said
that the subjective phase of the acts of execution had been completed.
And as it does not appear that the defendant-appellant continued in the
pursuit, and as a matter of fact, he ran away afterwards a reasonable
doubt exist in our mind that the defendant-appellant had actually believed
that he has committed all the acts of execution or passed the subjective
phase of the said acts. This doubt must be resolved in favor of the
defendant-appellant.
We are, therefore, not prepared to find the defendant-appellant guilty of
frustrated murder, as charged in the information. We only find him guilty of
attempted murder, because he did not perform all the acts of execution,
actual and subjective, in order that the purpose and intention that he had
to kill his victim might be carried out.
Therefore, the judgment appealed from should be, as it is hereby,
modified and the defendant-appellant is found guilty of the crime of
attempted murder, and the sentence imposed upon him reduced to an
indeterminate penalty of from 4 years, 2 months, and 1 day of prision
correccional to 10 years of prision mayor. In all other respects the
judgment is affirmed. With costs against the defendant-appellant.
Paras, C.J., Pablo, Bengzon, Reyes, Jugo, Bautista Angelo, and
Concepcion, JJ., concur.

Automatic review of a decision of the defunct Circuit Criminal Court, 7th


Judicial District, which imposed the death penalty.
An information for robbery with homicide was filed on October 1, 1971,
against Danilo Tobias and a John Doe. The order to arrest Tobias was
returned unserved and he is still on the "Wanted Persons Files."
On December 7, 1971, the information was amended to name Hernando
Dio as the John Doe, the appellant herein. As amended, the information
reads:

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-36461 June 29, 1984
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
HERNANDO DIO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Luis R. Feria for accused-appellant.
ABAD SANTOS, J.:

That on or about the 24th day of July 1971, in Pasay City,


Philippines and within the jurisdiction of this Honorable Court, the
above-named accused Danilo Tobias @ Danny Kulot
and Hernando Dio @ Way Kaon, conspiring and confederating
together and mutually helping one another, with intent to gain and
without the knowledge and consent of the owner, and with the use
of 'balisong', one of the accused was provided with, and by
means of force, threats and intimidation employed upon the latter,
did then and there wilfully, unlawfully and feloniously take, steal
and rob away from one Crispulo P. Alega, one Seiko brand men's
wrist watch (recovered); and the said accused in accordance with
and pursuant to their conspiracy, and in order to carry out their
avowed purpose, with intent to kill did then and there wilfully,
unlawfully and feloniously attack, assault and stab for several
times Crispulo P. Alega, and which "balisong" was directly aimed
at the vital portions of the body of said Crispulo P. Alega, thus
performing all the acts of execution causing his instantaneous
death. (Expediente, p. 68.)
Accused Hernando Dio pleaded not guilty when he was arraigned and
after trial the court rendered the following judgment:
WHEREFORE, finding the accused, Hernando Dio, Guilty,
beyond reasonable doubt, of the crime of Robbery with Homicide
as defined under Article 294 of the Revised Penal Code, as
charged in the Amended Information, the Court hereby sentences
him to suffer the penalty of DEATH; to indemnify the heirs of the
victim, Crispulo Alega the amount of P12,000.00; to pay moral

damages in the amount of P10,000.00 and another P10,000.00,


as exemplary damages; and to pay the costs. (Id.,pp. 105-106.)

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

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


At about noontime on July 24, 1971, Crispulo Alega, a civil
engineer by profession working at the Sugar Construction
Company, with a salary of more than P500.00 a month went to
the Southeastern College, Pasay City to fetch his girlfriend,
Remedios Maniti, a third year high school student thereat (pp. 55,
59, 63-64, 11 1973). They proceeded to the Pasay City Public
Market. As they were going up the stairs leading to the Teresa
and Sons Restaurant, Remedios, who was was about an armslength ahead of Crispulo suddenly heard the dropping of her
folders and other things, being carried by Crispulo. When she
looked back, she saw a man later Identified as Danilo Tobias
but still at large twisting the neck of Crispulo, while the
appellant was holding his (Crispulo's) two hands (pp. 56-57, 61,
tsn., Id.). The appellant and his companion tried to divest Crispulo
of his "Seiko" wrist watch, but Crispulo resisted their attempt and
fought the robbers. At this juncture, the man who was twisting the
neck of Crispulo stabbed the latter on the left side of his chest.
Crispulo ran down the stairs followed by Remedies who shouted
for help. When he reached the front of the Pasay Commercial
Bank he fell down and expired. At the time of his death, the
"Seiko" watch was strapped to his wrist. (pp. 57-61, tsn., Id., pp.
7-9, tsn., Jan. 22, 1973).lwphl@it
An autopsy conducted on the victim's body by Dr. Ricardo Ibarola
medicolegal officer of the NBI revealed that the cause of death
was a stab wound at the region below his left breast which
penetrated the heart. Said doctor opined that judging from the
natural appearance of the stab wound, it must have been caused
by a single-bladed pointed instrument (pp. 6, 13-14, tsn., Jan. 11,
1973; Exh. C and C-1, p. 87, rec.). The necropsy report (Exh. A,
p. 85, rec.) stated that the decease sustained the following
injuries:
Abrasions: right zygomatic region, 0.6 x 0.4 infralabial region,
right side 1.7 x 1.4 come forearm right, upper third, posterolateral

