G.R. Nos.

L-48707-48709 December 5, 1941

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, 

vs.
VICTOR TAYCO, defendant-appellee

OZAETA, J.:

The Solicitor General moves to dismiss the appeal interposed by the City
Fiscal of Manila from the order of the Court of First Instance dismissing the
three above-numbered cases on the ground that the offense complained of
had prescribed.

The offense in question is unjust vexation alleged to have been committed

by the defendant Victor Tayco against Marcelina Alcacetas, Flora Carreon
and Rosalina Valenzuela on May 5, May 6, and May 2 and May 6, 1941,
respectively. The offended parties complained to the City Fiscal on May 24,
1941, but the City Fiscal's office did not file the corresponding information
in the Municipal Court until July 10, 1941, that is to say, more than two
months after the commission and discovery of the offense. The Municipal
Court denied defendant's motion to quash, but upon appeal the Court of First
Instance (Judge Jose R. Carlos presiding) dismissed the three cases, and the
City Fiscal appealed to this Court.

Unjust vexation is classified as a light offense, it being punished under the

second paragraph of article 287 of the Revised Penal Code with arresto
menor or a fine ranging from P5 to P200 or both. Under article 90 of the
same Code, light offenses prescribed in two months; and article 91 provides
that "the period of prescription shall commence to run from the day on
which the crime is discovered by the offended party, the authorities or their
agents, and shall be interrupted by the filing of the complaint or information,
and shall commence to run again when such proceedings terminate without
the accused being convicted or acquitted, or are unjustifiably stopped for any
reason not imputable to him."lawphil.net

We gather from the order of dismissal appealed from that the contention of
the City Fiscal is that the running of the prescriptive period was interrupted
from the time the offended parties reported the offense to his office on May
24, 1941. We agree with the lower court and the Solicitor General that such
contention is untenable. Section 2465 of the Revised Administrative Code,
upon which the City Fiscal relies, requires him to investigate "all charges of
crimes, misdemeanors, and violations of ordinances, and have the necessary
informations or complaints prepared or made against the person accused.
"From this it is claimed by the City Fiscal that he has the power to conduct a
preliminary investigation like a justice of the peace, and that the lodging of a
complaint in his office by the offended party is like the filing of a complaint
in a justice of the peace court. But under article 91 of the Revised Penal
Code, the running of the period of prescription is interrupted not by the act
of the offended party in reporting the offense to the fiscal but by filing of the
complaint or information. Said article further provides that the period of the
prescription shall commence to run again when the proceedings initiated by
the filing of the complaint or information terminate without the accused
being convicted or acquitted. Thus, it is clear that the compliant or
information referred to in article 91 is that which is filed in the proper court
and not the denuncia or accusation lodged by the offended party in the City
Fiscal's office. It is needless to add that such accusation in the City Fiscal's
office cannot end there in the acquittal or conviction of the
accused.lawphi1.net

We consider the Solicitor-General's motion to dismiss the appeal as a brief

on the merit; and since the result is favorable to the defendant-appellee, we
deem it unnecessary to hear the latter.

The order of dismissal entered by the court below is affirmed and the appeal
herein is dismissed for lack of merit, with costs de oficio. So ordered.

Abad Santos, Diaz, Moran, and Horrilleno, JJ., concur.

G.R. No. L-17920             May 30, 1962

PEOPLE OF THE PHILIPPINES, plaintiff-appellant, 

vs.
ORLANDO CARREON, defendant-appellee.

Office of the Solicitor General for plaintiff-appellant.

Pedro Samson C. Animas for defendant-appellee.

BARRERA, J.:

On February 17, 1960, Orlando Carreon was charged in the Municipal Court
of Ozamis City (Crim. Case No. 2916) with the crime of Other Light Threats
defined and penalized under Article 285 of the Revised Penal Code, in an
information which reads:

That on or about the 13th day of February, 1960, in Zamora St., in front of
the Public Market, City of Ozamis, Philippines, and within the jurisdiction
of this Honorable Court, the abovenamed accused, did, then and there,
wilfully, unlawfully, and feloniously, threaten one Manuel M. Mananquil by
then and there holding and pushing his shoulder, at the same time drawing
his sidearm, and uttering to the latter in a threatening tune the following
words: "Unsay imong gui inspection sa akong igsoon sa bukid nga wala ka
may labut sa Bureau of Education" which if translated to the English
language means, "What inspection did you make to my sister in the
mountain when you are not connected with the Bureau of Education?" as a
result of which Manuel M. Mananquil was scared and frightened.
Contrary to Article 285, of the Revised Penal Code.

To this information, the accused Carreon filed a motion to dismiss (quash)

on March 29, 1960, on the ground of insufficiency of evidence against him,
to which, the prosecution duly filed an answer (opposition) on April 4, 1960.
On the same date (April 4), the Municipal Judge denied said motion, for the
reason that "the evidence stands sufficient for conviction" of the accused
Carreon. Thereafter, trial of the case proceeded and after submission, the
Municipal Judge, on June 29, 1960, rendered a decision convicting the
accused Carreon, not of Other Light Threats as charged, but of Unjust
Vexation. Said decision in part states:

Upon a careful examination of the evidence adduced by the parties, the

Court is inclined to believe that accused Orlando Carreon did not draw his
revolver against Manuel Mananquil nor threaten him with any weapon. . . .
In view of this finding, the Court seriously doubts as to whether the accused
could be held guilty of the crime of light threat as charged in the
information.

There is no question, however, that in confronting and treating the offended

party in the manner testified to by Sgt. Obido and Patrolman Cuevas, the
accused did unjustly vex or annoy the said offended party. That there was
really intention of the accused to vex the offended party on the night in
question, was shown by the fact that shortly before the incident in question
occurred, the accused met the offended party at Zulueta Street and, in a hard
and provoking manner, asked the latter what he was inspecting about in the
slaughter-house of the public market of this City.

xxx     xxx     xxx

If the accused committed the offense of unjust vexation, can he be convicted

and sentenced accordingly under the information filed in this case?

It is alleged, among others, in the information that the accused threatened

one Manuel M. Mananquil by then and there bolding and pushing his
shoulder, . . . and uttering to the latter in a threatening tone the following
words: "What inspection did you make to my sister in the mountain when
you are not connected with the Bureau of Education?" These allegations in
the information, in the opinion of the Court, substantially describe the
offense of unjust vexation which was duly proven by the evidence presented
during the trial. Hence, the accused can be convicted and sentenced
accordingly.

WHEREFORE, finding the accused guilty beyond reasonable doubt of

unjust vexation, and there being no aggravating nor mitigating circumstance
attendant in the commission of the crime, the Court hereby sentences
Orlando Carreon to pay a fine of P25.00 with subsidiary imprisonment in
case of insolvency, and to pay the costs.1äwphï1.ñët
SO ORDERED.

From this decision, the accused Carreon appealed to the Court of First
Instance of Misamis Oriental (docketed as Crim. Case No. 5282), by filing
his notice of appeal on July 20, 1960. There the City Fiscal reproduced the
same information filed in the Municipal Court.

On August 11, 1960, the accused Carreon, through counsel, filed a motion to
quash the information, on the grounds that (1) any further proceeding or trial
of the case will constitute double jeopardy; and (2) the facts charged in the
information do not constitute the offense of Unjust Vexation. To this
motion, no opposition was filed by the prosecution.

On October 24, 1960, the Court of First Instance dismissed the case, in an
order of this tenor:

ORDER

Finding the motion to quash filed by Atty. Pedro Samson C. Animas to be

well-founded, this case is hereby ordered DISMISSED, with costs de-oficio,
and the cancellation of the bail bond posted for the provisional release of the
accused.

SO ORDERED.

From this order, the prosecution has taken the present appeal, claiming that
the trial Court erred in granting the accused Carreon's said motion to quash.

There is merit in the appeal. The first ground urged by appellee, both in the
Court of First Instance and here in this appeal, in support of his motion to
quash, which the trial court sustained, is that any further proceeding or trial
of the case will constitute double jeopardy on his part; and this seems to be
predicated on the statement of the Municipal Court that it "seriously doubts
as to whether the accused could be held guilty of the crime of light threat as
charged in the information", and on the fact that the accused was instead
convicted of Unjust Vexation. Counsel for the accused interprets this action
on the part of the Municipal Court as a judgment of acquittal with respect to
the offense of light threat and, since the information in the Court of First
Instance is captioned "Other Light Threats", it is argued that proceeding
under that information would place the accused in jeopardy for the second
time.

This contention, if plausible, is nevertheless not valid. In the first place, the
cited statement of the Municipal Court is not a finding of acquittal, but a
mere statement of a doubt. Secondly, the rule is well-settled that when an
accused unqualifiedly appeals from a sentence of the trial court — as did the
accused in this case — he waives the constitutional safeguard against double
jeopardy and throws the whole case open to the review of the appellate
court, which is then called upon to render such judgment as law and justice
dictate, whether favorable or unfavorable to the appellant (Lontoc v. People,
74 Phil. 513, 519). If this is true with respect to appeals from the Courts of
First Instance, with more force would it be in relation to appeals from the
municipal or justice of the peace courts, where Rule 119 of the Rules of
Court specifically provides:

SEC. 8. Effect of appeal. — After the notice of appeal, all the proceedings
and judgment of the justice of the peace or municipal court are vacated, and
the case shall be tried in all respects anew in the Court of First Instance as if
it were a case originally instituted in that court.

Under this provision, when an appeal has been perfected, the judgment of
the justice of the peace or municipal court is vacated, and the case is tried de
novo in the Court of First Instance, as if it were there originally instituted.
No new information need be filed in the latter court in order that it may
acquire jurisdiction to try and decide the case (Crisostomo v. Director of
Prisons, 41 Phil. 368; People v. Co Hick, 62 Phil. 501). The prosecution may
choose to stand on the information filed in the justice of the peace court, or
to file a new information in the Court of First Instance, provided the same
charges the same criminal act1 for which the accused was tried by the justice
of the peace court (Andres v. Wolfe, 5 Phil. 60).

In the instant case, when the accused Carreon filed a notice of appeal on July
20, 1960 from the judgment of the Municipal Court of Ozamis convicting
him of Unjust Vexation, said judgment was vacated, and the information
against him for Other Light Threats was automatically — as in fact it was
actually — reproduced (refiled) in the Court of First Instance of Mizamis
Oriental, which will try and decide the case anew, as if it was there
originally instituted, completely unaffected by what the Municipal Court had
found. In fine, against the proceeding to be had in the Court of First
Instance, which is brought about by the appeal taken to the accused
Carreon himself, he can not interpose the plea of double jeopardy.

The second ground invoked by the accused Carreon for the quashing of the
information is that the facts charged therein do not constitute the crime of
Unjust Vexation. But the information previously filed in the Municipal
Court and reproduced (refiled) in the Court of First Instance upon appeal of
the accused Carreon charges him with the crime of Other Light Threats, and
not of Unjust Vexation. What the Court of First Instance will determine,
after due trial, whether the accused will be found guilty of light threats or
unjust vexation under the facts alleged in the information and proved during
the hearing, is something which cannot be anticipated at this stage. And,
since the accused himself admits the sufficiency of the information as to
Other Light Threats, the Court of First Instance should, in the circumstances,
have denied the motion to quash.

WHEREFORE, the order of the trial court (dated October 24, 1960)
appealed from is hereby set aside, and the case is remanded to the court a
quo for further proceedings. No costs. So ordered.
Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Paredes and
Dizon, JJ., concur.

Footnotes
1
Not any designated offense as specified by the fiscal which may be
erroneous.

FIRST DIVISION

[G.R. NO. 138033 : January 30, 2007]

RENATO BALEROS, JR., Petitioner, v. PEOPLE OF THE

PHILIPPINES,Respondent.