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


and 1.2 crime in lengths, both superficial
Stab wound: left inframammary region, level of the 5th intercostal
space along the parasternal line, 6.0 cm. from the anterior
midline, 0.5 crime below the left nipple, elliptical in shape, 3.0 cm.
long extended laterally by 3.0 crime long rising slightly
downwards, medially edges, clean cut, sutured, medial extremity
of which is blunt and lateral extremity, sharp; directed upwards,
medially and backwards involving, among others, the soft tissues,
thru the 5th intercostal muscles, grazing the 6th rib superiorly,
perforating the left pleural cavity only, into the middle mediastinum
by penetrating the pericardium antero-inferiorly, perforating the
interventricular system and penetrating the left ventricle of the
heart at its apical portions, approximate depth 11.0 cm.
After the appellant's arrest on October 24, 1972, he was
investigated at the Detective Bureau of the Pasay City Police
Department and gave a statement (Exh. D, p. 90, rec.) in the
presence of Pat. Arturo Rimorin admitting that on the date and
nine of the incident, he and his co-accused, Danilo Tobias
administrative Kardong Kaliwa alias Danny Kulot, held up a man
and a woman; that they did not get the watch of the man; that he
held the victim's hands but the latter was able to free himself; that
Danny Kulot stabbed the man, that when the victim ran, they also
ran away; and that he did not know what happened to the victim
(Exhs. D, D-1, D-2, D-3, D-4 and D-5, p. 90, rec.; pp. 27-3 1, tsn.,
Jan. 11, 1973). (Brief, pp. 2-6.)
Atty. Luis R. Feria, counsel de oficio of the appellant, states:
After a careful, considered and conscientious examination of the
evidence adduced in the instant case, undersigned counsel is
constrained to conclude that the findings of fact of the trial court,
upholding the version of the prosecution as against that of the
defense, must have to be sustained. As against the sole and

uncorroborated testimony of appellant merely denying any


participation in the commission of the crime imputed to him (while
admitting that he was present at the scene of the crime), there is
a formidable array of evidence against him consisting of the clear
and convincing testimony of Remedios Maniti, who was in the
company of the deceased at the time he was killed and an
eyewitness to the entire incident; the extra-judicial written
confession of defendant-appellant (Exhibit D) admitting
participation in the commission of the crime; the testimony of
Patrolman Arturo Rimorin who conducted the investigation of, and
before whom Exhibit D was executed and signed by, defendantappellant, as well straight the testimony of Sgt. Geronimo de los
Santos of the Pasay Police to whom defendant-appellant orally
admitted that he held the victim's hands although he had no part
in the actual stabbing of the deceased.
With respect to the testimony of the eyewitness Remedios Maniti
there is absolutely nothing in the record (except perhaps that she
was the sweetheart of the deceased) to show, or even hint, that she
had any reasons to perjure herself by falsely incriminating defendantappellant in such a grievous crime, no bias, interest or prejudice
against the latter as would move or induce her to faithlessly accuse
him of a crime which he had not committed. More than ever, the timehonored ruling of this Honorable Court, too elemental to require
citations, that the findings of the trial court on the question of
credibility of the witnesses, having had the advantage of observing
their demeanor and manner of testifying, should not be disturbed in
the absence of strong and cogent reasons therefor, applies fully to
the case at bar. No such reasons can be found herein.
The same observations may be made with respect to the testimonies
of Patrolman Rimorin and Sgt. de los Santos. Moreover, as has been
held by this Honorable Court, where the prosecution witnesses, being
government employees who testified as to what transpired in the
performance of their duties, were neutral and disinterested and had
no reason to falsely testify against the accused, and did not subject
him to any violence, torture or bodily harm, their testimonies should
be given more weight than that of the accused (P. v. Pereto, 21 SCRA
1469: P. v. Del Castillo, 25 SCRA 716.)
Then there is the extrajudicial confession of defendant-appellant,
Exhibit D. True it is that, belatedly during the trial, appellant claimed

that his answers appearing in Exhibit D were given because he was


afraid as he was intimidated and struck on the buttock with a long
piece of wood (pp. 32-34, t.s.n. Ses. of January 22, 1973). It is
submitted that this last-minute, desperate and uncorroborated claim
falls flat in the face not only of the presumption of voluntariness in the
execution of confessions, but also of the testimony of Patrolman
Rimorin to the effect that Exhibit D was executed voluntarily and that
defendant-appellant was never maltreated (pp. 26, 31-32, t.s.n. Ses.
of January 11, 1973), and the latter's own admission that before he
signed Exhibit D, its contents were first read to him in Tagalog and
that he fully understood the same (pp. 24, t.s.n. Ses. of January 22,
1973), and his further admission that he has not filed any case
against those who had allegedly maltreated him (p. 33, t.s.n, Id.).
Moreover, where the alleged confession reveals spontaneity of the
declarations belying the claim that they were concocted or dictated
by the police, the court win reject the case that the confession was
involuntary (P. v. Castro, 11 SCRA 699).lwphl@it (Brief, pp. 3-5.)
Notwithstanding the foregoing factual admission, Atty. Feria makes the
following assignment of errors:
1. THE TRIAL COURT ERRED IN CONVICTING DEFENDANTAPPELLANT OF THE SPECIAL COMPLEX CRIME OF ROBBERY
WITH HOMICIDE AS DEFINED AND PENALIZED UNDER ART. 294,
PAR. 1, OF THE REVISED PENAL CODE.
2. EVEN ASSUMING THAT THE CRIME COMMITTED BY
DEFENDANT-APPELLANT IS ROBBERY WITH HOMICIDE, THE
TRIAL COURT ERRED IN SENTENCING HIM TO SUFFER THE
DEATH PENALTY.
We have scrutinized the record, particularly the testimonial evidence, and
indeed there is no doubt that the appellant had a hand in the death of Crispulo
Alega. There remains to be considered, however, the claims of the appellant
which are made in the assignment of errors.
The appellant claims in his first assignment of error that he should not have
been convicted of the special complex crime of robbery with homicide
because the robbery was not consummated. He states that there was only an
attempted robbery.
The Solicitor General states:

... We are constrained to agree with defense' contention. The


evidence adduced show that the appellant and his companion were
unsuccessful in their criminal venture of divesting the victim of his
wrist watch so as to constitute the consummated crime of robbery.
Indeed, as adverted to earlier, when the victim expired, the 'Seiko'
watch was still securely strapped to his wrist (p. 59, t.s.n., Jan. 11,
1973). The killing of Crispulo Alega may be considered as merely
incidental to and an offshoot of the plan to carry out the robbery,
which however was not consummated because of the resistance
offered by the deceased. Consequently, this case would properly
come under the provision of Art. 297 of the Revised Penal Code
which states that
When by reason or on occasion of an attempted or frustrated
robbery a homicide is committed, the person guilty of such
offenses shall be punished by reclusion temporal in its
maximum period to reclusion perpetua, unless the homicide
committed shall deserve a higher penalty under the
provisions of this Code. (Brief, pp. 5-6.)

crime of attempted robbery with homicide and he is sentenced to suffer an


indeterminate penalty of 10 years and 1 day of prision mayor as minimum to
20 years of reclusion temporal as maximum, to indemnify the heirs of Crispulo
Alega in the amount of P30,000.00, and to pay one-half of the costs. SO
ORDERED.
Fernando, C.J., Teehankee, Makasiar, Aquino, Concepcion, Jr., Guerrero,
Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De la Fuente and
Cuevas, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88724

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.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


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

Again the Solicitor General states:

The Office of the Solicitor General for plaintiff-appellee.


C. Manalo for defendant-appellant.

We likewise agree with the contention of counsel in his


second assigned error that the evidence presented by the
prosecution did not show the attendance of any aggravating
circumstance in the commands of the crime and neither did
the court a quo make any finding in this respect (pp. 7-8,
appellant's brief). (Id, p. 6.)
The crime committed by the appellant is attempted robbery with homicide and
the penalty prescribed by law is reclusion temporal in its maximum period
to reclusion perpetua. Since there was no attendant mitigating nor
aggravating circumstance, the penalty should be applied in its medium period,
i.e. 18 years, 8 months and 1 day to 20 years. The Indeterminate Sentence
Law has also to be applied.
WHEREFORE, the judgment of the trial court is hereby modified; the
appellant is found guilty beyond reasonable doubt of the special complex

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.

The antecedent facts as summarized in the People's brief are as follows


(pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman
student at the St. Joseph's College at Borongan, Eastern Samar.
Appellant was a Philippine Constabulary (PC) soldier.

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):

In the early morning of March 20, 1983, complainant arrived at


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

WHEREFORE. the Court being morally certain of the guilt of


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

She pleaded with him to release her, but he ordered her to go


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

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.

Upon entering the room, appellant pushed complainant who hit


her head on the wall. With one hand holding the knife, appellant
undressed himself. He then ordered complainant to take off her
clothes. Scared, she took off her T-shirt. Then he pulled off her
bra, pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her. He
made her hold his penis and insert it in her vagina. She followed
his order as he continued to poke the knife to her. At said position,
however, appellant could not fully penetrate her. Only a portion of
his penis entered her as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to
mount him. In this position, only a small part again of his penis
was inserted into her vagina. At this stage, appellant had both his
hands flat on the floor. Complainant thought of escaping (p.
20, ibid).
She dashed out to the next room and locked herself in. Appellant
pursued her and climbed the partition. When she saw him inside

the room, she ran to another room. Appellant again chased her.
She fled to another room and jumped out through a window (p.
27, ibid).

As aforementioned, the trial court convicted the accused of frustrated


rape.
In this appeal, the accused assigns the following errors:

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.

1) The trial court erred in disregarding the substantial inconsistencies in


the testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was
committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras
because they "show remarkable and vital inconsistencies and its
incredibility amounting to fabrication and therefore casted doubt to its
candor, truth and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to
trivial inconsistencies which are not sufficient to blur or cast doubt on the
witnesses' straightforward attestations. Far from being badges of
fabrication, the inconsistencies in their testimonies may in fact be
justifiably considered as manifestations of truthfulness on material points.
These little deviations also confirm that the witnesses had not been
rehearsed. The most candid witnesses may make mistakes sometimes
but such honest lapses do not necessarily impair their intrinsic credibility
(People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA 98).
Rather than discredit the testimonies of the prosecution witnesses,
discrepancies on minor details must be viewed as adding credence and
veracity to such spontaneous testimonies (Aportadera et al. v. Court of
Appeals, et al., G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a
matter of fact, complete uniformity in details would be a strong indication
of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L41829, June 27, 1988, 162 SCRA 609). However, one of the alleged
inconsistencies deserves a little discussion which is, the testimony of the
victim that the accused asked her to hold and guide his penis in order to
have carnal knowledge of her. According to the accused, this is strange
because "this is the only case where an aggressor's advances is being
helped-out by the victim in order that there will be a consumation of the
act." (p. 34, Rollo). The allegation would have been meritorious had the
testimony of the victim ended there. The victim testified further that the
accused was holding a Batangas knife during the aggression. This is a
material part of the victim's testimony which the accused conveniently
deleted.
We find no cogent reason to depart from the well-settled rule that the
findings of fact of the trial court on the credibility of witnesses should be