RESOLUTION

GARCIA, J.:

In this Motion for Partial Reconsideration,1 petitioner-movant Renato

Baleros, Jr., through counsel, seeks reconsideration of our Decision of
February 22, 2006, acquitting him of the crime of attempted rape, thereby
reversing an earlier decision of the Court of Appeals, but adjudging him
guilty of light coercion and sentencing him to 30 days of arresto menor and
to pay a fine of P200.00, with the accessory penalties thereof and to pay the
costs.

It is petitioner's submission that his conviction for light coercion under an

Information for attempted rape, runs counter to the en banc ruling of the
Court in People v. Contreras2 where the Court held:

The Solicitor General contends that accused-appellant should be held liable

for unjust vexation under Art. 287(2) of the Revised Penal Code. However,
the elements of unjust vexation do not form part of the crime of rape as
defined in Art. 335 of the Revised Penal Code. Moreover, the circumstances
stated in the information do not constitute the elements of the said crime.
Accused-appellant, therefore, cannot be convicted of unjust vexation.

Petitioner's reliance on Contreras is misplaced. There, the 12 identical

Informations3 substantially alleged:

The undersigned State Prosecutor accuses IAN CONTRERAS Y EROY,

based on the sworn declaration of one ANGELIC OCRENAS y
CONTRERAS assisted by NELENE DIAZ y OCRENAS of the crime of
"STATUTORY RAPE IN RELATION TO R.A. 7610," committed as
follows:
That between the period from May to June 1996 in Valenzuela, Metro
Manila and within the jurisdiction of this Honorable Court, the above-named
accused with lewd design, did then and there willfully, unlawfully and
feloniously have sexual intercourse with one ANGELIC OCRENAS y
CONTRERAS, age 6 years old.

Contrary to law.

Unlike the 12 separate Informations in Contreras, the indicting Information

for attempted rape against the petitioner in the instant case contains
averments constituting and thus justifying his conviction for unjust vexation,
a form of light coercion, under Article 287 of the Revised Penal Code. Here,
the Information reads:

That about 1:50 in the morning or sometime thereafter of 13 December 1991

in Manila and within the jurisdiction of this Honorable Court, the above-
named accused, by forcefully covering the face of Martina Lourdes T.
Albano with a piece of cloth soaked in chemical with dizzying effects, did
then and there willfully, unlawfully and feloniously commenced the
commission of rape by lying on top of her with the intention to have carnal
knowledge with her but was unable to perform all the acts of execution by
reason of some cause or accident other than his

own spontaneous desistance, said acts being committed against her will and
consent to her damage and prejudice. (Italics ours.)

Contrary to law.

The aforequoted Information states all the facts and ingredients that fully
apprised the petitioner of the nature and cause of the accusation against him,
in compliance with his constitutional right to be informed of the nature of
the charges against him.

Petitioner argues, however, that the Information, as quoted above, does not
allege that the complained act of covering the face of the victim (Malou)
with a piece of cloth soaked in chemical caused her annoyance, irritation,
torment, distress and disturbance. We wish to stress that malice, compulsion
or restraint need not be alleged in an Information for unjust vexation. Unjust
vexation exists even without the element of restraint or compulsion for the
reason that the 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.4 As pointed out in the Decision sought
to be reconsidered:

The paramount question [in a prosecution for unjust vexation] is whether the
offender's act causes annoyance, irritation, torment, distress, or disturbance
to the mind of the person to whom it is directed. 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 the petitioner.

For being a mere rehash of those already passed upon and found to be
without merit in the Decision sought to be reconsidered, the other grounds
relied upon by the petitioner in his Motion for Partial Reconsideration in
support of his plea for a complete acquittal need not be belabored anew.

WHEREFORE, the motion under consideration is DENIED with

FINALITY.

SO ORDERED.

EN BANC

G.R. No. L-17616 May 30, 1962

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, vs. FELIPE

ABUY,Defendant-Appellee.

Office of the Solicitor General for plaintiff-appellant.

Antonio J. Calvento for defendant-appellee.

BARRERA, J.:chanrobles virtual law library

On April 1, 1959, Felipe Abuy was charged in the Municipal Court of

Zamboanga City with the crime of "trespass to dwelling" (Crim. Case No.
6751), in an information which reads:

That on or about February 21, 1959, in the City of Zamboanga, Philippines,

and within the jurisdiction of this Court, the said accused did then and there
wilfully, unlawfully, and feloniously enter the dwelling of Ruperto Carpio
without his knowledge or consent.chanroblesvirtualawlibrarychanrobles
virtual law library

Contrary to law.

On arraignment, the accused Abuy pleaded not guilty, and the case was
thereafter tried. When the case was called for continuation of trial on
November 5, 1959, the prosecution moved for the dismissal of the case, on
the ground that the evidence so far presented by it would not sustain the
accused's conviction of said crime charged. The motion was granted by the
court.chanroblesvirtualawlibrarychanrobles virtual law library
Subsequently, on November 13, 1959, the accused Abuy was charged before
the same Municipal Court of Zamboanga City with the crime of "unjust
vexation" (Crim. Case No. 7201) under the following information:

That on February 21, 1959, in the City of Zamboanga, Philippines, and

within the jurisdiction of this Court, the said accused with intent to cause
vexation upon Nicolasa B. de Magadia, did then and there wilfully,
unlawfully, and feloniously embrace, and take hold of her wrist, thereby
causing vexation upon her person; that there being present the aggravating
circumstance that it was committed in the dwelling of said Nicolasa B. de
Magadia.chanroblesvirtualawlibrarychanrobles virtual law library

Contrary to law.

On November 19, 1959, the accused Abuy filed a motion to quash the above
information for "unjust vexation", on the ground that said offense "has
already prescribed". To this motion, the prosecution filed its answer
(opposition) on December 23, 1959. On May 14, 1960, the court granted
said motion to quash, in an order which partly states:

The record of this case show that on February 21, 1959, on the complaint of
complainant Michaela B. de Magadia, the Prosecuting Officer, Special
Counsel Vicente Largo filed an information, docketed as Criminal Case No.
6751, for Trespass to Dwelling, against the accused Felipe Abuy. This case
for Trespass to Dwelling called for trial when the accused aided by the same
counsel that appeared for him in Criminal Case No. 7201, for Unjust
Vexation, when arraigned pleaded not guilty to the crime of Trespass to
Dwelling. On the day when Criminal Case No. 6751, was called for
continuation of the trial on November 5, 1959, the Prosecuting Officer,
Special Counsel Vicente Largo, moved for the dismissal of the information
charging Felipe Abuy of Trespass to Dwelling, on the alleged ground that
the evidence so far presented by the prosecution would not sustain the
conviction of the accused of the crime of Trespass to Dwelling, which
motion was duly granted by the Court, ordering the acquittal of the accused
with costs de oficio, ordering further the cancellation of the bail bond filed
by the accused for his provisional
liberty.chanroblesvirtualawlibrarychanrobles virtual law library

Subsequent to the dismissal, rather the acquittal of the accused Felipe Abuy
of the crime of Trespass to Dwelling on motion of the prosecuting officer,
Special Counsel Largo, another information charging the same accused
Felipe Abuy acquitted of the crime of Trespass to Dwelling with the crime
of Unjust Vexation, the present case to which the motion to quash, was filed
by the defense attorney, on the ground of
prescription.chanroblesvirtualawlibrarychanrobles virtual law library

The Court, taking into consideration the above findings of fact together with
the motion to quash filed by the defense attorney and the opposition filed by
the Special Counsel, the arguments advanced by the counsels on the motion
and opposition to the motion to quash, and the additional oral arguments,
taken by the Court Stenographer at the time of the formal hearing conducted
by this Court on the motion and opposition to the granting of the motion to
quash, believes that the crime of Unjust Vexation, for which the accused is
presently charged under Criminal Case No. 7201, filed after the said accused
based on the same facts complained by complainant Michaela de Magadia,
for which the accused Felipe Abuy was charged and wherein he was
acquitted on motion of the prosecuting officer in the first case of Trespass to
Dwelling which after dismissal of the same, the accused is now again
charged of Unjust Vexation which crime this Court believes had already
prescribed as provided for under the provisions of the Revised Penal Code,
paragraph 5 of Article 89 and Article 91 of the same Code and, therefore, the
motion to quash the information filed under Criminal Case No. 7201, for
Unjust Vexation is hereby granted, ordering the dismissal of Criminal Case
No. 7201, with costs de oficio.

From this order, the prosecution appealed to the Court of First Instance of
Zamboanga City. On July 30, 1960, said court denied the appeal, in an order
of this tenor:

ORDER

The appeal in this case taken by the City Attorney's Office being
unmeritorious and unfounded, the same is hereby DENIED and let the
records of this case be returned to the court of origin.

Hence, this appeal.chanroblesvirtualawlibrarychanrobles virtual law library

There is no merit in the People's appeal. There can be no question that the
crime of "unjust vexation" (Art. 287 [2], Revised Penal Code) is a light
offense (Art. 9[3], id.) and, therefore, prescribes in 2 months (Art. 90[6],
id.). Now, the information dated November 13, 1959 charging appellee
Abuy with said offense, expressly alleges that he committed it "on February
21, 1959" on the person of Nicolasa (Michaela) B. de Magadia." According
to Article 91 of the Revised Penal Code, the period of prescription of an
offense "shall commence to run upon the day on which the crime was
discovered by the offended party, the authorities or their agents". From
February 21, 1959 to November 13, 1959 (date of filing of the information)
is 6 months and 20 days, far beyond the 2-month prescriptive period of said
offense. In the circumstances, appellee Abuy correctly moved to quash said
information, and the Municipal Court properly granted the same. The Court
of First Instance, on its part, committed no reversible error in dismissing the
prosecution's appeal from said quashal by the Municipal Court, for being
"unmeritorious and unfounded".chanroblesvirtualawlibrarychanrobles
virtual law library
The prosecution argues, however, that the offense of "unjust vexation" had
not yet prescribed when it filed the information (Crim. Case No. 7201)
against appellee Abuy, on November 13, 1959, reasoning thus:

The acts complained of occurred on February 21, 1959. The information for
trespass to dwelling against the accused was filed on April 1, 1959, 39 days
after (p. 1, mun. court folder). The filing of the information for trespass to
dwelling on April 1, 1959 interrupted the running of the two-month
prescriptive period (Art. 91, Rev. Penal
Code).chanroblesvirtualawlibrarychanrobles virtual law library

After the municipal court of the City of Zamboanga dismissed the case on
November 5, 1959 on motion of the prosecution (p. 17, mun. court folder), it
was only then that the prescriptive period commenced to run
again.chanroblesvirtualawlibrarychanrobles virtual law library

The information for unjust vexation was received by the Municipal court of
the City of Zamboanga on November 13, 1959, 8 days after the dismissal of
the information for trespass to dwelling was handed down by the
court.chanroblesvirtualawlibrarychanrobles virtual law library

Adding the 30 days which had elapsed prior to the filing of the information
for trespass to dwelling with the 8 days, prior to the filing of the information
for unjust vexation, the aggregate total of 47 days would still be shy of the 2-
month prescriptive period allowed by law for the latter crime.