accorded the highest respect because it has the advantage of observing


the demeanor of witnesses and can discern if a witness is telling the truth
(People v. Samson, G.R. No. 55520, August 25, 1989). We quote with
favor the trial court's finding regarding the testimony of the victim (p
56, Rollo):
As correctly pointed out in the memorandum for the People, there
is not much to be desired as to the sincerity of the offended party
in her testimony before the court. Her answer to every question
profounded (sic), under all circumstances, are plain and
straightforward. To the Court she was a picture of supplication
hungry and thirsty for the immediate vindication of the affront to
her honor. It is inculcated into the mind of the Court that the
accused had wronged her; had traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all
that is necessary to show that rape was committed provided her testimony
is clear and free from contradiction and her sincerity and candor, free from
suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA
487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA
280; People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA
400). The victim in this case did not only state that she was raped but she
testified convincingly on how the rape was committed. The victim's
testimony from the time she knocked on the door of the municipal building
up to the time she was brought to the hospital was corroborated by Pat.
Donceras. Interpreting the findings as indicated in the medical certificate,
Dr. Reinerio Zamora (who was presented in view of the unavailability of
Dr. Abude) declared that the abrasions in the left and right knees, linear
abrasions below the left breast, multiple pinpoint marks, circumscribed
hematoma at the anterior neck, erythematous area surrounding the
vaginal orifice and tender vulva, are conclusive proof of struggle against
force and violence exerted on the victim (pp. 52-53, Rollo). The trial court
even inspected the boarding house and was fully satisfied that the
narration of the scene of the incident and the conditions therein is true (p.
54, Rollo):
. . . The staircase leading to the first floor is in such a condition
safe enough to carry the weight of both accused and offended
party without the slightest difficulty, even in the manner as
narrated. The partitions of every room were of strong materials,
securedly nailed, and would not give way even by hastily scaling
the same.
A little insight into human nature is of utmost value in judging rape
complaints (People v. Torio, et al., G.R. No. L-48731, December 21, 1983,
126 SCRA 265). Thus, the trial court added (p. 55, Rollo):

. . . And the jump executed by the offended party from that


balcony (opening) to the ground which was correctly estimated to
be less than eight (8) meters, will perhaps occasion no injury to a
frightened individual being pursued. Common experience will tell
us that in occasion of conflagration especially occuring (sic) in
high buildings, many have been saved by jumping from some
considerable heights without being injured. How much more for a
frightened barrio girl, like the offended party to whom honor
appears to be more valuable than her life or limbs? Besides, the
exposure of her private parts when she sought assistance from
authorities, as corroborated, is enough indication that something
not ordinary happened to her unless she is mentally deranged.
Sadly, nothing was adduced to show that she was out of her
mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30,
1982, 117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is her
having been rendered entirely naked by appellant and that even
in her nudity, she had to run away from the latter and managed to
gain sanctuary in a house owned by spouses hardly known to her.
All these acts she would not have done nor would these facts
have occurred unless she was sexually assaulted in the manner
she narrated.
The accused questions also the failure of the prosecution to present other
witnesses to corroborate the allegations in the complaint and the nonpresentation of the medico-legal officer who actually examined the victim.
Suffice it to say that it is up to the prosecution to determine who should be
presented as witnesses on the basis of its own assessment of their
necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29,
1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for the nonpresentation of the medico-legal officer who actually examined the victim,
the trial court stated that it was by agreement of the parties that another
physician testified inasmuch as the medico-legal officer was no longer
available. The accused did not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first
assignment of error fall flat on its face. Some were not even substantiated
and do not, therefore, merit consideration. We are convinced that the
accused is guilty of rape. However, We believe the subject matter that
really calls for discussion, is whether or not the accused's conviction
for frustrated rape is proper. The trial court was of the belief that there is
no conclusive evidence of penetration of the genital organ of the victim
and thus convicted the accused of frustrated rape only.

The accused contends that there is no crime of frustrated rape. The


Solicitor General shares the same view.
Article 335 of the Revised Penal Code defines and enumerates the
elements of the crime of rape:
Art. 335. When and how rape is committed. Rape is committed
by having carnal knowledge of a woman under any of the
following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious and
3. When the woman is under twelve years of age, even though
neither of the circumstances mentioned in the two next preceding
paragraphs shall be present.
xxx

xxx

xxx

Carnal knowledge is defined as the act of a man in having sexual bodily


connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies.
Consummated felonies as well as those which are frustrated and
attempted, are punishable.
A felony is consummated when all the elements necessary for its
execution and accomplishment are present; and it is frustrated
when the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do
not produce it by reason of causes independent of the will of the
perpetrator.
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the felony
by reason of some cause or accident other than his own
spontaneous desistance.

Correlating these two provisions, there is no debate that the attempted


and consummated stages apply to the crime of rape.1wphi1 Our concern
now is whether or not the frustrated stage applies to the crime of rape.
The requisites of a frustrated felony are: (1) that the offender has
performed all the acts of execution which would produce the felony and
(2) that the felony is not produced due to causes independent of the
perpetrator's will. In the leading case of United States v. Eduave, 36 Phil.
209, 212, Justice Moreland set a distinction between attempted and
frustrated felonies which is readily understood even by law students:
. . . A crime cannot be held to be attempted unless the offender,
after beginning the commission of the crime by overt acts, is
prevented, against his will, by some outside cause from
performing all of the acts which should produce the crime. In other
words, to be an attempted crime the purpose of the offender must
be thwarted by a foreign force or agency which intervenes and
compels him to stop prior to the moment when he has performed
all of the acts which should produce the crime as a consequence,
which acts it is his intention to perform. If he has performed all of
the acts which should result in the consummation of the crime and
voluntarily desists from proceeding further, it can not be an
attempt. The essential element which distinguishes attempted
from frustrated felony is that, in the latter, there is no intervention
of a foreign or extraneous cause or agency between the
beginning of the commission of the crime and the moment when
all of the acts have been performed which should result in the
consummated crime; while in the former there is such intervention
and the offender does not arrive at the point of performing all of
the acts which should produce the crime. He is stopped short of
that point by some cause apart from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has carnal
knowledge of his victim he actually attains his purpose and, from that
moment also all the essential elements of the offense have been
accomplished.Nothing more is left to be done by the offender, because he
has performed the last act necessary to produce the crime. Thus, the
felony is consummated. In a long line of cases (People v. Oscar, 48 Phil.
527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that
for the consummation of rape, perfect penetration is not essential. Any
penetration of the female organ by the male organ is sufficient. Entry of
the labia or lips of the female organ, without rupture of the hymen or
laceration of the vagina is sufficient to warrant conviction. Necessarily,
rape is attempted if there is no penetration of the female organ (People v.

Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States
v. Garcia: 9 Phil. 434) because not all acts of execution was
performed. The offender merely commenced the commission of a felony
directly by overt acts. Taking into account the nature, elements and
manner of execution of the crime of rape and jurisprudence on the matter,
it is hardly conceivable how the frustrated stage in rape can ever be
committed.
Of course, We are aware of our earlier pronouncement in the case of
People v. 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

disregard of the manifest variance in the medical certificate, would


be productive of mischievous results.
The alleged variance between the testimony of the victim and the medical
certificate does not exist. On the contrary, it is stated in the medical
certificate that the vulva was erythematous (which means marked by
abnormal redness of the skin due to capillary congestion, as in
inflammation) and tender. It bears emphasis that Dr. Zamoradid not rule
out penetration of the genital organ of the victim. He merely testified that
there was uncertainty whether or not there was penetration. Anent this
testimony, the victim positively testified that there was penetration, even if
only partially (pp. 302, 304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx

xxx

xxx

Q What do you mean when you said comply, or what act do you
referred (sic) to, when you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be convicted
even on the sole basis of the victim's testimony if credible (People v.
Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v.
Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People
v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349).
Moreover, Dr. Zamora's testimony is merely corroborative and is not an
indispensable element in the prosecution of this case (People v.
Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the
scale in favor of the accused because after a thorough review of the
records, We find the evidence sufficient to prove his guilt beyond
reasonable doubt of the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that
whenever the crime of rape is committed with the use of a deadly weapon,

the penalty shall be reclusion perpetua to death. The trial court


appreciated the aggravating circumstances of dwelling and nighttime.
Thus, the proper imposable penalty is death. In view, however, of Article
111, Section 19(1) of the 1987 Constitution and Our ruling in People
v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited
Constitutional provision did not declare the abolition of the death penalty
but merely prohibits the imposition of the death penalty, the Court has
since February 2, 1987 not imposed the death penalty whenever it was
called for under the Revised Penal Code but instead reduced the same
to reclusion perpetua (People v. Solis, et al., G.R. Nos. 78732-33,
February 14, 1990). Reclusion perpetua, being a single indivisible penalty
under Article 335, paragraph 3, is imposed regardless of any mitigating or
aggravating circumstances (in relation to Article 63, paragraph 1, Revised
Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112
SCRA 615; People v. Manzano, G.R. No. L38449, November 25, 1982,
118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136
SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby
MODIFIED. The accused Ceilito Orita is hereby found guilty beyond
reasonable doubt of the crime of rape and sentenced to reclusion
perpetua as well as to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 129433

March 30, 2000

PEOPLE OF THE PHILIPPINES, plaintiff,


vs.
PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita 1 finally did away with
frustrated rape 2 and allowed only attempted rape and consummated rape
to remain in our statute books. The instant case lurks at the threshold of
another emasculation of the stages of execution of rape by considering
almost every attempt at sexual violation of a woman as consummated
rape, that is, if the contrary view were to be adopted. The danger there is
that that concept may send the wrong signal to every roaming lothario,
whenever the opportunity bares itself, to better intrude with climactic
gusto, sans any restraint, since after all any attempted fornication would
be considered consummated rape and punished as such. A mere strafing
of the citadel of passion would then be considered a deadly fait accompli,
which is absurd.
In Orita we held that rape was consummated from the moment the
offender had carnal knowledge of the victim since by it he attained his
objective. All the elements of the offense were already present and
nothing more was left for the offender to do, having performed all the acts
necessary to produce the crime and accomplish it. We ruled then that
perfect penetration was not essential; any penetration of the female organ
by the male organ, however slight, was sufficient. The Court further held
that entry of the labia or lips of the female organ, even without rupture of
the hymen or laceration of the vagina, was sufficient to warrant conviction
for consummated rape. We distinguished consummated rape from

attempted rape where there was no penetration of the female organ


because not all acts of execution were performed as the offender merely
commenced the commission of a felony directly by overt acts. 3 The
inference that may be derived therefrom is that complete or full
penetration of the vagina is not required for rape to be consummated. Any
penetration, in whatever degree, is enough to raise the crime to its
consummated stage.