This contention of the prosecution is not in accordance with Article 91 of the

Revised Penal Code which provides that, "The period of prescription . . .
shall be interrupted by the filing of the complaint or information, and shall
commence to run again when such proceedings terminate without the
accused being convicted or acquitted, or are unjustifiably stopped for any
reason not imputable to him (accused)". The "complaint or information" or
"such proceedings" mentioned in the law must be the proper information or
complaint corresponding to the offense committed in order that "such
proceedings" thereunder may interrupt the prescriptive period. Here, the first
information was trespass to dwelling committed against Ruperto Carpio, the
elements of which as described in the information are, the prosecution
expressly admits (see appellant's brief, page 8), entirely different from the
elements of the other offense of unjust vexation against Nicolasa B. de
Magadia charged in the second information. There is nothing in the two
informations to show that the two offenses are related to each other except
that they were committed by the same accused on the same date and within
the jurisdiction of the same court. The one, in fact, is not a bar to the other.
Consequently, the filing of the one does not interrupt the prescriptive period
as to the other.chanroblesvirtualawlibrarychanrobles virtual law library

Neither is the other contention of the prosecution tenable - that the municipal
court should not have discharged the accused but should have committed
him to answer to the proper offense, as there appears to have been a mistake
in charging the correct offense. (Sec. 12, Rule 115, Rules of Court). In the
first place, the fiscal moved for the dismissal of the case, not because of an
alleged mistake, but because the evidence so far presented by him would not
sustain the accused's conviction of the crime charged in the information.
Secondly, even if the intention was to subsequently charge the accused with
unjust vexation, since the offense has clearly prescribed, it would not be
proper to further commit the accused to answer to the proper charge where
this is no longer available.chanroblesvirtualawlibrarychanrobles virtual law
library

WHEREFORE, finding no reversible error in the order appealed from, the

same is hereby affirmed, without costs. So ordered.

Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes and Dizon,

JJ., concur.

EN BANC

[G.R. No. L-7617.  November 28, 1956.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. PELAGIO G.

YANGA, Defendant-Appellant.

DECISION

PADILLA, J.:

This is an appeal, certified by the Court of Appeals for the reason that it
involves only questions of law, from a judgment finding
the Defendant guilty of unjust vexation and sentencing him to suffer 20 days
of arresto menor and to pay the costs. He claims that the trial court erred in
not finding that he had been placed twice in jeopardy; chan
roblesvirtualawlibraryand that the crime with which he was charged had
already prescribed.

It appears that on 10 October 1951 the Appellant was charged in the

Municipal Court of Manila with the crime of light threats in an information
which reads, as follows:chanroblesvirtuallawlibrary

That on or about the 4th day of October, 1951, in the City of Manila,
Philippines, the said accused did then and there willfully, unlawfully and
feloniously threaten one Cristeto Remigio, by then and there pointing a
revolver at the latter, the same not being necessary for his lawful self-
defense. (Crim. Case No. B-72655.)

To this he entered a plea of not guilty. On 1 June 1952 the private prosecutor
moved for the dismissal of the information on the ground that on 21 May
1952 another for grave coercion had been filed in the Court of First Instance
of Manila against the Appellant. On 12 June 1952 the Court dismissed the
information over the objection of the Appellant.

The information for grave coercion filed on 21 May 1952 in the Court of
First Instance of Manila, amended on 26 May 1952, reads, as
follows:chanroblesvirtuallawlibrary

That on or about the 4th day of October, 1951, in the City of Manila,
Philippines, the said accused, without authority of law, by means of
violence, did then and there willfully, unlawfully and feloniously compel
Cristeto Remigio to do something against his will, by then and there holding
the latter around the neck and dragging him from the latter’s residence
located at 67 Lopez Jaena to the police outpost at the corner of Paz and
Herran Sts., in the City of Manila, Philippines.

That the accused committed the said offense with the following aggravating
circumstances:chanroblesvirtuallawlibrary

1.  Taking advantage of his official position, he being then a member of the

Manila Police Department; chan roblesvirtualawlibraryand

2.  Taking advantage of his superior strength. (Crim. Case No. 18961.)

The Appellant contends that the dismissal of the information for light threats

in the Municipal Court upon motion of the private prosecutor over his
objection, after he had entered a plea of not guilty, is a bar to a prosecution
for grave coercion.

The material allegations in the information for light threats are —

 cralaw the said accused did then and there willfully, unlawfully and
feloniously threaten one Cristeto Remigio, by then and there pointing a
revolver at the latter,  cralaw

whereas the material allegations in the amended information for grave

coercion are —

 cralaw the said accused, without authority of law, by means of violence, did

then and there willfully, unlawfully and feloniously compel Cristeto
Remigio to do something against his will, by then and there holding the
latter around the neck and dragging him from the latter’s residence  cralaw

The evidence that would support a conviction for light threats under the first
information would not sustain a conviction for grave coercion charged in the
second. The crime of lights threats as charged in the first information is not
an ingredient of the crime of grave coercion. Hence the Appellant was not
placed twice in jeopardy of punishment for the same offense.

The Appellant claims that the crime of unjust vexation of which he was

convicted had already prescribed. It is true that light offenses prescribe in
two months. 1 In this case, the crime was alleged to have been committed on
4 October 1951. When on 10 October an information for lights threats was
filed against the Appellant in the Municipal Court, the prescriptive period
was interrupted. On 21 May 1952, or before the information for light threats
was dismissed on 12 June 1952, upon motion of the private prosecutor, an
information for grave coercion had been already filed in the Court of First
Instance of Manila against the Appellant. The claim of prescription is,
therefore, without merit.

The judgment appealed from is affirmed, with costs against the Appellant.

Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion,

Reyes, J. B. L., Endencia and Felix, JJ., concur.

FIRST DIVISION

[G.R. NO. 165065 : September 26, 2006]

MELCHOR G. MADERAZO, SENIFORO PERIDO, and VICTOR

MADERAZO, JR., Petitioners, v.PEOPLE OF THE
PHILIPPINES, Respondent.

DECISION

CALLEJO, SR., J.:

Before the Court is a Petition for Review on Certiorari under Rule 45

assailing the September 3, 2004 Decision1 of the Sandiganbayan convicting
petitioners of unjust vexation in Criminal Case No. 24309.

On October 22, 1997, an Information2 was filed before the Sandiganbayan

(First Division), charging the following with grave coercion: Municipal
Mayor Melchor G. Maderazo; his nephew, Victor Maderazo, Jr., who is a
member of the Sangguniang Bayan; and Seniforo Perido, Caibiran Police
Station Chief, together with Rodolfo Rico, Orlando Mocorro, Rodolfo Azur,
Reynaldo Oledan, Jordan Gervacio and Jose Cesora. The Information reads:

That on or about the 27th day of January 1997, at about 2:20 o'clock in the
afternoon, at Barangay Palanay, Municipality of Caibiran, Biliran,
Philippines and within the jurisdiction of this Honorable Court, above-
named accused, all public officers, having been duly elected, appointed and
qualified to such public positions above-mentioned, in such capacity and
committing the offense in relation to office, conniving and confederating
together and mutually helping with (sic) each other, by means of violence
and intimidation, without any authority of law, with deliberate intent did
then and there willfully, unlawfully, feloniously and forcibly eject one
Medaria Verutiao from the market stall she was occupying and leasing from
the Municipality of Caibiran, thereby compelling her to give up her
possession and occupation to said market stall against her will, to the
damage and prejudice of said Medaria Verutiao and detriment of public
service.

Contrary to law.3

On arraignment, all the accused pleaded not guilty to the crime

charged.4 The Sandiganbayan issued a Pre-Trial Order5 signed by all the
parties, where it was stipulated, among others, that all of the accused were
government officials; Verutiao was physically in possession of one of the
stalls in the public market of the Municipality of Caibiran previous to and as
of January 27, 1997; on January 21, 1997, the premises had been padlocked
previously by Mayor Melchor Maderazo, so that her goods were inside the
stall, and she was unable to transact any business; on January 27, 1997, the
locks were opened by the government upon the authority of the mayor, the
goods in the premises were inventoried and taken to the police station where
they have remained up to the present.6

The Case for the Prosecution7

The prosecution presented Verutiao as sole witness. She testified that she
had been the lessee of a stall in the Biliran public market. She paid a
monthly rental of P200.00.8 She was allowed to finish the construction of the
market stall with the permission of the Municipal Mayor and the Municipal
Treasurer.9She averred that Municipal Ordinance No. 2, Series of
1984,10 provides that, to facilitate the development of the public market, in
the absence of adequate government finance, construction by private parties
of buildings and other structures for commercial purposes may be allowed
and the expenses thereof shall be reimbursed to the builder by applying 50%
to the monthly rentals when occupied for business.11

She spent P24,267.00 for the construction of the market stall, as stated in the
itemized statement of expenses12 she submitted to then Municipal Treasurer
Jose Lee on February 14, 1992. She was not, however, reimbursed by the
Municipality of her expenses. After the construction, she then opened the
stall for business. She paid the rent for the whole year of 1992 but did not
pay the rentals in 1993.

On January 13, 1994, Verutiao and the Municipality entered into a one-year
lease contract,13 renewable every year with a monthly rental of P400.00. It is
also provided that, any violation of the conditions therein agreed shall be
sufficient cause for its cancellation, notwithstanding the fact that the contract
has not yet expired.

In 1995, the Municipality partially paid her P10,000.00 of her total expenses

in the construction of the market stall.14 However, considering that she had
not been fully reimbursed of her expenses for the construction of the stall,
she did not pay her rent.15 Almost weekly, she went to the Municipal
Treasurer to request for the reimbursement.16 She was told by then Treasurer
Lee and his successor, Lorenzo Dadizon, that the Municipality had no
money and she had to wait for another budget hearing.17 The treasurers did
not collect her rents for they knew that the Municipality still owed her
money.18

On December 22, 1996 Verutiao closed her stall and proceeded to Mindanao
where she spent the Christmas holidays.19 She returned to Caibiran on
January 15, 1997. On January 17, 1997, she and her husband received a
letter-order from Mayor Melchor Maderazo, directing her to vacate the stall
within twenty-four (24) hours because of her failure to pay the rentals for the
stall.20 As of January 1997, Verutiao had an unpaid rental of P2,532.00, after
deducting her expenses for the construction of the stall. The Mayor declared
in his letter that the lease contract had been cancelled.

On the same day, the spouses Verutiao, through counsel, sent a letter21 to the
Mayor, stating, among others, that they can only be ejected from the market
stall if the Municipality reimbursed them for what they had advanced for the
construction of the stall and if the Municipality was no longer willing to
lease the subject premises. They admitted that Verutiao had not paid any rent
since 1993 but maintained that, under Section 38 of Ordinance No. 2, Series
of 1984,22 she did not have to pay rental until her expenses were reimbursed,
as the rentals due would be debited from 50% of the amount she advanced
for the construction of the market stall, and that she will vacate the stall only
after the municipality shall have reimbursed her expenses in the
construction.

On January 21, 1997, Mayor Maderazo padlocked the leased premises.23 The

locks were opened on the authority of the Mayor on January 27, 1997. The
contents of the market stall were inventoried by Victor Maderazo and taken
to the police station for safekeeping.24 While these were being undertaken,
Verutiao was in her farm about 4 to 5 kilometers away from the market
stall.25 She considered the act of the Mayor as a political harassment, given
that her husband, was then a candidate for councilor under the ticket of the
opposition; and that she was a leader of the opposing party.26

The Case for the Accused27

Except for the accused Victor Maderazo, the other accused opted not to
testify. Victor Maderazo declared that as of January 27, 1997, he was a
member of the Sangguniang Bayan of Caibiran. On said date, he was at the
stall of Verutiao at the public market in the company of Seniforo Perido,
who was the Chief of Police of Caibiran, Barangay Captain Rodolfo Rico,
Revenue Collector Orlando Mocorro, and Faulio Quizo, and other laborers.
All of them witnessed the inventory of the goods in the stall of Verutiao
which Victor Maderazo made upon the request of Mayor Melchor
Maderazo. Earlier, Verutiao was informed, by letter, of the inventory of the
goods in the stall, which, however, she failed to attend. One of the
employees of the Municipality brought the key to the stall and opened it.
Victor Maderazo then conducted an inventory of the goods, each was
described, while someone was listing the goods. The inventory was orderly.

The goods were then brought to the police station where the supplies were
kept.