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.

But the Court in Orita clarified the concept of penetration in rape by


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

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.

Verily, this should be the indicium of the Court in determining whether


rape has been committed either in its attempted or in its consummated
stage; otherwise, no substantial distinction would exist between the two,
despite the fact that penalty-wise, this distinction, threadbare as it may
seem, irrevocably spells the difference between life and death for the
accused a reclusive life that is not even perpetua but only temporal on
one hand, and the ultimate extermination of life on the other. And, arguing
on another level, if the case at bar cannot be deemed attempted but
consummated rape, what then would constitute attempted rape? Must our
field of choice be thus limited only to consummated rape and acts of
lasciviousness since attempted rape would no longer be possible in light
of the view of those who disagree with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory
rape and sentenced by the court a quo to the extreme penalty of
death, 5 hence this case before us on automatic review under Art. 335 of
the Revised Penal Code as amended by RA 7659. 6
As may be culled from the evidence on record, on 25 April 1996, at
around 4 o'clock in the afternoon, Ma. Corazon P. Pamintuan, mother of
four (4)-year old Crysthel Pamintuan, went down from the second floor of
their house to prepare Milo chocolate drinks for her two (2) children. At the
ground floor she met Primo Campuhan who was then busy filling small

Primo Campuhan had only himself for a witness in his defense. He


maintained his innocence and assailed the charge as a mere scheme of
Crysthel's mother who allegedly harbored ill will against him for his refusal
to run an errand for her. 9 He asserted that in truth Crysthel was in a
playing mood and wanted to ride on his back when she suddenly pulled
him down causing both of them to fall down on the floor. It was in this
fallen position that Corazon chanced upon them and became hysterical.
Corazon slapped him and accused him of raping her child. He got mad
but restrained himself from hitting back when he realized she was a
woman. Corazon called for help from her brothers to stop him as he ran
down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and
accosted Primo. Vicente punched him and threatened to kill him. Upon
hearing the threat, Primo immediately ran towards the house of Conrado
Plata but Vicente followed him there. Primo pleaded for a chance to
explain as he reasoned out that the accusation was not true. But Vicente
kicked him instead. When Primo saw Vicente holding a piece of lead pipe,
Primo raised his hands and turned his back to avoid the blow. At this
moment, the relatives and neighbors of Vicente prevailed upon him to
take Primo to the barangay hall instead, and not to maul or possibly kill
him.

Although Primo Campuhan insisted on his innocence, the trial court on 27


May 1997 found him guilty of statutory rape, sentenced him to the
extreme penalty of death, and ordered him to pay his victim P50,000.00
for moral damages, P25,000.00 for exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma.
Corazon Pamintuan. He argues that her narration should not be given any
weight or credence since it was punctured with implausible statements
and improbabilities so inconsistent with human nature and experience. He
claims that it was truly inconceivable for him to commit the rape
considering that Crysthel's younger sister was also in the room playing
while Corazon was just downstairs preparing Milo drinks for her
daughters. Their presence alone as possible eyewitnesses and the fact
that the episode happened within the family compound where a call for
assistance could easily be heard and responded to, would have been
enough to deter him from committing the crime. Besides, the door of the
room was wide open for anybody to see what could be taking place
inside. Primo insists that it was almost inconceivable that Corazon could
give such a vivid description of the alleged sexual contact when from
where she stood she could not have possibly seen the alleged touching of
the sexual organs of the accused and his victim. He asserts that the
absence of any external signs of physical injuries or of penetration of
Crysthel's private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the
testimony of Corazon that she saw Primo with his short pants down to his
knees kneeling before Crysthel whose pajamas and panty were
supposedly "already removed" and that Primo was "forcing his penis into
Crysthel's vagina." The gravamen of the offense of statutory rape is carnal
knowledge of a woman below twelve (12), as provided in Art. 335, par. (3),
of the Revised Penal Code. Crysthel was only four (4) years old when
sexually molested, thus raising the penalty, from reclusion perpetua to
death, to the single indivisible penalty of death under RA 7659, Sec. 11,
the offended party being below seven (7) years old. We have said often
enough that in concluding that carnal knowledge took place, full
penetration of the vaginal orifice is not an essential ingredient, nor is the
rupture of the hymen necessary; the mere touching of the external
genitalia by the penis capable of consummating the sexual act is sufficient
to constitute carnal knowledge. 10 But the act of touching should be
understood here as inherently part of the entry of the penis into the labias
of the female organ and not mere touching alone of the mons pubis or
the pudendum.
In People v. De la Pea 11 we clarified that the decisions finding a case for
rape even if the attacker's penis merely touched the external portions of
the female genitalia were made in the context of the presence or

existence of an erect penis capable of full penetration. Where the accused


failed to achieve an erection, had a limp or flaccid penis, or an oversized
penis which could not fit into the victim's vagina, the Court nonetheless
held that rape was consummated on the basis of the victim's testimony
that the accused repeatedly tried, but in vain, to insert his penis into her
vagina and in all likelihood reached the labia of her pudendum as the
victim felt his organ on the lips of her vulva, 12 or that the penis of the
accused touched the middle part of her vagina. 13 Thus, touching when
applied to rape cases does not simply mean mere epidermal contact,
stroking or grazing of organs, a slight brush or a scrape of the penis on
the external layer of the victim's vagina, or the mons pubis, as in this
case. There must be sufficient and convincing proof that the penis indeed
touched the labias or slid into the female organ, and not merely stroked
the external surface thereof, for an accused to be convicted of
consummated rape. 14 As the labias, which are required to
be "touched" by the penis, are by their natural situs or
location beneath the mons pubis or the vaginal surface, to touch them
with the penis is to attain some degree of penetration beneath the surface,
hence, the conclusion that touching the labia majora or the labia minora of
the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs
that are visible in the perineal area,e.g., mons pubis, labia majora, labia
minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is
the rounded eminence that becomes hairy after puberty, and is instantly
visible within the surface. The next layer is the labia majora or the outer
lips of the female organ composed of the outer convex surface and the
inner surface. The skin of the outer convex surface is covered with hair
follicles and is pigmented, while the inner surface is a thin skin which does
not have any hair but has many sebaceous glands. Directly beneath the
labia majora is the labia minora. 15 Jurisprudence dictates that the labia
majora must be entered for rape to be consummated, 16 and not merely
for the penis to stroke the surface of the female organ. Thus, a grazing of
the surface of the female organ or touching the mons pubis of the
pudendum is not sufficient to constitute consummated rape. Absent any
showing of the slightest penetration of the female organ, i.e., touching of
either labia of the pudendum by the penis, there can be no consummated
rape; at most, it can only be attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the oftquoted "touching of the female organ," 17 but has also progressed into
being described as "the introduction of the male organ into the labia of the
pudendum," 18 or "the bombardment of the drawbridge." 19 But, to our mild,
the case at bar merely constitutes a "shelling of the castle of orgasmic
potency," or as earlier stated, a "strafing of the citadel of passion.

A review of the records clearly discloses that the prosecution utterly failed
to discharge its onus of proving that Primo's penis was able to penetrate
Crysthel's vagina however slight. Even if we grant arguendo that Corazon
witnessed Primo in the act of sexually molesting her daughter, we
seriously doubt the veracity of her claim that she saw the inter-genital
contact between Primo and Crysthel. When asked what she saw upon
entering her children's room Corazon plunged into saying that she saw
Primo poking his penis on the vagina of Crysthel without explaining her
relative position to them as to enable her to see clearly and sufficiently, in
automotive lingo, the contact point. It should be recalled that when
Corazon chanced upon Primo and Crysthel, the former was allegedly in a
kneeling position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of
the accused is pinning down the victim, while his right hand is
holding his penis and his left hand is spreading the legs of the
victim).
It can reasonably be drawn from the foregoing narration that Primo's
kneeling position rendered an unbridled observation impossible. Not even
a vantage point from the side of the accused and the victim would have
provided Corazon an unobstructed view of Primo's penis supposedly
reaching Crysthel's external genitalia, i.e., labia majora, labia minora,
hymen, clitoris, etc., since the legs and arms of Primo would have hidden
his movements from Corazon's sight, not to discount the fact that Primo's
right hand was allegedly holding his penis thereby blocking it from
Corazon's view. It is the burden of the prosecution to establish how
Corazon could have seen the sexual contact and to shove her account
into the permissive sphere of credibility. It is not enough that she claims
that she saw what was done to her daughter. It is required that her claim
be properly demonstrated to inspire belief. The prosecution failed in this
respect, thus we cannot conclude without any taint of serious doubt that
inter-genital contact was at all achieved. To hold otherwise would be to
resolve the doubt in favor of the prosecution but to run roughshod over the
constitutional right of the accused to be presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his
wicked intention despite her timely appearance, thus giving her the
opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with man's instinct of 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

People v. Eriia, 50 Phil. 998 (1927).

See Note 1.

People v. Quinaola, G.R. No. 126148, 5 May 1995.

Decision penned by Judge Benjamin T. Antonio RTC-Br. 170,


Malabon, Metro Manila (Crim. Case No. 16857-MN).
6

An Act to Impose the Death Penalty on Certain Heinous Crimes,


Amending for that Purpose the Revised Penal Code, as
amended, other Special Penal Laws, and for Other Purposes,
effective on 31 December 1993.

"Ayoko," apparently is a contraction of "ayaw ko." "Ayoko,


ayoko" means "I don't like, I don't like."
8

Corazon's brother Vicente Plata responded to her call, as well as


others living within the compound namely, Criselda Carlos
Manalac, Fernando Bondal, Jose Carlos and Reynoso Carlos.
9

Accused alleged that the charge of rape was merely concocted


by Ma. Corazon Pamintuan because of his refusal to buy
medicine for her, and perform the other tasks asked of him by her
relatives.
10

See the following American cases where the doctrine


originated: Kenny v. State, 65 L.R.A. 316; Rodgers v. State, 30
Tex. App. 510; Brauer v. State, 25 Wis. 413, as cited in People v.
Oscar, 48 Phil. 528 (1925).
11

G.R. No. 104947, 30 June 1994, 233 SCRA 573.