The Ruling of the Sandiganbayan

On September 3, 2004, the Sandiganbayan rendered judgment28 convicting

the accused Melchor G. Maderazo, Seniforo Perido, and Victor Maderazo,
Jr. of the crime of unjust vexation, but acquitted the other accused. The court
ruled that Melchor Maderazo had no authority to padlock, open and
inventory the contents of the subject stall and take the same to the police
station. Although, he had the power to cancel the lease contract, as Mayor,
he could not eject the lessee by padlocking the market stall and order the
hauling and seizure of the goods contained therein. The remedies of the
Municipality in cases where there is delinquency in the payment of fees and
rentals are provided in the Local Government Code.

The court ruled that the accused cannot, however, be convicted of grave
coercion because they did not use violence, threats or intimidation. Verutiao
could not have possibly been intimidated or forced by the accused, as she
was not at the market stall when the same was padlocked, and its goods
inventoried and hauled. The court, however, held the said accused criminally
liable for unjust vexation even if the private complainant was not at the stall
because the overt acts of the accused caused her annoyance, irritation and
vexation. The court ruled that if the second element of grave coercion under
Article 286, par. 1 of the Revised Penal Code is lacking, the crime
committed falls under the second paragraph of Article 287 of the same Code.
The fallo of the decision reads:

WHEREFORE, in view of the foregoing, accused MELCHOR G.

MADERAZO, accused SENIFORO PERIDO and VICTOR MADERAZO
JR. are hereby CONVICTED of the crime of Unjust Vexation, in Criminal
Case No. 24309 and hereby ordered to pay a fine of Two Hundred Pesos
(P200.00). Accused RODOLFO RICO, accused ORLANDO MOCORRO,
accused RODOLFO AZUR, accused REYNALDO OLEDAN, accused
JORDAN GERVACIO, and accused JOSE CESORA are hereby
ACQUITTED of the Crime of Grave Coercion in Criminal Case No. 24309
for failure of the prosecution to prove their guilt beyond reasonable doubt.

Consequently, the cash bond they have posted for their provisional liberty
are hereby CANCELLED and the Regional Trial Court, Branch 37,
Caibiran, Biliran Cashier is hereby ordered to release the said Cash Bond to
accused Rico, accused Mocorro, accused Cesora, accused Azur, accused
Oledan, and accused Gervacio.

The Hold Departure Order issued against accused Rico, accused Mocorro,
accused Cesora, accused Azur, accused Oledan, and accused Gervacio are
set aside and any Hold Departure Order issued by the Bureau of Immigration
and Deportation pursuant thereto is hereby recalled. However, the Hold
Departure Orders issued against accused Maderazo, accused Maderazo, Jr.,
and accused Perido stand.

SO ORDERED.29

The Petition Before the Court

The accused, now petitioners, filed the instant petition30 and rely on the
following grounds:

THE SANDIGANBAYAN GRAVELY ERRED IN CONVICTING

PETITIONERS OF THE CRIME OF UNJUST VEXATION.

II

THE SANDIGANBAYAN GRAVELY ERRED IN FINDING THAT

PETITIONER MAYOR MADERAZO HAS NO POWER TO PADLOCK
A MARKET STALL AND TO HAUL THE GOODS CONTAINED
THEREIN.

III

THE SACROSANCT RULE IS THAT WHERE THE PROSECUTION

FAILS TO DISCHARGE ITS BURDEN OF PROVING BEYOND
REASONABLE DOUBT EVERY FACT NECESSARY TO CONSTITUTE
THE CRIME FOR WHICH THE ACCUSED IS BEING HELD TO
ACCOUNT - - AS IN THE CASE AT BAR - - THE ACCUSED MUST
PERFORCE BE ACQUITTED.31

The threshold issue is whether or not the People adduced proof beyond
reasonable doubt of petitioners' guilt for unjust vexation.

Petitioners maintain that they are not criminally liable for unjust vexation
because Verutiao was not prevented from doing something not prohibited by
law. She could not have been possibly intimidated or forced by petitioners,
and could not have been prevented from doing business. In fact, she was not
transacting business at the time. Verutiao was not at her stall when it was
opened and her goods inventoried; hence, she could not have been vexed.

Under the Information, they were charged with grave coercion for allegedly
evicting Verutiao from her stall on January 27, 1997, thereby compelling her
to give up her possession, and depriving her of said market stall. However,
they were convicted by the trial court of unjust vexation because they
allegedly padlocked the stall, hauled and/or seized the goods contained
therein. It was petitioner Mayor Maderazo who had padlocked the stall
earlier on January 21, 1997. Petitioners Perido and Victor Maderazo, Jr.
were not involved in the padlocking of the stall. For his part, petitioner
Melchor Maderazo was not at the stall on January 27, 1997; he cannot, thus,
be guilty of unjust vexation for the overt acts of his co-petitioners on January
27, 1997.

Verutiao's refusal to vacate the premises of the subject stall despite proper
demand and despite the fact that she was no longer operating the same,
rendered her a deforciant, and liable for violation of Municipal Ordinance
No. 2, Series of 1994. Consequently, petitioner Mayor Maderazo had every
right to consider the subject stall vacant; and proceed in accordance with
Section 44 of Ordinance No. 2, Series of 1994, which provides:

Section 44 - Vacancy of Tienda or Stall before expiration of lease.

Should any reason (sic), a tienda, stall or stand holder or leases (sic)
discontinues or be required to discontinue his business before the expiration
of the lease, such tienda, stall or stand shall be considered vacant and its
occupancy thereafter shall be disposed of in the manner herein prescribed.

Petitioners posit that a Municipal Mayor has the duty to enforce all laws and
ordinances relative to the governance of the Municipality and the exercise of
its corporate powers and must ensure that all taxes and revenues of the
Municipality are collected. He is empowered to issue licenses and permits
and to suspend or revoke the same for violation of the conditions upon
which said licenses or permits were issued; to adopt adequate measures to
protect the funds, credits, rights and other properties of the municipality; and
to institute or cause to be instituted administrative or judicial proceedings for
violation of ordinances in the collection of taxes, fees or charges. Under Sec.
174 of the Local Government Code, among the civil remedies for the
collection of delinquent local taxes, fees or charges, and other revenues is
"by administrative action through distraint of goods, chattels or effects, and
other personal property of whatever character, including stocks and other
securities, debts, credits, bank accounts, and interest in and rights to personal
property, and by levy upon real property and interest in or rights to real
property."

Petitioner Mayor Melchor Maderazo had the right to padlock the stall of
Medaria Verutiao on January 21, 1997, after she refused to vacate the stall
despite his demand. Verutiao had no more lease contract and was no longer
operating the stall for the purpose it was intended, in violation of Municipal
Ordinance No. 2, Series of 1984. Moreover, she was delinquent in the
payment of monthly rentals. Under the circumstances, and in view of her
violation of Municipal Ordinance No. 2, Series of 1984, petitioner Mayor
Melchor Maderazo was duty-bound to institute the necessary administrative
proceedings or to take immediate action to correct the violation, protect the
property of the Municipality, and ensure that the delinquent revenues from
the subject stall would be collected.

Petitioners aver that in closing down the stall, Verutiao was not ejected
therefrom but was merely stopped from improperly using it, in the exercise
of petitioner Mayor Maderazo's power and duty to enforce all laws and
ordinances relative to the governance of the Municipality and the exercise of
its corporate powers.

The Special Prosecutor, for his part, avers that, under the Local Government
Code, the local government concerned may avail of the following remedies,
either alternatively or simultaneously, for the collection of fees or charges:
1) the administrative remedies of distraint of personal properties or levy
upon real properties; and 2) by judicial action. But from the evidence,
petitioner Melchor Maderazo cancelled the lease contract and ordered,
which the other petitioners obeyed, to padlock and to subsequently cart and
haul the goods of spouses Verutiao inside their market stall to the precinct,
under the guise that it was done in accordance with the law. He did not avail
of the judicial action which is specifically provided in the Local Government
Code. He failed to avail of the administrative remedies of distraint and levy
and its procedure as provided in Section 175 thereof.

Even if Verutiao was delinquent in the payment of their rentals, petitioner

Melchor Maderazo is mandated to consider and resolve the exemptions
being claimed by the former and which were properly communicated to him.
Petitioner Melchor Maderazo cannot take the law into his hands, and order
the seizure of the goods of the spouses Verutiao which was implemented by
the other petitioners, in clear violation of the law.

He maintains that nowhere in the Local Government Code is the Mayor of a

Municipality authorized to take the law into his own hands. Instead, the
Local Government Code provides specifically for the measures, procedures
and remedies to be undertaken in cases of delinquency in the payment of
fees or charges due to the local government concerned. Ordering to padlock,
and to subsequently cart and haul the goods inside the market stall being
rented by Verutiao to the police precinct without any court order or notice of
distraint and levy prejudiced the spouses. Petitioner Mayor Maderazo's
duties of protecting the properties of the Municipality and enforcing the law
do not include depriving Verutiao of her means of livelihood. Perido and
Maderazo, Jr. cannot escape criminal liability by merely saying that they
were following the orders of Melchor Maderazo as only lawful orders
deserved to be followed and obeyed. The participation of petitioners Perido
and Maderazo, Jr. went beyond just being witnesses because they admitted
that "they opened the stall and x x x accounted for the goods and special
effects contained inside." Petitioners Perido and Maderazo, Jr. were invited
to be at the vicinity as witnesses but they acted beyond their participation as
mere witnesses; they became participants to an illegal and unauthorized act.
Petitioners Seniforo Perido and Victor Maderazo, Jr. occupy the positions of
Station Commander and Member of the Sangguniang Bayan, respectively.
They are public servants, and as such, owe the constituents of the
Municipality of Caibiran, including Verutiao, the performance of their
official duties and obligations to a higher degree of commitment and
standards, and must necessarily conform to the norms of conduct set forth by
the law.

Verutiao was not at the subject stall and could not have possibly been
intimidated or forced by the accused. She could, likewise, not be prevented
from doing business because they were not transacting business at that time.
By the actuations of the petitioners, Verutiao was tormented and distressed.
Unjust vexation is a form of light coercion which 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.

The Ruling of the Court

On the first issue, we agree with the contention of respondents that indeed,
the prosecution adduced proof beyond reasonable doubt to prove the guilt of
petitioners Mayor Melchor Maderazo and Sangguniang Bayan Member
Victor Maderazo, Jr. for unjust vexation.

Article 287 of the Revised Penal Code reads:

Art. 287. Light coercions. - Any person, who by means of violence, shall
seize anything belonging to his debtor for the purpose of applying the same
to the payment of the debt, shall suffer the penalty of arresto mayor in its
minimum period and a fine equivalent to the value of the thing, but in no
case less than 75 pesos.

Any other coercions or unjust vexations shall be punished by arresto menor

or a fine ranging from 5 to 200 pesos, or both.

The second paragraph of the Article is broad enough to include any human
conduct which, although not productive of some physical or material harm,
could unjustifiably annoy or vex an innocent person.32Compulsion or
restraint need not be alleged in the Information, for the crime of unjust
vexation may exist without compulsion or restraint. However, in unjust
vexation, being a felony by dolo, malice is an inherent element of the crime.
Good faith is a good defense to a charge for unjust vexation because good
faith negates malice. The paramount question to be considered is whether
the offender's act caused annoyance, irritation, torment, distress or
disturbance to the mind of the person to whom it is directed.33The main
purpose of the law penalizing coercion and unjust vexation is precisely to
enforce the principle that no person may take the law into his hands and that
our government is one of law, not of men. It is unlawful for any person to
take into his own hands the administration of justice.34
In the present case, petitioner Melchor Maderazo opted not to testify in his
behalf. The Sandiganbayan convicted the petitioners of unjust vexation on
its findings that petitioner Mayor Melchor Maderazo had the stall of
Verutiao padlocked and had it reopened, and had the contents of the stall
inventoried and taken to the police station. However, the padlocking of the
stall of Verutiao by petitioner Melchor Maderazo took place on January 21,
1997 and not on January 27, 1997. Petitioners were charged with grave
coercion, but were convicted of unjust vexation for the eviction of Verutiao
on January 27, 1997 and not on January 21, 1997 following the inventory of
the contents of the stall and the transportation thereof to the police station.
The only events that took place on January 27, 1997 were the unlocking of
the padlock of the stall, the inventory of its contents by petitioner Victor
Maderazo on order of petitioner Melchor Maderazo, and the transportation
of the goods to the police station where it was stored. Petitioners Victor
Maderazo, Jr. and Seniforo Perido were not present when the stall was
padlocked on January 21, 1997.