Rejano, G.R. Nos. 105669-70, 18 October 1994, 237 SCRA 627;


People v. Salinas, G.R. No. 107204, 6 May 1994, 232 SCRA 274;
People v. Palicte, G.R. No. 101088, 27 January 1994, 229 SCRA
543; People v. Arce, G.R. Nos. 101833-34, 20 October 1993, 227
SCRA 406; People v. Garcia, G.R. No. 92269, 30 July 1993, 244
SCRA 776; People v. Tismo, No. L-44773, 4 December 1991, 204
SCRA 535; People v. Mayoral, G.R. Nos. 96094-95, 13 November
1991, 203 SCRA 528, People v. Hangdaan, G.R. No. 90035, 13
September 1991, 201 SCRA 568; People v. Caballes, G.R. Nos.
93437-45, 12 July 1991, 199 SCRA 152; People v. Bacalso, G.R.
No. 89811, 22 March 1991, 195 SCRA 557.
17

People v. Clopino, G.R. No. 117322, 21 May 1998, 290 SCRA


432.
18

See Note 4.

19

People v. Escober, G.R. Nos. 122980-81, 6 November 1997,


281 SCRA 498.

12

People v. Bacalso, G.R. No. 89811, 22 March 1991, 195 SCRA


557; People v. Hangdaan, G.R. No. 90035, 13 September 1991,
201 SCRA 568; People v. De la Pea, G.R. No. 104947, 30 June
1994, 233 SCRA 573; People v. Clopino, G.R. No. 117322, 21,
May 1998, 290 SCRA 432; People v. Quinaola, G.R. No.
126248, 5 May 1999.
13

People v. Navarro, G.R. No. 96251, 11 May 1993, 221 SCRA


684.
14

In People v. Quinaola (G.R. No. 126148, 5 May 1999) the


Court held the word "touching" to be synonymous with the entry
by the penis into the labia declaring that ". . . the crime of rape is
deemed consummated even when the man's penis merely
entered the labia or lips of the female organ, or as once said in a
case, by the "mere touching of the external genitalia by the penis
capable of sexual act" . . .
15

Mishell, Stenchever Droegemueller, Herbst Comprehensive


Gynecology, 3rd Ed., 1997, pp. 42-44.
16

People v. Escober, G.R. Nos. 122980-81, 6 November 1997,


281 SCRA 498; People v. Galimba, G.R. Nos. 121563-64, 20
February 1996, 253 SCRA 722; People v. Sanchez, G.R. Nos.
98402-04, 16 November 1995, 250 SCRA 14; People v. Lazaro,
G.R. No. 99263, 12 October 1995, 249 SCRA 234; People v.

20

TSN, 7 October 1996, p. 20.

21

In Dulla v. CA (G.R. No. 123164, 18 February 2000) the Court


considered the testimony of a child aged three (3) years and ten
(10) months old sufficient and credible even if she answered "yes"
or "no" to questions propounded to her. However, the victim
therein, who was much younger than Crysthel in the instant case,
demonstrated what she meant when unable to articulate what
was done to her, even made graphic descriptions of the accused's
penis and demonstrated the push and pull movement made by
the accused. Yet conspicuously, the Court in the Dulla case found
the accused guilty only of acts of lasciviousness on the basis of
certain inconsistencies in the testimony of the victim on whether
or not petitioner took off her underwear.
22

In People v. Clopino (G.R. No. 117322, 21 May 1998) the Court


rejected the argument of the accused that he should only be
convicted of either attempted rape or acts of lasciviousness. It
adopted the reasoning of the Solicitor General and declared that it
was impossible for the penis of accused-appellant not to have
touched the labia of the pudendum in trying to penetrate her.
However, such logical conclusion was deduced in the light of
evidence presented that accused-appellant made determined
attempts to penetrate and insert his penis into the victim's vagina
and even engaged her in foreplay by inserting his finger into her

genitalia. The same inference cannot be made in the instant case


because of the variance in the factual milieu.

A: That means I was not able to see injuries outside the


genital of the victim, sir.

23

Q: I presumed (sic) that you conducted genital physical


examination on the victim in this case?

Decisions finding the accused guilty of consummated rape even


if the attacker's penis merely touched the female external
genitalia were made in the context of the presence of an erect
penis capable of full penetration, failing in which there can be no
consummated rape (People v. De la Pea, see Note 11).
24

See Note 16, p. 21.

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

People v. Villamayor, G.R. Nos. 97474-76, 18 July 1991, 199


SCRA 472; People v. Palicte, G.R. No. 101088, 27 January 1994,
229 SCRA 543; People v. Sanchez, G.R. Nos. 98402-04, 16
November 1995, 250 SCRA 14; People v. Gabris, G.R. No.
116221, 21 July 1996, 258 SCRA 663; People v. Cabayron, G.R.
No. 102018, 21 August 1997, 278 SCRA 78.
27

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?"

Q: There was no medical basis for the saying that might


have a contact between the patient and the accused in
this case?
A: Yes sir (TSN, 8 October 1996, pp. 3-4).

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