We agree with respondent's contention that based on the evidence on record,

the overt acts of petitioners Mayor Melchor Maderazo and Victor Maderazo,
Jr., on January 27, 1997, annoyed, irritated and caused embarrassment to
her. It was petitioner Melchor Maderazo who ordered petitioner Victor
Maderazo, Jr. to have the stall reopened, to conduct an inventory of the
contents thereof, and to effect the transportation of the goods to the police
station. Petitioner Victor Maderazo, who was a Sangguniang Bayan
member, obeyed the order of the Mayor.

Although Verutiao was not at her stall when it was unlocked, and the
contents thereof taken from the stall and brought to the police station, the
crime of unjust vexation was nevertheless committed. For the crime to exist,
it is not necessary that the offended party be present when the crime was
committed by said petitioners. It is enough that the private complainant was
embarrassed, annoyed, irritated or disturbed when she learned of the overt
acts of the petitioners. Indeed, by their collective acts, petitioners evicted
Verutiao from her stall and prevented her from selling therein, hence, losing
income from the business. Verutiao was deprived of her possession of the
stall from January 21, 1997.

Petitioners Mayor Melchor Maderazo and Sangguniang Bayan member

Victor Maderazo, Jr., had no right, without judicial intervention, to oust
Verutiao from the stall, and had her merchandise transported to the police
station, thereby preventing her from doing business therein and selling her
merchandize. Petitioner Mayor Maderazo had no right to take the law into
his own hands and deprive Verutiao of her possession of the stall and her
means of livelihood.

Admittedly, the lease contract of Verutiao and the Municipality expired on

January 13, 1997 without having been renewed, and petitioner Mayor
ordered Verutiao to vacate the stall, also for her failure to pay the rent
amounting to P2,532.00. Under Section 44 of Ordinance No. 2, Series of
1999, the stall is considered vacant and shall be disposed of. However,
petitioner had to file an action for unlawful detainer against Verutiao to
recover possession of her stall and cause her eviction from said
premises.35 Verutiao insisted on her right to remain as lessee of her stall and
to do business thereat. Such action is designed to prevent breaches of the
peace and criminal disorder and prevent those believing themselves entitled
to the possession of the property resort to force to gain possession rather
than to secure appropriate action in the court to assert their claims.36 It was
incumbent upon petitioner Mayor to institute an action for the eviction of
Verutiao. He cannot be permitted to invade the property and oust the lessee
who is entitled to the actual possession and to place the burden upon the
latter of instituting an action to try the property right.37

An action for forcible entry and unlawful detainer are summary proceedings
established for the purpose of providing expeditious means of protecting
actual possession, which is presumed to be lawful until the contrary is
proven. As this Court emphasized in Dizon v. Concina:38

Succinctly did this Court explain in one case the nature of the forcible entry
action: "In giving recognition to the action of forcible entry and detainer the
purpose of the law is to protect the person who in fact has actual possession;
and in case of controverted right, it requires the parties to preserve the status
quo until one or the other of them sees fit to invoke the decision of a court of
competent jurisdiction upon the question of ownership. It is obviously just
that the person who has first acquired possession should remain in
possession pending this decision; and the parties cannot be permitted
meanwhile to engage in a petty warfare over the possession of the property
which is the subject of dispute.39

Undeniably, petitioner Mayor is tasked to enforce all laws and ordinances

relative to the governance of the Municipality and to implement all approved
programs, projects, services and activities of the Municipality40 and to ensure
that all taxes and other revenues of the Municipality are collected.41 He is
obliged to institute or cause to be instituted administrative or judicial
proceedings for the recovery of funds and property.42 However, in the
performance of his duties, petitioner Mayor should act within the confines of
the law and not resort to the commission of a felony. A public officer is
proscribed from resorting to criminal acts in the enforcement of laws and
ordinances. He must exercise his power and perform his duties in
accordance with law, with strict observance of the rights of the people, and
never whimsically, arbitrarily and despotically.

Even as we find petitioners Mayor Melchor Maderazo and Victor Maderazo,

Jr. guilty of unjust vexation, we find petitioner Seniforo Perido deserving of
an acquittal. The Prosecution failed to prove that he conspired with the other
petitioners. He was at the situs of the stall merely to witness the inventory
and ensure peace and order. He agreed to have the contents of the stall of
Verutiao stored in the police station presumably to protect the property from
the elements and asportation by thieves until after Verutiao shall have
claimed the same or the disposition thereof determined by the authorities
concerned.

IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY

GRANTED. The Decision of the Sandiganbayan is AFFIRMED with
MODIFICATION that petitioner Seniforo Perido is ACQUITTED of the
crime charged. The bail bond posted by him for his provisional liberty is
cancelled. No costs.

SO ORDERED.

Panganiban, C.J., C

FIRST DIVISION

July 17, 2017

G.R. No. 221443

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee 

vs.
DOMINADOR LADRA, Accused-Appellant

DECISION

PERLAS-BERNABE, J.:

On appeal1 is the Decision2 dated June 30, 2015 rendered by the Court of

Appeals (CA) in CA-G.R. CR-HC No. 01160-MIN, which affirmed the Joint
Decision3 dated February 6, 2013 of the Regional Trial Court of Cagayan de
Oro City, Branch 22 (RTC) in FC Crim. Case Nos. 2008-426 and 2008-427
finding accused-appellant Dominador Ladra (accused-appellant) guilty
beyond reasonable doubt of Rape and Unjust Vexation.

The Facts

Private complainant AAA4 was born on September 3, 19955 and the eldest of

five (5) siblings. At the time material to these cases, she lived with her
family in a remote area in Dumarait, Balingasag, Misamis Oriental.6
On the other hand, it was alleged that accused-appellant was a relative of
BBB, AAA's mother, who allowed him to stay with their family out of pity.
He ran errands for them and attended to the children when BBB was busy
washing clothes and her husband, CCC, was tending to their farm.7

Sometime between 2000 to 2001,8 when AAA was around five (5) years old,
she and her siblings were left at home with accused-appellant. After their
meal, accused-appellant ordered them to sleep. Suddenly, AAA was
awakened when she felt accused-appellant, who was already naked, on top
of her, forced his penis into her vagina, and made push and pull movements,
causing her pain. Accused-appellant threatened to kill her if she told anyone.
Thereafter, accused-appellant repeatedly molested her, each time bringing
his bolo with him.9 The sexual abuse ceased in 2002, when accused-
appellant left their house.10

Years later, or on the evening of April 16, 2008, AAA - who was already
twelve (12) years old at the time - was surprised when she saw accused-
appellant in their kitchen. To her shock, accused-appellant squeezed her
vagina and told her that they were going to visit his house. Scared, AAA
cried and told her cousin, DDD, about the incident.11 She also told DDD
about the first rape incident and the subsequent ones committed by accused-
appellant. Eventually, AAA told BBB about her traumatic experiences in the
hands of accused-appellant when she was five (5) years old. Together, they
reported the incident to the barangay and thereafter, had the incident
recorded in the police blotter.12 Later, AAA filed criminal cases against
accused-appellant, who was subsequently arrested.13

On April 19, 2008, Dr. Ma. Josefina Villanueva Taleon (Dr. Taleon),
Medical Officer III at the Northern Mindanao Medical Center, conducted a
physical examination on AAA and found the presence of old healed
lacerations in her genitalia at the three (3), eigth (8), and ten (10) o'clock
positions.14

Hence, accused-appellant was charged with violation of Section 5 (b) of

Republic Act No. (RA) 7610 in an Information15 that reads:

Sometime in 2000 up to 2001, when the private complainant is about five to

six [5 to 6] years old, at Dumarait, Balingasag, Misamis Oriental,
Philippines, within the jurisdiction of the Honorable Court, the abovenamed
accused knowing full well the minority, with obvious ungratefulness, did
then and there willfully, unlawfully and feloniously commit acts of sexual
abuse on one [AAA], five to six years old, by inserting his penis into her
vagina, against her will and without her consent, and which act debases,
degrades and demeans the intrinsic worth and dignity of [AAA] as a child
and as a human being and is prejudicial to the child's development.

CONTRARY TO and in violation of Section 5 Paragraph B of RA 7610.16

Likewise, accused-appellant was charged with Acts of Lasciviousness in an
Information17 that reads:

On 16 April 2008 at about 8:00 o'clock in the evening in Dumarait,

Balingasag, Misamis Oriental, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, who knew
full well the minority of the victim, through force and intimidation, actuated
by lust or lewd design, did then and there willfully, unlawfully and
feloniously commit a lascivious conduct on twelve-year [12] old [AAA] by
squeezing her vagina against her will and to her damage and prejudice.

CONTRARY TO and in violation of Article 336 of the Revised Penal Code

as amended.18

When arraigned, accused-appellant entered a plea of not guilty to the

offenses charged.19

In defense, accused-appellant denied the charges and claimed that AAA' s

family were angry at him when he left their house, leaving no one to attend
to their errands. He asserted that he left them because he could no longer
understand what they were asking him to do for them.20

The RTC Ruling

In a Joint Decision21 dated February 6, 2013, the RTC convicted accused-

appellant of: (a) Rape in FC Crim. Case No. 2008-426, sentencing him to
suffer the penalty of reclusion perpetua and to pay AAA the amounts of
₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages, and
₱30,000.00 as exemplary damages; and (b) Unjust Vexation in FC Crim.
Case No. 2008-427, sentencing him to suffer the penalty of imprisonment
for a period of 30 days of arresto menor and to pay a fine of ₱200.00 with
accessory penalties.22

In finding accused-appellant guilty of Rape in FC Criminal Case No. 2008-

426, the RTC found that although the allegations in the Information are
sufficient to make out a case for child abuse, it also constitutes Statutory
Rape under Article 266-A of the Revised Penal Code (RPC), as amended.
Relative thereto, it found that AAA's narration of her defloration in the
hands of accused-appellant more than sufficiently established the offense, as
well as the identity of the offender. Despite her tender age, she was
straightforward, clear, categorical, and positive in her testimony, indicating
that she was telling the truth. Moreover, her account of the incident was
supported by the medical findings of Dr. Taleon, who testified that there
were healed lacerations in AAA' s genitalia at the 3, 8, and 10 o'clock
positions.23

As regards FC Criminal Case No. 2008-427, the RTC found that the
prosecution has established that on the evening of April 16, 2008, when
AAA went to their kitchen, she encountered accused-appellant who, without
warning, "just squeezed her vagina."24 The RTC opined, however, that the
prosecution failed to establish the element of lasciviousness or lewdness as
would justify accused-appellant's conviction for the crime of Acts of
Lasciviousness. The overt act of accused-appellant of squeezing AAA's
vagina did not show that he intended to gratify his sexual desires nor was it
demonstrative of carnal lust. Nonetheless, AAA was clearly annoyed by the
act; perforce, the R TC found accused-appellant guilty of Unjust Vexation,
defined and penalized under Article 28725 of the RPC.26

Conversely, the RTC brushed aside the defense proffered by accused-

appellant, which it found insufficient to debunk the positive evidence of the
prosecution.27 Dissatisfied, accused-appellant appealed his conviction.28

The CA Ruling

In its assailed Decision29 dated June 30, 2015, the CA affirmed in toto30 the

RTC's Joint Decision convicting accused-appellant of Rape and Unjust
Vexation. Apart from concurring with the RTC's findings and conclusions,
the CA found no merit in accused-appellant's contention that it was
impossible for him to commit the crime as AAA's younger brother was
sleeping beside her at the time of the alleged rape incident. Disregarding the
argument, the CA ruled that the presence of another person at the scene does
not render it impossible for accused-appellant to commit the crime of Rape.
As regards its affirmance of accused-appellant's conviction for Unjust
Vexation, the CA did not proffer any justification.31

Aggrieved, accused-appellant is now before the Court seeking the reversal of

his conviction.32

The Issue Before the Court

The sole issue for the Court's resolution is whether or not the CA erred in
affirming accused-appellant's conviction for Rape and Unjust Vexation.

The Court's Ruling

The appeal has no merit.

Time and again, the Court has held that factual findings of the trial court,
especially on the credibility of witnesses, are accorded great weight and
respect and will not be disturbed on appeal. This rule, however, admits of
exceptions such as where there exists a fact or circumstance of weight and
influence which has been ignored or misconstrued, or where the trial court
has acted arbitrarily in its appreciation of the facts.33

In FC Criminal Case No. 2008-426, the Court accords credence to the RTC's
finding, as affirmed by the CA, that accused-appellant indeed committed the
crime of Rape against then five (5)-year-old AAA. As astutely observed by
the R TC, which had the opportunity to personally scrutinize AAA's conduct
and demeanor during trial, she was a credible witness whose testimony must
be given great weight. The trial judge's evaluation, which the CA sustained,
now binds the Court, leaving to the accused-appellant the burden to bring to
the fore facts or circumstances of weight, which were otherwise overlooked,
misapprehended or misinterpreted that would materially affect the
disposition of the case differently if duly considered.34 Unfortunately for
accused-appellant, he miserably failed to discharge this burden, and the
Court finds no reason to reverse the CA's conclusions.

Moreover, the CA correctly disregarded accused-appellant's argument that

he could not have committed the crime in the presence of AAA's younger
brother, who slept beside her.35 It cannot be denied that the presence of
AAA' s brother in the room does not negate the commission of the crime.
"Rape can be committed even in places where people congregate, in parks,
along the roadside, within school premises, inside a house where there are
other occupants, and even in the same room where other members of the
family are also sleeping. It is not impossible or incredible for the members
of the victim's family to be in deep slumber and not to be awakened while a
sexual assault is being committed. It is settled that lust is not a respecter of
time or place and rape is known to happen in the most unlikely places."36

In view thereof, the courts a quo correctly found accused-appellant guilty of

Rape and sentenced him to suffer the penalty of reclusion
perpetua. However, the Court modifies the amounts of damages awarded
conformably with prevailing jurisprudence.37 Accordingly, accused-
appellant is ordered to pay AAA the amount of ₱75,000.00 as moral
damages, ₱75,000.00 as civil indemnity, and ₱75,000.00 as exemplary
damages.

In FC Criminal Case No. 2008-427, however, the Court disagrees with the
CA's affirmance of the RTC's finding that accused-appellant can only be
held guilty of Unjust Vexation. After a punctilious review of the evidence,
the Court finds that he should instead be convicted of Acts of
Lasciviousness, as charged in the information, in relation to Section 5 (b) of
RA 7610.

Acts of Lasciviousness is defined and penalized under Article 336 of the

RPC, which reads:

Article 336. Acts of lasciviousness. - Any person who shall commit any act
of lasciviousness upon other persons of either sex, under any of the
circumstances mentioned on the preceding article, shall be punished
by prision correccional.

Conviction for such crime requires the concurrence of the following

elements: (a) that the offender commits any act of lasciviousness or
lewdness; (b) that it is done under any of the following
circumstances: (i) through force, threat, or intimidation, (ii) when the
offended party is deprived of reason or otherwise unconscious, (iii) by
means of fraudulent machination or grave abuse of authority, and (iv) when
the offended party is under twelve (12) years of age or is demented, even
though none of the circumstances mentioned above be present; and (c) that
the offended party is another person of either sex.38

Meanwhile, Section 5 (b) of RA 7610 provides:

Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether

male or female, who for money, profit, or any other consideration or due to
the coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion

perpetua shall be imposed upon the following:

xxxx

(b) Those who commit the act of sexual intercourse or lascivious

conduct with a child exploited in prostitution or subject to other sexual

abuse; Provided, That when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and
Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape
or lascivious conduct, as the case may be: Provided, That the penalty for
lascivious conduct when the victim is under twelve (12) years of age shall be
reclusion temporal in its medium period; and

Before an accused can be held criminally liable for lascivious conduct under
Section 5 (b) of RA 7610, the requisites of the crime of Acts of
Lasciviousness as penalized under Article 336 of the RPC above-enumerated
must be met in addition to the requisites for sexual abuse under Section 5 (b)
of RA 7610, as follows: (1) the accused commits the act of sexual
intercourse or lascivious conduct; (2) the said act is performed with a child
exploited in prostitution or subjected to other sexual abuse; and (3) that the
child, whether male or female, is below 18 years of age.39

A judicious examination of the records reveals that all the elements of the
crime of Acts of Lasciviousness under the RPC and lascivious conduct
under Section 5 (b) of RA 7610 have been sufficiently established. The
prosecution was able to prove AAA's minority at the time of the incident
through the presentation of her Certificate of Live Birth40showing that she
was born on September 3, 1995. At the time of the commission of the
lascivious act, AAA was then 12 years old. It was likewise established that
accused-appellant, an adult who exercised influence on AAA, committed a
lascivious act by "squeezing" her vagina.

The courts a quo convicted accused-appellant of the crime of Unjust

Vexation instead of Acts of Lasciviousness on the finding that there was no
element of lasciviousness or lewdness in accused-appellant's act. In its
Decision, the RTC even pointed out that accused-appellant could not have
intended to lie with AAA at that moment considering that she still had her
underwear on, and the act of "squeezing" her private part was not
demonstrative of carnal lust.41

The Court disagrees.

"Lascivious conduct" is defined in Section 2 of the Rules and Regulations on

the Reporting and Investigation of Child Abuse Cases, as follows:

[T]he intentional touching, either directly or through clothing, of the

genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of
any object into the genitalia, anus or mouth, of any person, whether of the
same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person, bestiality, masturbation,
lascivious exhibition of the genitals or pubic area of a person.

In Amployo v. People,42 the Court expounded on the definition of the word

"lewd," to wit:

The term "lewd" is commonly defined as something indecent or obscene; it

is characterized by or intended to excite crude sexual desire. That an accused
is entertaining a lewd or unchaste design is necessarily a mental process the
existence of which can be inferred by overt acts carrying out such
intention, i.e., by conduct that can only be interpreted as lewd or lascivious.
The presence or absence of lewd designs is inferred from the nature of the
acts themselves and the environmental circumstances. What is or what is not
lewd conduct, by its very nature, cannot be pigeonholed into a precise
definition. As early as US. v. Gomez we had already lamented that -

It would be somewhat difficult to lay down any rule specifically establishing

just what conduct makes one amenable to the provisions of article 439 of the
Penal Code. What constitutes lewd or lascivious conduct must be
determined from the circumstances of each case. It may be quite easy to
determine in a particular case that certain acts are lewd and lascivious, and it
may be extremely difficult in another case to say just where the line of
demarcation lies between such conduct and the amorous advances of an
ardent lover.43

After a careful evaluation, the Court finds that the mere fact of "squeezing"
the private part of a child - a young girl 12 years of age - could not have
signified any other intention but one having lewd or indecent design. It must
not be forgotten that several years prior, accused-appellant had raped AAA
in the same house, for which act he was appropriately convicted. Indeed, the
law indicates that the mere touching - more so, "squeezing," in this case,
which strongly suggests that the act was intentional - of AAA's genitalia
clearly constitutes lascivious conduct. It could not have been done merely to
annoy or vex her, as opined by the courts a quo. That AAA was fully
clothed at that time, which led the courts a quo to believe that accused-
appellant could not have intended to lie with her, is inconsequential. "'Lewd'
is defined as obscene, lustful, indecent, and lecherous. It signifies that form
of immorality which has relation to moral impurity; or that which is carried
on a wanton manner."44 As such, accused-appellant's act of squeezing
AAA's vagina was a lewd and lascivious act within the definitions set by law
and jurisprudence.

Under Section 5 (b) of RA 7610, the prescribed penalty for lascivious

conduct is reclusion temporal in its medium period to reclusion perpetua. In
the absence of mitigating or aggravating circumstances, the maximum term
of the sentence shall be taken from the medium period45 thereof. Applying
the Indeterminate Sentence Law, the minimum term shall be taken within
the range of the penalty next lower in degree, which is prision mayor in its
medium and maximum periods to reclusion temporal in its minimum
period.46 Accordingly, accused-appellant is sentenced to suffer an
indeterminate penalty of imprisonment ranging from ten (10) years and one
(1) day of prision mayor, as minimum, to 17 years, four (4) months, and one
(1) day of reclusion temporal, as maximum. In addition, and conformably
with recent jurisprudence, accused-appellant is ordered to pay AAA the
amounts of ₱20,000.00 as civil indemnity, ₱l5,000.00 as moral damages, ₱l
5,000.00 as exemplary damages, and ₱l 5,000.00 as fine, all of which shall
earn interest at the rate of six percent (6%) per annum from the date of
finality of this judgment.47

WHEREFORE, the Decision dated June 30, 2015 of the Court of Appeals in

CA-G.R. CR-HC No. 01160-MIN is hereby AFFIRMED with the
following MODIFICATIONS:

(1) In FC Criminal Case No. 2008-426, accused-appellant Dominador Ladra

is found guilty beyond reasonable doubt of the crime of Rape under Article
266-A of the Revised Penal Code, as amended, and, accordingly, sentenced
to suffer the penalty of reclusion perpetua and to pay private complainant
the amounts of ₱75,000.00 as moral damages, ₱75,000.00 as civil
indemnity, and ₱75,000.00 as exemplary damages;

(2) In FC Criminal Case No. 2008-427, accused-appellant Dominador Ladra

is found guilty beyond reasonable doubt of the crime of Acts of
Lasciviousness under Article 336 of the Revised Penal Code, as amended, in
relation to Section 5 (b) of Republic Act No. 7610 and, accordingly,
sentenced to suffer the indeterminate prison term of 10 years and one (1) day
of prision mayor, as minimum, to 17 years, four (4), months and one (1) day
of reclusion temporal, as maximum, and to pay private complainant the
amounts of ₱20,000.00 as civil indemnity, ₱15,000.00 as moral damages, ₱l
5,000.00 as exemplary damages, and ₱l 5,000.00 as fine;

(3) Accused-appellant Dominador Ladra is ordered to pay the private

complainant interest on all monetary awards at the legal rate of six percent
(6%) per annum from the date of finality of this Decision until full payment.
SO ORDERED.

THIRD DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 183619

Appellee,  

  Present:

   

  CARPIO, J.,

     Chairperson,

          - versus - CHICO-NAZARIO,

  VELASCO, JR.,

  NACHURA, and

  PERALTA, JJ.

   

  Promulgated:

SALVINO SUMINGWA,  

Appellant.    October 13, 2009

   
 x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

                            

 
          On appeal before us is the January 31, 2008 Court of Appeals (CA)
Decision[1] in CA-G.R. CR No. 30045 affirming with modification the
February 14, 2006 Regional Trial Court[2] (RTC) Consolidated
Judgment[3] against appellant Salvino Sumingwa in Criminal Case Nos. 1644
and 1645 for Acts of Lasciviousness; 1646, 1649 and 1654 for Rape; 1651
for Attempted Rape; and 1655 for Unjust Vexation. Assailed also is the June
5, 2008 CA Resolution[4] denying appellant’s motion for reconsideration.

          In twelve Informations, the prosecution charged appellant with two (2)
counts of Acts of Lasciviousness,[5] four (4) counts of Rape,[6] three (3)
counts of Unjust Vexation,[7] one (1) count of Other Light Threats,[8] one (1)
count of Maltreatment,[9] and one (1) count of Attempted Rape[10] for acts
committed against his minor[11] daughter AAA from 1999-2001.

          Appellant pleaded “not guilty” to all the charges.  On September 24,

2004, the RTC dismissed[12] Criminal Case Nos. 1647 for Rape; 1648 for
Unjust Vexation; 1650 for Other Light Threats; 1652 for Unjust Vexation;
and 1653 for Maltreatment, on the basis of the Demurrer to Evidence[13] filed
by appellant.

Sometime in August 1999, between 8:00 and 10:00 in the morning, AAA,
together with her brothers and her father, appellant herein, was in their
residence in Mountain Province, watching television. Appellant called AAA
and ordered her to sit in front of him.  As she was sitting, appellant told her
that it was not good for a girl to have small breasts.  Suddenly, he inserted
his hands into AAA’s shirt then fondled her breast.  AAA resisted by
moving her hands backwards.[14] 

          One afternoon in September 1999, AAA’s mother and brothers went

to school leaving AAA and appellant in their house. While in the master’s
bedroom, appellant ordered AAA to join him inside. There, appellant
removed his undergarments then forced her to grasp and fondle his penis
until he ejaculated.  Appellant thereafter told her not to be malicious about it.
[15]
  

          The same incident took place in August 2000.  This time, appellant

forced AAA to lie down on the bed, went on top of her, removed her short
pants and panty, then rubbed his penis against her vaginal orifice. AAA
resisted by crossing her legs but appellant lifted her right leg and partially
inserted his penis into her vagina. As she struggled, appellant stood up then
ejaculated. AAA felt numbness on her buttocks after the bestial act
committed against her.[16]

          Appellant repeated his dastardly act against AAA on separate

occasions in September and November 2000. During these times, appellant
satisfied himself by rubbing his penis against AAA’s vagina without trying
to penetrate it. After reaching the top of his lust, he used AAA’s short pants
to wipe his mess. Instead of keeping her harrowing experience to herself,
AAA narrated it to her best friend.[17] 

          On November 24, 2000, appellant approached AAA and told her that
he wanted to have sex with her.  When she refused, appellant forcibly
removed her pants and boxed her right buttock.  AAA still refused, which
angered appellant.  He then went to the kitchen and returned with a bolo
which he used in threatening her. Luckily, AAA’s grandmother arrived,
prompting appellant to desist from his beastly desires.[18]

          On December 20, 2000, AAA and her best friend were doing their
school work in front of the former’s house.  When appellant arrived, he
embraced AAA.  He, thereafter, pulled her inside the house and kissed her
on the lips.[19]

          The last incident occurred inside the comfort room of their house
on May 27, 2001.  When AAA entered, appellant pulled down her short
pants and panty, unzipped his trousers, brought out his penis, then repeatedly
rubbed it on her vagina while they were in a standing position.[20]

          AAA decided to report the sexual abuses to her grandmother who

forthwith brought her to the National Bureau of Investigation where she was
examined by the medico-legal officer.  It was found during the examination
that there were no extragenital physical injuries on AAA’s body but there
were old, healed, and incomplete hymenal lacerations.[21] 

          Appellant denied all the accusations against him.  He claimed that in

August and September 1999, he was at the house of his mistress
in Antipolo City.  He also explained that in August 2000, he stayed
in Baguio City and worked there as a karate instructor.  He added that he
only went home in September 2000 but left again in October for Quirino,
Ilocos Sur where he stayed for three weeks. When he went back home, his
wife informed him that AAA had not been coming home.  Thereafter,
appellant went to Baguio City to buy medicine for his wife, then returned
home again on the third week of December 2000.  While there, he was
confronted by his wife about his womanizing.  His wife got mad and refused
to forgive him despite his repeated pleas. Consequently, he became furious
and almost choked his wife to death when she ignored and refused to talk to
him.  This prompted him to leave and go back to Baguio.[22]

          Sometime in April 2001,         appellant went back home to reconcile

with his wife.  While talking to his wife and the latter’s family, his mother-
in-law berated him and demanded his separation from his wife.  Appellant
got mad and threatened to kill his wife’s family. His mother-in-law, in turn,
threatened to file charges against him.[23]

          To belie the claim of AAA that she was sexually abused in August,
November and December 2000, allegedly during school hours, her teacher
testified that the former was not absent in class during those times.[24]

          On November 24, 2004, AAA executed an Affidavit of

Recantation[25] claiming that while appellant indeed committed lascivious
acts against her, she exaggerated her accusations against him.  She explained
that appellant did not actually rape her, as there was no penetration. She
added that she charged appellant with such crimes only upon the prodding of
her mother and maternal grandmother.

          On February 14, 2006, the RTC rendered a decision convicting

appellant of six (6) counts of acts of lasciviousness,[26] one (1) count of
attempted rape[27] and one (1) count of unjust vexation,[28] the dispositive
portion of which reads:

          WHEREFORE, a Consolidated Judgment is hereby rendered

sentencing Salvino Sumingwa to suffer –

1. The penalty of six (6) months of [arresto mayor] as minimum to six (6)
years of [prision correccional] as maximum; and ordering him to pay the
offended party P10,000.00 [as] indemnity [ex-delicto], P10,000.00 as moral
damages and P5,000.00 as exemplary damages for each count of Acts of
Lasciviousness charged in Crim. Cases 1644, 1645, 1646, 1649 and 1654;  

 
2. The penalty of six (6) years of [prision correccional] as minimum to
twelve (12) years of [prision mayor] as maximum; and ordering said
offender to pay the victim P15,000.00 as indemnity [ex-delicto], P15,000.00
as moral damages and P10,000.00 as exemplary damages in Crim. Case
1651 for Attempted Rape; and

3. The penalty of thirty (30) days of [arresto menor] and fine of P200.00 for
Unjust Vexation in Crim. Case 1655.

SO ORDERED.[29]

           The trial court gave credence to AAA’s testimonies on the alleged

lascivious acts committed against her.  In view of the withdrawal of her
earlier claim of the fact of penetration, the court sustained the innocence of
appellant on the rape charges and concluded that the crime committed was
only Acts of Lasciviousness.

          In Criminal Case No. 1651, the RTC found that appellant committed
all the acts of execution of the crime of Rape, but failed to consummate it
because of the arrival of AAA’s grandmother.  Hence, he was convicted of
attempted rape.  In embracing and kissing AAA in full view of the latter’s
best friend, appellant was convicted of Unjust Vexation.

          On appeal, the CA affirmed the conviction of appellant, except that in

Criminal Case No. 1646; it convicted him of Qualified Rape instead of Acts
of Lasciviousness. The pertinent portion of the assailed decision reads:

WHEREFORE, premises considered, herein appeal is

hereby DISMISSED for evident lack of merit and the assailed Consolidated
Judgment dated 14 February 2006 is hereby AFFIRMED with the following
MODIFICATION:

1.         The Appellant SALVINO SUMINGWA is hereby convicted of the

crime of QUALIFIED RAPE in Criminal Case No. 1646 and the penalty
of RECLUSION PERPETUA is hereby imposed upon him.  The Appellant
is likewise ordered to pay the Victim, [AAA], civil indemnity in the amount
of Php75,000.00 as well as moral damages in the amount of Php50,000.00,
in conformity with prevailing jurisprudence.

2.         In Criminal Case No. 1651 for Attempted Rape, the Appellant, is

hereby ordered to indemnify the victim [AAA] in the sum of P30,000.00 as
civil indemnity, plus the sum of P25,000.00 as moral damages.

SO ORDERED.[30]

The appellate court concluded that, notwithstanding AAA’s retraction of her

previous testimonies, the prosecution sufficiently established the
commission of the crime of Rape.  It added that the qualifying circumstances
of minority and relationship were adequately proven.

Hence, this appeal.

First, in light of the recantation of AAA, appellant questions the credibility

of the prosecution witnesses and insists that his constitutional right to be
presumed innocent be applied.[31]  Second, he argues that in Criminal Case
No. 1651 for Attempted Rape, he should only be convicted of Acts of
Lasciviousness, there being no overt act showing the intent to have sexual
intercourse.[32] Lastly, he insists that he could not be convicted of all the
charges against him for failure of the prosecution to show that he employed
force, violence or intimidation against AAA; neither did the latter offer
resistance to appellant’s advances.[33]

          In rape cases particularly, the conviction or acquittal of the accused

most often depends almost entirely on the credibility of the complainant’s
testimony.  By the very nature of this crime, it is generally unwitnessed and
usually the victim is left to testify for herself.  When a rape victim’s
testimony is straightforward and marked with consistency despite grueling
examination, it deserves full faith and confidence and cannot be discarded.
[34]
 If such testimony is clear, consistent and credible to establish the crime
beyond reasonable doubt, a conviction may be based on it, notwithstanding
its subsequent retraction. Mere retraction by a prosecution witness does not
necessarily vitiate her original testimony. [35]  

 
A retraction is looked upon with considerable disfavor by the courts.[36] It is
exceedingly unreliable for there is always the probability that such
recantation may later on be repudiated. It can easily be obtained from
witnesses through intimidation or monetary consideration.[37] Like any other
testimony, it is subject to the test of credibility based on the relevant
circumstances and, especially, on the demeanor of the witness on the stand.
[38]
  

          As correctly held by the CA, AAA’s testimony is credible

notwithstanding her subsequent retraction.  We quote with approval its
ratiocination in this wise:

          Clearly, the retraction made by the Victim is heavily unreliable.  The

primordial factor that impelled the Victim to retract the rape charges against
her father was her fear and concern for the welfare of her family especially
her four (4) siblings.  It does not go against reason or logic to conclude that a
daughter, in hopes of bringing back the harmony in her family tormented by
the trauma of rape, would eventually cover for the dastardly acts committed
by her own father. Verily, the Victim’s subsequent retraction does not negate
her previous testimonies accounting her ordeal in the hands for (sic) her
rapist.[39]

          We now proceed to discuss the specific crimes with which appellant
was charged.

Criminal Case Nos. 1646, 1649 and 1654 for Rape

          The CA correctly convicted appellant of Qualified Rape in Criminal

Case No. 1646, and of Acts of Lasciviousness in Criminal Case Nos. 1649
and 1654.

     The crime of rape is defined in Article 266-A of the Revised Penal Code
(RPC), as amended by the Anti-Rape Law of 1997, as follows:

            ART. 266-A. Rape, When and How Committed. - Rape is committed

–
 

            1. By a man who shall have carnal knowledge of a woman under any
of the following circumstances:

            a.         Through force, threat or intimidation.

In her direct testimony, AAA stated that appellant removed her short pants
and panty, went on top of her and rubbed his penis against her vaginal
orifice. She resisted by crossing her legs but her effort was not enough to
prevent appellant from pulling her leg and eventually inserting his penis into
her vagina. Clearly, there was penetration.

It is noteworthy that appellant pulled AAA’s leg, so that he could insert his
penis into her vagina.  This adequately shows that appellant employed force
in order to accomplish his purpose. Moreover, in rape committed by a father
against his own daughter, the former’s moral ascendancy and influence over
the latter may substitute for actual physical violence and intimidation. The
moral and physical dominion of the father is sufficient to cow the victim into
submission to his beastly desires, and no further proof need be shown to
prove lack of the victim’s consent to her own defilement.[40]

While appellant’s conviction was primarily based on the prosecution’s

testimonial evidence, the same was corroborated by physical evidence
consisting of the medical findings of the medico-legal officer that there were
hymenal lacerations. When a rape victim’s account is straightforward and
candid, and is corroborated by the medical findings of the examining
physician, the same is sufficient to support a conviction for rape.[41]

Aside from the fact of commission of rape, the prosecution likewise

established that appellant is the biological father of AAA and that the latter
was then fifteen (15) [42] years old.  Thus, the CA aptly convicted him of
qualified rape, defined and penalized by Article 266-B of the RPC, viz.:

ART. 266-B.  Penalties. – x x x.

x  x  x  x
 

The death penalty shall also be imposed if the crime of rape is committed
with any of the following aggravating/qualifying circumstances:

1)    When the victim is under eighteen (18) years of age and the offender is
a parent, ascendant, step-parent, guardian, relative by consanguinity or
affinity within the third civil degree, or the common law spouse of the parent
of the victim.

 In view of the effectivity of Republic Act (R.A.) 9346, appellant was

correctly meted the penalty of reclusion perpetua, without eligibility for
parole.

As to damages, appellant should pay AAA P75,000.00 as civil indemnity,

which is awarded if the crime is qualified by circumstances that warrant the
imposition of the deathpenalty.[43] In light of prevailing jurisprudence,[44] we
increase the award of moral damages from P50,000.00
to P75,000.00.  Further, the award of exemplary damages in the amount
of P30,000.00[45] is authorized due to the presence of the qualifying
circumstances of minority and relationship.[46]

In Criminal Case Nos. 1649 and 1654, although appellant was charged with
qualified rape allegedly committed on the second week of November 2000
and May 27, 2001, he should be convicted with Acts of Lasciviousness
committed against a child under Section 5(b), Article III of R.A. 7610,
[47]
 which reads:

SEC. 5.  Child Prostitution and Other Sexual Abuse. – Children, whether

male or female, who for money, profit, or any other consideration or due to
the coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion

perpetua shall be imposed upon the following:

 
xxxx

(b)        Those who commit the act of sexual intercourse or lascivious

conduct with a child exploited in prostitution or subjected to other sexual
abuse: Provided, That when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and
Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape
or lascivious conduct, as the case may be:  Provided, That the penalty for
lascivious conduct when the victim is under twelve (12) years of age shall
be reclusion temporal in its medium period; x x x.  (Italics supplied.)

The elements of sexual abuse under the above provision are as follows:

1.         The accused commits the act of sexual intercourse or lascivious

conduct.

2.         The said act is performed with a child exploited in prostitution or

subjected to other sexual abuse.

3.         The child, whether male or female, is below 18 years of age.[48]

AAA testified that in November 2000, while she and appellant were inside
the bedroom, he went on top of her and rubbed his penis against her vaginal
orifice until he ejaculated.[49] She likewise stated in open court that on May
27, 2001, while inside their comfort room, appellant rubbed his penis against
her vagina while they were in a standing position.[50] In both instances, there
was no penetration, or even an attempt to insert his penis into her vagina.

The aforesaid acts of the appellant are covered by the definitions of “sexual
abuse” and “lascivious conduct” under Section 2(g) and (h) of the Rules and
Regulations on the Reporting and Investigation of Child Abuse Cases
promulgated to implement the provisions of R.A. 7610:

 
(g) “Sexual abuse” includes the employment, use, persuasion, inducement,
enticement or coercion of a child to engage in, or assist another person to
engage in, sexual intercourse or lascivious conduct or the molestation,
prostitution, or incest with children;

(h) “Lascivious conduct” means the intentional touching, either directly or

through clothing, of the genitalia, anus, groin, breast, inner thigh, or
buttocks, or the introduction of any object into the genitalia, anus or
mouth, of any person, whether of the same or opposite sex, with an intent
to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of
any person, bestiality, masturbation, lascivious exhibition of the genitals or
public area of a person.

Following the “variance doctrine” embodied in Section 4, in relation to

Section 5, Rule 120 of the Rules of Criminal Procedure, appellant can be
found guilty of the lesser crime of Acts of Lasciviousness committed against
a child. The pertinent provisions read:

            SEC. 4. Judgment in case of variance between allegation and proof.

– When there is variance between the offense charged in the complaint or
information and that proved, and the offense as charged is included in or
necessarily includes the offense proved, the accused shall be convicted of
the offense proved which is included in the offense charged, or of the
offense charged which is included in the offense proved.

            SEC. 5. When an offense includes or is included in another. – An

offense charged necessarily includes the offense proved when some of
the  essential  elements  or  ingredients  of  the former, as alleged in the
complaint or information, constitute the latter. And an offense charged is
necessarily included in the offense proved, when the essential ingredients of
the former constitute or form part of those constituting the latter.

As the crime was committed by the father of the offended party, the
alternative circumstance of relationship should be appreciated.  In crimes
against chastity, such as Acts of Lasciviousness, relationship is always
aggravating.[51]

 
Section 5(b) of R.A. 7610 prescribes the penalty of reclusion temporal in its
medium period to reclusion perpetua. Since there is an aggravating
circumstance and no mitigating circumstance, the penalty shall be applied in
its maximum period --- reclusion perpetua for each count.[52]

Consistent with previous rulings[53] of the Court, appellant must also

indemnify AAA in the amount of P15,000.00 as moral damages and pay a
fine in the same amount in Criminal Case Nos. 1649 and 1654.

Criminal Case Nos. 1644 and 1645 for Acts of Lasciviousness

          Appellant is likewise guilty of two (2) counts of Acts of

Lasciviousness under Section 5(b), Article III, R.A. 7610 committed against
AAA on the second week of August 1999 and on the first week of
September 1999.  AAA testified that in August, appellant, with lewd design,
inserted his hands inside her shirt then fondled her breasts; and in
September, he forced her to hold his penis until he ejaculated. 

          The trial and the appellate courts were correct in giving credence to
the victim’s testimony, in dismissing appellant’s defense of denial and alibi,
and in disbelieving that AAA initiated the criminal cases only upon the
prodding of the latter’s grandmother.  Settled jurisprudence tells us that the
mere denial of one’s involvement in a crime cannot take precedence over the
positive testimony of the offended party.[54]

We are not unmindful of the fact that appellant was specifically charged in
an Information for Acts of Lasciviousness defined and penalized by Article
336 of the RPC. However, the failure to designate the offense by statute, or
to mention the specific provision penalizing the act, or an erroneous
specification of the law violated, does not vitiate the information if the facts
alleged clearly recite the facts constituting the crime charged.[55] The
character of the crime is not determined by the caption or preamble of the
information nor from the specification of the provision of law alleged to
have been violated, but by the recital of the ultimate facts and circumstances
in the complaint or information.[56]

In the present case, the body of the information contains an averment of the
acts alleged to have been committed by appellant which unmistakably refers
to acts punishable under Section 5(b), Article III, R.A. 7610.
 

          Appellant should, therefore, be meted the same penalties and be made

to answer for damages as in Criminal Case Nos. 1649 and 1654.

Criminal Case No. 1651 for Attempted Rape

         

          AAA testified that on November 24, 2000, while AAA and her
brothers were sleeping inside their parents’ bedroom, appellant entered and
asked AAA to have sex with him. When AAA refused, appellant forcibly
removed her clothes and boxed her right buttock.  As she still resisted, he
took a bolo, which he poked at her.  Appellant desisted from committing
further acts because of the timely arrival of AAA’s grandmother. With these,
appellant was charged with Other Light Threats in Criminal Case No. 1650;
Attempted Rape in Criminal Case No. 1651; Unjust Vexation in Criminal
Case No. 1652; and Maltreatment in Criminal Case No. 1653.

          On September 24, 2004, the RTC dismissed Criminal Case Nos. 1650,
1652 and 1653 for insufficiency of evidence.  Criminal Case No. 1651,
among others, proceeded, however.  Eventually, appellant was convicted of
Attempted Rape, which the CA affirmed.

          A careful review of the records reveals, though, that the evidence is
insufficient to support appellant’s conviction of Attempted Rape.

         

Rape is attempted when the offender commences the commission of rape

directly by overt acts and does not perform all the acts of execution by
reason of some cause or accident other than his own spontaneous desistance.
[57]
 The prosecution must, therefore, establish the following elements of an
attempted felony:

1.       The offender commences the commission of the felony directly by

overt acts;

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

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

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

accident other than his spontaneous desistance.[58]

The attempt that the RPC punishes is that which has a logical connection to
a particular, concrete offense; and that which is the beginning of the
execution of the offense by overt acts of the perpetrator, leading directly to
its realization and consummation.[59] In the instant case, the primary question
that comes to the fore is whether or not appellant’s act of removing AAA’s
pants constituted an overt act of Rape.

We answer in the negative.

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.[60]

          The evidence on record does not show that the above elements are
present.  The detailed acts of execution showing an attempt to rape are
simply lacking.  It would be too strained to construe appellant’s act of
removing AAA’s pants as an overt act that will logically and necessarily
ripen into rape. Hence, appellant must be acquitted of Attempted Rape.

          Neither can we hold appellant liable for Other Light Threats for
threatening AAA with a bolo; for Unjust Vexation for undressing her
without her consent, causing disturbance, torment, distress, and vexation;
nor for Maltreatment for boxing the right side of AAA’s buttocks. Although
all of the above acts were alleged in the Information for Attempted Rape in
the Order dated September 24, 2004, Criminal Case Nos. 1650, 1652 and
1653 involving the above crimes were dismissed for insufficiency of
evidence based on the demurrer to evidence filed by appellant.

 
          The order granting appellant’s demurrer to evidence was a resolution
of the case on the merits, and it amounted to an acquittal.  Any further
prosecution of the accused after an acquittal would violate the proscription
on double jeopardy.[61] Accordingly, appellant’s conviction of any of the
above crimes, even under Criminal Case No. 1651, would trench in his
constitutional right against double jeopardy. 

Criminal Case No. 1655 for Unjust Vexation

          Appellant was charged with Unjust Vexation, defined and penalized

by Article 287 of the RPC, which reads:

          ART. 287. Light coercions. – Any person who, by means of violence,

shall seize anything belonging to his debtor for the purpose of applying the
same to the payment of the debt, shall suffer the penalty of arresto mayor in
its minimum period and a fine equivalent to the value of the thing, but in no
case less than 75 pesos.

Any other coercion or unjust vexation shall be punished by arresto menor or

a fine ranging from 5 to 200 pesos, or both.

The second paragraph of this provision is broad enough to include any

human conduct that, although not productive of some physical or material
harm, could unjustifiably annoy or vex an innocent person.  The paramount
question to be considered is whether the offender’s act caused annoyance,
irritation, torment, distress, or disturbance to the mind of the person to
whom it was directed.[62]

          Appellant’s acts of embracing, dragging and kissing AAA in front of

her friend annoyed AAA.  The filing of the case against appellant proved
that AAA was disturbed, if not distressed by the acts of appellant.

          The penalty for coercion falling under the second paragraph of Article
287 of the RPC is arresto menor or a fine ranging from P5.00 to P200.00 or
both. Accordingly, appellant is sentenced to 30 days of arresto menor and to
pay a fine of P200.00, with the accessory penalties thereof.
 

WHEREFORE, the Court AFFIRMS the January 31, 2008 Court of

Appeals Decision in CA-G.R. CR No. 30045 with MODIFICATIONS. The
Court finds appellant Salvino Sumingwa:

1. GUILTY of QUALIFIED RAPE in Criminal Case No. 1646.  He is

sentenced to suffer the penalty of reclusion perpetua without eligibility for
parole and ordered to pay AAA P75,000.00 as civil indemnity, P75,000.00
as moral damages, and P30,000.00 as exemplary damages.

2. GUILTY of four (4) counts of ACTS OF LASCIVIOUSNESS under

Section 5 (b) Article III of R.A. 7610 in Criminal Case Nos. 1644,
1645, 1649, and 1654.  He is sentenced to suffer the penalty of reclusion
perpetua and ordered to pay AAA P15,000.00 as moral damages and a fine
of P15,000.00, for EACH COUNT.

3. NOT GUILTY in Criminal Case No. 1651.

4. GUILTY of UNJUST VEXATION in Criminal Case No. 1655.  He is

sentenced to suffer 30 days of arresto menor and to pay a fine of P200.00,
with the accessory penalties thereof.

SO ORDERED.